Summary: Ms X complained the Council failed to provide her daughter, Y with a suitable full-time education since she could not attend school for medical reasons. We found fault by the Council causing Y to miss out on education she was entitled to. The Council has agreed to apologise and make a payment to Ms X and her daughter in recognition of the injustice caused to them.

The complaint

1. Ms X complained the Council failed to provide her daughter (Y) with a suitable full-time education since she could not attend school for medical reasons in April 2023. She also complained the Council refused to complete an Education Health and Care Plan needs assessment.
2. Ms X stated Y missed education she is entitled to, and her mental health declined. She also stated she has been financially disadvantaged and put to avoidable time and trouble.

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The Ombudsman’s role and powers

3. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

7. I have not investigated Ms X’s concerns about the Council’s decision to refuse her request for an Education, Health and Care Plan needs assessment (EHCNA) for Y. Ms X used her right of appeal to the SEND tribunal and so we cannot investigate this matter for the reasons explained in paragraphs 3 and 4.

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How I considered this complaint

8. As part of my investigation I have:
• considered Ms X’s complaint and discussed it with her;
• made enquiries of the Council and considered its response
• considered the relevant law and guidance;
• considered our guidance on remedies; and
• set out my initial thoughts on the complaint in a draft decision statement and invited Ms X and the Council to comment.

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What I found

9. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
10. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
11. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
12. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
13. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
14. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.

Suitable education

15. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
16. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
17. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Ombudsman focus report

18. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
19. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
20. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

The Council’s Policy and procedures

21. The Council states it has a range of provision in place for children who cannot attend school due to exclusion, illness or otherwise, in line with statutory guidance. It says its medical needs teaching service provides provision for up to 110 children. Places are agreed by a referral panel where there is evidence from a health consultant or mental health professional that a child is too unwell to attend school. Schools can make referrals to the service directly when they consider it is necessary, or the Council can make a referral to the panel.
22. Where the referral panel decide not to offer a place at its medical needs teaching service alternative provision is provide via its pupil tuition team, online learning or by an alternative provision provider, if available.
23. It said it expects schools to arrange the suitable support and intervention for pupils, as set out in the statutory guidance. The Council provides help when those efforts do not result in the required improvements.

Education Health and Care (EHC) plan needs assessment

24. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.

What happened

25. What follows is a summary of the key events. It does not show everything that happened.
26. Ms X’s daughter Y has a diagnosis of Autism. She also has anxiety in the school environment.
27. In April 2023 Y stopped attending her school because of her anxiety and sensory needs.
28. On 29 June Ms X contacted the Council. She explained Y was not attending school and her school was not supporting her. The Council was unaware Y was not attending school before this.
29. On 3 July the Council advised Ms X to ask for a meeting with Y’s school and its Special Educational Needs Coordinator (SENCO), to see what options were available and suitable for Y.
30. On 5 July Ms X told the Council that she was hoping to move Y to another school through a managed transfer. She said she hoped Y would attend the new school for 2 hours per day over the next fortnight.
31. On 18 July Ms X told the Council Y’s transfer to a new school was unsuccessful. She said it was suggested Y may need a medical needs teaching service referral. The Council told Ms X to work with Y’s school to find the right support for her.
32. In September Y’s school arranged online tuition for 8 hours and 40 minutes a week, in the three core subjects, for Y.
33. Also in September Ms X requested an Education Health and Care Plan needs assessment for Y.
34. In October the Council told Ms X it would not assess Y. It told Ms X she could appeal its decision to the SEND tribunal. Ms X did so.
35. In January 2024 Ms X contacted the Council to ask about its section 19 (s19) duty and the medical needs teaching service. Ms X explained Y’s school was providing her with online learning, but she was having problems engaging with it especially in maths. She asked the Council to provide Y with some in person learning and for tuition in extra subjects. The Council told Ms X that it is the responsibility of Y’s school to provide her with a suitable education.
36. In February Ms X complained to the Council. She complained that Y was not receiving a suitable alternative education. She said Y’s school could not provide her with one-to-one teaching and the online package she is receiving is all they offer. She asked for the Council to provide Y with a full-time education, with some of it in person.
37. In March the Council replied. It said:
• Y’s school has put in various support, intervention and provision for Y including a reduced and bespoke timetables and one to one intervention. Ms X declined the school’s offers.
• Y is receiving online tuition provided by her school. Y’s school hoped to use the online tuition to help reintegrate Y into school, but the reintegration element was refused.
• Y does not need a statutory assessment of her needs and so does not need special educational provision. It considers that Y’s school is suitable for her and that with support she should be able to integrate back into school. Therefore it has not provided alternative education for Y.
• it has made a referral to its pupil tuition team to help support Y reintegrate into her school.
38. Unhappy with the Council’s reply Ms X escalated her complaint. Her grounds of complaint remained the same. The Council’s reply reiterated the offer to refer Y to the pupil tuition team. It said Ms X could explore getting support from the Children Adolescent Mental Health Service (CAMHS) for help with Y’s anxiety issues.
39. Meanwhile the Council decided, before the tribunal hearing, that it would offer Y an Education Health and Care Plan needs assessment.
40. In April Ms X visited the pupil tuition team. She felt the service would be suitable for Y. However Y’s attempts to visit were unsuccessful and she said she did not want to attend.
41. Unhappy with the Council’s actions Ms X complained to the Ombudsman. Her grounds of complaint remained the same.
42. We made enquiries of the Council. In response it said:
• in the first instance it was for Y’s school to arrange her education. The Council did not consider the s19 duty applied in June 2023 as it was for Y’s school to explore what could be done to maintain her school place. In July 2023 Ms X said Y was transferring to another school, so a s19 duty did not apply.
• in October 2023 Y’s school was providing her with online education to help her engage and support her back into school. Also it found Y did not meet the requirements for a EHCNA and so her school’s offer remained suitable. Therefore the s19 duty did not apply.
• it accepted that it could have offered a referral to its pupil tuition team earlier and opportunities for reviewing Y’s case were missed.
• it decided Y’s EHCNA on 6 December 2024. It decided issue an EHC plan for Y.
• Y continues to be unable to access the provision made to her and it is working with Ms X to find alternative provision that meets her needs. The Council has agreed to fund this provision until Y’s EHC plan is finalised. However before it can fund Y’s alternative provision it needs to complete checks as the providers identified by Ms X are not registered alternative provision providers.

Finding

43. The law is clear that councils must provide alternative provision under Section 19 if no suitable educational provision has been made for a child who is missing education through exclusion, illness or otherwise.
44. When a child refuses to go to school because of anxiety, the Council needs to consider whether the education offered to the child is “reasonably available and accessible”.
45. The Council became aware on 29 June 2023 that Y was not attending school and so its section 19 duty became engaged from this point.
46. The evidence shows the Council made enquires once it learnt Y was not attending school. It was told Y was transferring to another school and so it did not consider if alternative education was necessary. I do not criticise the Council for waiting to see if the new placement would work before considering if alternatives were necessary.
47. On July 18 Ms X told the Council Y’s transfer to a new school was unsuccessful and she remained on roll at her school. The Council said Ms X should engage with Y’s school to see if Y could be offered support to help her reintegrate. Following the summer break Y’s school put in place online tuition with a view to her integrating back into school. Again, I do not criticise the Council for waiting to see if Y could reintegrate before it considered alternatives.
48. In January 2024 Ms X told the Council that Y was not engaging with online learning and needed a broader package of education. The Council referred Ms X back to the school. There is no evidence the Council reassessed if the education offered to Y was “reasonably available and accessible” to her following Ms X’s report. This is fault.
49. I note the Council was unaware of Ms X’s concerns about Y’s provision until she notified them. The Council should have kept Y’s case under review to see how she was engaging with the provision put in place and if she was attending school again. There is no evidence it did so. This is fault.
50. In April 2024 the Council made a referral to its pupil tuition service. I consider this would have happened sooner had the identified fault not occurred.
51. Y did not engage with the pupil tuition service and the Council has agreed to fund alternative provision for Y. I consider this offer would have been made earlier had the identified fault not occurred. While I accept Y may not have engaged with the pupil tuition service if the offer had been made earlier, it would likely have led the offer of other alternative provision sooner.
52. The identified fault means Y has missed education she was entitled to from January 2024 until December 2024. The Ombudsman’s guidance on remedies for missed education suggests a financial remedy of between £900-£2400 per term. It considers factors such as what, if any, educational provision was made.
53. I recommend the Council make a payment of £1250 per term in recognition of Y’s missed education. This figure considers that Y was receiving some online tuition but that this did not equate to a full-time education and that she was not engaging with parts of the provision offered.

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Agreed action

54. Within in one month of my final decision the Council will:
• Apologise in writing to Ms X for the identified fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• pay Ms X £3750 for the benefit of Y, to recognise the educational provision she missed. This comprises of £1250 per term for the three terms between January 2024 and December 2024.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman