Summary: Mrs C complains the Council failed to provide her daughter with suitable education provision while she was unable to attend school. Mrs C says her daughter missed out on education and suffered avoidable distress and she spent unnecessary time and trouble in trying to resolve the matter. We have found fault by the Council but consider the agreed action of an apology, symbolic payment and service review provides a suitable remedy.

The complaint

1. Mrs C complains the Council failed to provide her daughter, D, with suitable education provision while she was unable to attend school for the period July 2021 to 28 September 2022. Mrs C says because of the Council’s fault, D missed out on education and suffered avoidable distress and she spent unnecessary time and trouble in trying to resolve the matter.
2. Mrs C also complained about the actions of both the School and Council in their repeated and unnecessary requests for medical evidence and incorrect coding of absence; the quality of the Council’s Education Psychologist’s report which formed part of the appeal to the The First-tier Tribunal (Special Educational Needs and Disability) and the Council’s delay in issuing the Education, Health and Care plan.

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What I have and have not investigated

3. I have investigated Mrs C’s complaint that the Council failed to provide her daughter, D, with suitable education provision while she was unable to attend school for the period July 2021 to 10 December 2021 only.
4. I have not investigated the provision of education to D for the period after 10 December 2021. This is because the Education, Health and Care plan was issued on 10 December 2021 and Mrs C’s right of appeal was engaged from that date and she subsequently appealed including about the issues raised in her complaint to the Ombudsman. In these circumstances, the Ombudsman has no discretion and cannot investigate the later period (please see paragraphs 8 to 10 below).
5. I have not investigated the quality of the Council’s Education Psychologist’s report as this formed part of Mrs C’s appeal.
6. I have also not investigated the Councils delay in issuing the Education, Health and Care plan. This is because I am satisfied the remedy proposed by the Council for the delay and Mrs C’s time and trouble in relation to this aspect of her complaint was reasonable and in line with what the Ombudsman would recommend and an investigation about this part of the complaint would not achieve a better outcome for Mrs C.

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The Ombudsman’s role and powers

7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal (Local Government Act 1974, section 26(6)(a), as amended). 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.
10. We cannot investigate a complaint if someone has appealed to a tribunal (Local Government Act 1974, section 26(6)(a), as amended).
11. Complaints which concern children with Education, Health and Care (EHC) Plans, where the period out of education coincides with an appeal against the content of the EHC Plan, the period from the date the right of appeal is engaged (this is the date the Plan is issued not the date the appeal is lodged) until the appeal process is completed is usually outside the Ombudsman’s jurisdiction. The Ombudsman has no jurisdiction where a parent has appealed to the SEND Tribunal from the date the appeal right arises until the appeal process is completed.
12. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
13. 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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How I considered this complaint

14. I read the papers provided by Mrs C and discussed the complaint with her. I have considered some information from the Council. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.
15. 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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What I found

Background and legislation

Special educational needs

16. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.

• The EHC plan is set out in sections which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

17. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Alternative provision

18. 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. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. 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)
20. 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)
21. 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’)
22. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says:
• councils should arrange alternative education provision as soon as it is clear a child will be absent for health reasons for more than 15 days;
• councils should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision;
• alternative provision should address the needs of individual children through an appropriately tailored approach;
• councils should not have inflexible policies which prevent children from getting the right type of provision and a good education; and
• ‘virtual classrooms’ and learning platforms should generally not be used as the sole provision, though in some cases virtual education may be suitable for some children.
23. 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])
24. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
25. 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Key events

26. Mrs C made a request for an EHC assessment for D at the end of June 2021. This explained D was unable to access mainstream school with increasing frequency due to depression and high levels of anxiety. Mrs C noted there was a real risk of D disengaging completely from school and she would then require alternative provision which would need to be one to one tuition at home. The EHCP assessment process continued from July with confirmation in mid-October that an EHCP was to be provided.
27. The school made arrangements to help D return to school at the start of the new term in September. Unfortunately, these immediately broke down.
28. The Council says it first became aware that D was no longer attending school when the school contacted it on 20 October 2021. Mrs C says she was in contact with the Council towards the end of July about D’s absence from school and has provided email correspondence which highlighted her concerns about the lack of support being offered by the school. This correspondence refers to the expectation that a suitable timetable and right support could be provided to help with D’s return to school for the start of the new term in September.
29. For children who cannot attend school because of illness or permanent exclusion the Council provides education through a service called Access to Education (A2E).
30. The school made a referral to A2E on 26 November 2021. This stated that D had been out of school since September and had been unable to access education due to a deterioration in her mental health, high levels of school based anxiety and a feeling of inability to access the learning in the way it was presented in school. The school asked for help from A2E to re-engage D with learning although it was noted it may not be possible for her to return to the school. It was noted that if a specialist placement was made D would need support in transitioning to this provision but in the first instance D would need help feeling able and willing to engage with some learning.
31. The Council says A2E telephoned Mrs C in early January 2022 but was not able to make contact. There was a discussion with Mrs C about what A2E could offer on 25 January. Mrs C explained D had been offered private tutoring from the school and other support. It was noted this was similar to what A2E could offer D but they would consider further and revert. A2E advised they could offer 3 hours at the end of January.

My findings

32. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made. When the Council became aware the arrangements made by the school were not suitable, it became responsible for D’s education provision.
33. The Council was aware at the end of June 2021 that D was unable to access mainstream school with increasing frequency due to depression and high levels of anxiety which may well lead to complete disengagement when alternative provision would be required. This was referred to by Mrs C in her request for an EHC assessment. The school made arrangements in discussion with Mrs C and D about re-engaging D into the school from the new term in September but these arrangements immediately broke down.
34. The Council has accepted it was made aware D was not attending school on 20 October. However, it did not receive a referral to A2E until the end of November and did not contact Mrs C until January 2022. The Council was aware, during that time, that D was not receiving a full-time education because she was unable to attend school.
35. The statutory guidance says that councils should take a flexible approach to arranging alternative provision and this should be tailored to each child’s individual needs and health problems. It also says that provision should be arranged as soon as it is clear a child will be absent from school for more than 15 days.
36. I am satisfied the Council was aware from 20 October 2021 that D was unable to attend school and the school had not been able to provide suitable full-time education provision. The Council should have taken steps to arrange suitable alternative education for D as soon as possible from 20 October 2021. However, there was avoidable delay in arranging alternative provision for D after the Council was aware she would not be returning to school.
37. This was fault which meant that D went without suitable education for longer than she could have done.
38. Where we identify fault which resulted in a loss of educational provision, we will usually recommend a payment of between £200 and £600 a month to acknowledge the impact of that loss. Considering D’s age, the stage of her education and the lack of education she received, I consider the Council should pay £600 for the missed education between 20 October and 10 December 2021 (when the period of my investigation ends). I am also satisfied that the lack of education caused both D and Mrs C distress, frustration and inconvenience for which the Council should pay a financial remedy.
39. I have noted the Council has already confirmed to the Ombudsman in response to the outcome of a different investigation that it will review all complaints made to it in the last 12 months concerning children out of school; consider if it has applied its section 19 duties correctly in light of our previous decision and; if it finds it has erred, take action to remedy any injustice.

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Agreed action

40. Within one month of my final decision, the Council will:
• apologise to Mrs C for the delay in arranging suitable, alternative education provision for D between 20 October and 10 December 2021;
• pay Mrs C £600 to recognise the education D missed during that time;
• pay Mrs C £200 to recognise the distress, frustration and inconvenience she and D were caused as a result.
41. Within three months of my final decision the Council should complete a review to ensure it meets it statutory duty to arrange alternative provision for children unable to attend school because of illness or otherwise as quicky as possible and can monitor any arrangements made through its A2E service to ensure they remain in place and provide suitable education.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman