Summary: Ms X complained the Council failed to arrange alternative provision for her child, W, when they stopped attending school in November 2022. The Council was at fault for failing to consider Ms X’s medical evidence. This caused Ms X avoidable upset and frustration for which the Council will apologise and pay her £150.

The complaint

1. Ms X complained the Council failed to arrange alternative provision for her child, W, when they stopped attending school in November 2022 because of their health. Ms X said this had a significant impact on W’s mental health and led W to feel isolated and unsupported. Ms X said this also caused her frustration and upset.

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The Ombudsman’s role and powers

2. 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)
3. 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.
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I have considered:
• all the information Ms X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

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 provision.
10. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section B sets out the child’s special educational needs. Section F details the special educational provision the child needs and section I details the school the child will attend. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the special educational needs and disabilities (SEND) Tribunal or the council can do this. 

What happened

12. W stopped attending the school they were on roll at, school A, in November 2022. Ms X says W was out of education because of their anxiety.
13. In early 2023, school A sent the Council a referral for medical needs education for W. The referral is used to identify a child who may be unable to attend school because of their health, so the Council can consider if it should arrange alternative provision.
14. From March 2023 to October 2023 the Council arranged for W to have access to a live online home tuition service. The service is one of the Council’s alternative provision providers. The Council agreed W could watch recordings of the live classes as they did not feel able to participate in the live sessions.
15. In September 2023, the Council reviewed how the home tuition service was working for W and heard W had not been watching the recordings. As a result, it cancelled the tuition in October 2023. The Council asked school A to arrange for W to have access to an online school service while it prepared to try and reintegrate them back into the physical school. Ms X says the online school was unsuitable for W and they could not access it because of their needs.
16. The Council held an alternative provision decision-making panel in early October 2023, to decide if it could do anything else to support W. The panel decided if W had medical evidence that showed they could not access education, then it could continue online home education but even so, that would not be suitable as W was unable to access the existing offer.
17. An officer in the Council’s alternative provision team told Ms X of the panel’s decision and asked if she had any medical evidence. In late October 2023, Ms X responded to say W was struggling to access the online school and enclosed a letter from W’s GP dated December 2022. The letter noted W was unable to cope with the social aspects of school and had high anxiety. It said W was unable to attend class ‘at the moment’ and asked if W could be excused from school until early January 2023. The Council did not respond.
18. Ms X also sent the Council a diagnostic report for W in December 2023, which said W is autistic. However, she sent it to members of staff in the Council’s SEND team, because the Council had recently decided not to issue W with an EHC Plan.
19. Following an appeal to the SEND Tribunal, the Council ultimately issued W with an EHC Plan in late April 2024. It named school A in section I. Ms X appealed sections B, F and I to the SEND tribunal.
20. In response to my enquiries, the Council said Ms X never sent it any medical evidence in relation to W.

Findings

What I can and cannot investigate

21. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months from first having notice of something to complain to us about what a council has done. “First having notice” is the wording used in our legislation. It means the point in time when we decide the person should have known enough to complain. (Local Government Act 1974, sections 26B and 34D, as amended)
22. Ms X complained about W’s education dating back to November 2022. However, she did not complain to the Ombudsman until July 2024. Ms X was aware of the issues around W’s education as they happened so the part of her complaint dating from November 2022 to July 2023 is late. I have seen no good reason why Ms X could not have complained to us earlier so I cannot investigate that period. My investigation therefore starts in July 2023.
23. The law also says we cannot investigate a complaint when someone has used a right of appeal, reference or review to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended). This includes the SEND Tribunal. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
24. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the educational placement in the EHC Plan, we cannot investigate a lack of alternative educational provision. The period we cannot investigate starts from the date the council makes the appealable decision and ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
25. The Council issued W’s EHC Plan in April 2024 and named school A in section I. Ms X felt school A was unsuitable for W so she appealed to the SEND Tribunal to change the school named in the EHC Plan. In the meantime, W did not attend school A. W’s non-attendance at school A occurred as a consequence of Ms X’s disagreement about the school named in W’s EHC Plan. I therefore cannot investigate her complaint about a lack of alternative provision from April 2024 until the date her appeal was concluded.
26. Since her complaint to the Ombudsman, Ms X raised concerns about how the Council engaged with the Tribunal and her appeal. The Ombudsman cannot consider these matters either because they are linked to Ms X’s appeal.

Alternative provision

27. After receiving a referral for medical needs education from school A, the Council arranged for W to receive alternative provision in the form of a live home tuition between March and October 2023. This was despite the fact it had no evidence W was out of school on medical grounds. However, after a review the Council ended the alternative provision because W was not accessing it at all. This was a reasonable step to take. The Council asked school A to arrange access to an online school while it considered if it should arrange more alternative provision. It held a decision-making panel without delay in October 2023, where it heard the Council had no medical evidence to show W could not attend any school. It asked Ms X to provide evidence W could not attend school because of medical needs.
28. Ms X sent two pieces of evidence; the 2022 GP letter and an autism diagnosis report. However, Ms X sent the diagnosis report to a different team who were not involved in alternative provision, as part of her argument that W should have an EHC Plan. It was not reasonable to expect the officers in that team to identify the report should be sent to the team dealing with alternative provision. Therefore, the only evidence Ms X submitted to evidence W was unable to attend any school because of medical needs was the GP letter.
29. The Council was at fault for failing to consider that letter. It is for the Council to decide what weight to give to any medical evidence. Where the Ombudsman finds fault with how a council has considered medical evidence, we consider whether the evidence is persuasive enough that we can say the council would have likely agreed it should arrange alternative provision on medical grounds. In W’s case, the medical evidence is insufficient for me to be able to say, even on balance of probabilities, that but for the fault the Council would have decided it showed W needed alternative provision. Therefore the fault caused Ms X avoidable upset and frustration but I cannot say it caused W an injustice.
30. Although the Council’s fault did not cause W an injustice, I am concerned that the Council’s decision-making panel noted that even if Ms X could evidence W was out of education on medical grounds, it would only be able to reinstate the online home tuition, which W was unable to access. Alternative provision must be suitable for a child’s needs and should not be restricted to a particular format or style, if that is not accessible by the child.

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Agreed action

31. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Ms X for the upset and frustration she felt because of its failure to consider whether the 2022 GP letter evidence W was unable to attend any school because of their health. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Ms X £150 in recognition of that injustice.
32. The Council will provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman