Summary: Miss X complained the Council failed to provide her son, F with alternative provision after he stopped attending school in January 2022. The Council was at fault for failing to ensure F received a suitable education between May and November 2022. It agreed to pay Miss X a total of £1550 to acknowledge F’s loss of education and the distress and time and trouble caused to her. It also agreed to carry out service improvements.

The complaint

1. Miss X complained the Council failed to provide her son, F, with alternative provision after he stopped attending school in January 2022. Miss X further complained the Council then named a ‘mainstream primary school’ in his final Education, Health and Care (EHC) plan despite being unable to find a mainstream school which could meet his needs.
2. Miss X says F remained without education until November 2022 when she moved to a different council area. She said the matter had a significant impact on F’s education and social development and caused her distress and time and trouble.

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What I have and have not investigated

3. Miss X appealed to the SEND tribunal regarding the naming of a ‘mainstream primary school’ in F’s EHC plan. Therefore, I did not investigate that element of the complaint because it was outside of our jurisdiction.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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.
7. 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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

9. I spoke to Miss X about her complaint and considered information she provided.
10. I considered the Council’s response to my enquiry letter.
11. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

Education, Health and Care plan (EHC) plan

12. Children with complex needs may require an Education, Health and Care (EHC) plan. This is a legal document which sets out a description of a child’s needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
13. Councils are responsible for making sure all the arrangements set out in in the EHC plan are put in place.
14. The Council has a legal duty to ensure the educational and social care support set out in a final EHC plan is delivered. This duty is non-delegable.

The SEND tribunal

15. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended plan is issued.

Alternative provision law and guidance

16. 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. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have.
17. If a child is unable to attend school because of illness, the council must make alternative arrangements once the child has been absent for 15 days, either consecutively or cumulatively.
18. ‘Otherwise’ is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling.
19. In all cases, councils must consider the individual circumstances of each particular child and the available evidence in deciding whether it has a statutory duty to provide alternative provision. The Council must be able to evidence how it made its decision. Councils may need to make decisions in cases where they do not have all the evidence they would like.
20. 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)

What happened

21. Miss X has a son, F, who was of primary school age at a mainstream school in the 2021/22 academic year. F has autism, Attention deficit hyperactivity disorder and struggles with his mental health.
22. Between September and December 2021 records show F received two fixed term exclusions and was absent for various other periods, most of which were authorised. Miss X said the exclusions affected his mental health and how he engaged at school.
23. At the end of 2021 Miss X asked the Council to carry out an EHC assessment for F. The Council agreed to do so and informed Miss X of its decision in January 2022.
24. F’s school excluded him again in January 2022. The exclusion letter from F’s school provided details of online learning provision it would setup during the exclusion period. Miss X informed the school and the Council that she had decided not to send him back to school until an alternative school that could better meet his needs was found. Miss X told the Council she would seek a specialist school following the conclusion of the EHC assessment and envisaged F being out of school until at least September 2022.
25. In March 2022 the Council completed the EHC assessment and agreed to issue F with an EHC plan. The Council issued the draft EHC plan in early April 2022 and offered Miss X a virtual meeting to discuss any concerns. Following the meeting Miss X submitted her preferred schools, including independent specialist schools, that she wished the Council to consult with.
26. The Council issued F’s final EHC plan at the end of April 2022. It decided a mainstream school could meet F’s needs and therefore named the type of school as ‘mainstream’ in section I. The Council sent Miss X a letter informing her of the right of appeal to the SEND tribunal. The Council confirmed it had sent consultations to Miss X’s preferences as well as some other mainstream schools.
27. F remained out of school with access to limited education from his school which he remained on roll at. Records show in early May 2022 Miss X looked into referring him to school C which specialised in providing home-based work for children with mental health issues but required a letter from F’s doctor in support.
28. Records show that all of the schools the Council consulted with replied they could not meet F’s needs. Records show the Council told Miss X it was the duty of F’s school to provide education. Miss X requested Education Otherwise than at School (EOTAS) while it continued consulting for a placement.
29. At the end of May 2022 F’s school confirmed it could not meet F’s needs going forward. Records of the meeting show the school accepted it was sending home minimal work for F and was not providing him with an education.
30. Miss X complained to the Council in two separate letters in May and June 2022. She complained about the outcome of F’s EHC assessment and the content of the final EHC plan. Miss X also complained F was not accessing any education and the Council had failed to arrange suitable alternative provision.
31. In June 2022 Miss X provided a letter from F’s GP to the Council which said in that in their opinion, attending his school was detrimental to his mental health. The Council made a referral to the School C however, School C did not consider home teaching was appropriate and did not accept F’s referral.
32. In August 2022 Miss X appealed to the SEND tribunal. She appealed against the naming of a ‘mainstream’ school in section I and also appealed against various aspects of the provision outlined in section F.
33. The Council provided its final complaint response to Miss X in August 2022. It said the Council had not received sufficient information from a qualified professional to confirm F was unable or unfit to attend school due to his mental health issues. The Council said therefore F remained on roll at the school. It said the school remained legally responsible for F’s education and provision.
34. Miss X remained unhappy and complained to us.
35. In November 2022 Miss X moved to another council area and the Council transferred F’s EHC plan to the other council.

The Council’s response to my enquiry letter

36. The Council said it was aware during the EHC assessment process that F was unable to attend school. The Council said its view is that it did not and has not had a duty to provide alternative provision because there was no professional evidence to support Miss X’s view that F could not attend due to health or medical reasons.
37. The Council confirmed Miss X and F had moved to a different council area and it has transferred responsibility for F’s EHC plan to that council. Miss X’s new council area will continue working with the SEND tribunal in relation to her appeal.

My findings

38. The Council has a statutory duty to provide education in cases where children are not able to attend school because of medical conditions or otherwise. A lack of medical evidence does not absolve the Council of its duty to provide children with a suitable education. ‘Otherwise’ could include any reason for absence from school. So, even without medical evidence, the Council has a duty to consider whether to arrange suitable alternative education provision. We expect Council’s to consider a child’s individual circumstances and decide, at the time, whether it has a statutory duty to provide alternative provision.
39. F stopped attending school in January 2022 after Miss X decided it was detrimental to his mental health. The Council became aware in February 2022 that F had not attended school for more than 15 days. However, F’s school was available for him to attend and at this time there was no evidence, medical or otherwise which showed it was unsuitable. The school was providing some work for F and had not said at that time it could not meet F’s needs. There is also no evidence of any specific correspondence between February and May from Miss X requesting alternative provision. On balance, the Council was not at fault for not providing alternative provision between February and May 2022.
40. The Council issued F’s final EHC plan at the end of April 2022 and named a ‘mainstream’ school as his placement. Miss X disagreed with this and used her right of appeal to the SEND tribunal to consider whether that was appropriate. I have however considered the Council’s duty to provide a suitable education in the meantime.
41. Following the issuing of F’s final EHC plan F’s school told it that it could no longer meet his needs. Miss X also sent in a letter from F’s GP supporting his absence from school. The Council said it had no duty to provide F with alternative provision because F’s school was ‘legally responsible’ for F’s education. That is not correct as although F remained on roll at his school it had told the Council it could not meet F’s needs. All the other placements the Council consulted with said the same. This meant F was without a suitable school to attend from May 2022 onwards and so the Council had a duty to consider whether to provide alternative provision while it sought to find one. Not doing so was fault.
42. The Council was aware F was not receiving a suitable full-time education between May and November 2022. Where a school does not make appropriate arrangements for a child who is missing education through illness or otherwise, councils must intervene and make such arrangements. The Council made no attempt to provide F with alternative provision during this period which was fault. It meant F went without a suitable education from May 2022 until he moved to another council area in November 2022.

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Agreed action

43. Within one month of the final decision the Council agreed to:
• pay Miss X £1350 to recognise F’s loss of education between May and November 2022 when he was out of school and without a suitable school to attend. Miss X should use the payment for F’s benefit as she sees fit.
• pay Miss X a £200 symbolic payment to acknowledge the distress and time and trouble caused to her during the time F was out of school.
44. Within two months of the final decision the Council agreed to remind relevant staff that the Council has a duty to consider individual circumstances, at the time, in deciding whether it has a statutory duty to provide alternative provision for children out of school due to illness, exclusion or otherwise. The Council should ensure relevant staff properly record the decision and the reasons for it at the time.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman