Summary: Mrs X complains the Council failed to arrange suitable educational provision for her son, C, when he became unable to attend school due to health reasons. She complains the Council incorrectly told her that it needed an educational psychologist report to consider an alternative placement for C. We have upheld Mrs X’s complaint because there was fault by the Council. C missed out on education for five months. To remedy this, the Council has agreed to apologise, make Mrs X several payments, including for C’s missed education and the cost of the report, and make several service improvements.

The complaint

1. The complainant, Mrs X, complains, on behalf of her son, C, that the Council:
1. failed to arrange suitable alternative provision for C between November 2021 and September 2022. Mrs X says C was unable to attend school from November 2021 due to illness;
2. failed to arrange and seek advice from an educational psychologist as part of C’s EHC Needs assessment; and,
3. provided inaccurate information that the Council required an educational psychologist report so its Specialist Panel could consider a change of placement to a specialist school.
2. Mrs X says the situation caused prolonged stress on the whole family and had an additional impact on C’s mental health.
3. Mrs X says that she had to give up work to care for and educate her son at home without any support from the Council.
4. Mrs X says C’s time out of education had a financial impact on her as she had to provide education for C (including around £100 for an online package of tuition) and funded a private educational psychologist assessment as C’s School and the Council said this evidence was needed to facilitate his change of placement.
5. Mrs X says she has gone to time and trouble looking into support and chasing services at the Council for information.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. 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

11. I spoke with Mrs X about her complaint. I considered the information sent to me by Mrs X and the Council.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Alternative provision - Inability to attend due to health needs

13. 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. We refer to this as section 19 or alternative education provision.
14. 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))
15. 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”.
16. 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”.
17. 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))
18. 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)
19. 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’)

Educational provision – available and accessible

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)

Focus report

21. 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
22. 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;

23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils must retain oversight and control to ensure their duties are properly fulfilled.

What happened

24. In November 2021, C was enrolled at Secondary School One, a mainstream school. C stopped attending school because his mental health deteriorated. He was struggling to cope at school and he was experiencing thoughts of self-harm and ending his life.
25. The School proposed an alternative part-time timetable and a quiet, safe space at the School for C. These were unsuccessful.
26. On 11 January, Secondary School One contacted the Council because C was not attending school. The School said C was refusing to attend school on mental health-related medical grounds. The School said that it did not have the required medical evidence for Mrs X’s preferred provision for C at Special School Two, a special school which the Council has contracted to provide alternative provision for children with a range of social, emotional and mental health (SEMH) needs. The School said C had recently been discharged from Children and Adolescent Mental Health Services (CAMHS).
27. A Senior Officer in the Council’s Admissions, Attendance and Reintegration team recommended arranging an educational psychologist (EP) assessment and consulting the Council’s Mental Health Support team to allow the Council to decide whether to either:

• take formal enforcement action through its School Attendance team; or
• refer C to its Inclusion Support for a decision on whether to provide an alternative provision placement or tuition.

28. The School said it had already contacted the Mental Health Support team, but would follow up with the team again.
29. Two weeks later, the Council discussed C’s attendance with Secondary School One. The School said C’s phased return to school in December was unsuccessful because C had only managed to attend one morning session. The School was in touch with the Council’s Early Help Service to try to support C’s attendance. The School offered to carry out a home visit and said Mrs X’s preference was for C to attend Special School Two.
30. In early February, the Council spoke with Secondary School One. The School said it had discussed referring C to CAMHS and an EP through the School with Mrs X. The Council said its Inclusion Outreach Service could offer some additional support.
31. In early March, Secondary School One told the Council that C was still not attending school. The School said CAMHS was expected to meet with C the next day and it was not considering attendance proceedings because of C’s anxiety. But, it said C was unable to:

• engage with the Council’s Mental Health Support Team;
• access the online tuition available to him; or,
• access the School’s EP service while he was not attending school.

32. In late March, Mrs X requested an Education, Health and Care Plan (EHC) Needs Assessment for C. She asked the Council to let her know how her request that the Council provide alternative provision for C could be considered by the Council’s Inclusion Support Panel. Mrs X said C had been out of education since November 2021.
33. A week later, a Council Officer in its Special Educational Needs Inclusion team replied. The Officer said if the Council agreed to issue an EHC Plan for C, its Specialist Panel would decide whether a specialist placement was suitable for C. But, this Panel had already taken place for the academic year and it was unlikely there would any available spaces until the following year.
34. In early April 2022, Mrs X asked the Council again to carry out an EHC Needs Assessment for C. Mrs X asked the Council again for information about education the Council would provide while C was unable to attend Secondary School One. She asked about C attending Special School Two.
35. Several days later, the Council Officer said, regarding alternative provision, Mrs X should contact Secondary School One about referring C to Special School Two. It said medical evidence was needed to support the referral. The Council said its Inclusion Support Panel would decide on C’s referral from Secondary School One.
36. In mid-April, C was diagnosed with significant difficulties with verbal/auditory working memory by an educational psychologist (EP), which Mrs X arranged and paid for privately. The EP said C was within the lowest 5% of learners of his age in this skill. The EP said C’s difficulty in this area was likely a significant factor in his difficulties engaging at school and keeping pace with social demands.
37. In May, Secondary School One asked the Council to consider a change of placement for C. The request form completed by the School said:

• since late November 2021, the School had put in place a part-time timetable to help support C’s attendance. But, C had only to attend one day since then;
• the School had put in place a safe and quiet learning space for C, but C was not able to attend;
• the Council’s Early Help team had tried to help with C’s reintegration into school; and,
• C was not coping in a mainstream learning environment. Special School Two was requested by the School and Mrs X.

38. Several days later, the Council’s Inclusion Support Panel decided C was able to access suitable alternative provision at Special School Two without needing an EHC Plan.
39. In late May, the Council wrote to Mrs X explaining it had decided to refuse her request for an EHC Needs Assessment.
40. The Council also said C was not attending school because of anxiety. It said Mrs X needed to contact Secondary School One to ask the School to request a change of placement for C to access alternative provision. It said the Council’s alternative provision was made through Special School Two. It said a request for placement at Special School Two must be considered by the Council’s Inclusion Support Panel and must include medical evidence from CAMHS, a GP or someone else involved in C’s health care which states that he cannot currently attend school because of mental health reasons.
41. On 22 June, the Council’s Inclusion Support Panel considered Mrs X’s request that C should attend Special School Two. It agreed C met the criteria for an alternative provision placement at Special School Two and C had been added to the waiting list for a placement.
42. In mid-July, Mrs X complained to the Council. She said the Council had failed to provide alternative provision for C for since November 2021. Mrs X said Secondary School One was not sending work home for C and C had no other educational options because he was not able to attend the unit based in the school.
43. In August, the Council sent Mrs X its stage one complaint response. It did not uphold her complaint. It said the Council provided the correct advice in April 2022 about its referral process to Special School Two.
44. Mrs X asked the Council to escalate her complaint. She complained the Council told her that, to consider a change of placement to Special School Two, the Council needed a report from an EP. Mrs X said this information was not correct and asked it to reimburse her the cost of the report.
45. In September 2022, C started attending Special School Two.
46. The Council sent Mrs X its final complaint response. It did not uphold Mrs X’s complaint. It said:

• there was a delay in Secondary School One accessing EP advice, but the School was offering provision through online tuition and making arrangements to keep in touch;
• the Council was unable to offer a place sooner at Special School Two. It processed the School’s request for a change of placement and the evidence supported an alternative placement for C at Special School Two from September 2022; and,
• Mrs X arranged and paid for an EP assessment, but this was not needed to refer C to Special School Two. It refused Mrs X’s request for reimbursement.

47. In mid-September, Mrs X complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

Alternative provision

48. Mrs X complains the Council failed to arrange suitable alternative provision for C between November 2021 and September 2022. Mrs X says C was unable to attend school from November 2021 due to illness. Mrs X says, under section 19 of the Education Act 1996, the Council had a duty to arrange suitable alternative provision for C once it became aware he would be unable to attend school for more than 14 days (part a of the complaint).
49. Based on the evidence I have seen, the Council first became aware that C was not attending school on 11 January 2022 when it was contacted by Secondary School One. I have, therefore, considered the Council’s actions from this point onwards.
50. The Council told the School it needed more evidence to decide whether to take enforcement action against C’s parents or arrange alternative provision for C. I do not find the Council at fault here. This was a decision it was entitled to make.
51. But, two weeks later, the Council discussed C’s attendance with Secondary School One again. C was still not attending school. The School said C’s phased return to school in December was unsuccessful because C had only managed to attend one morning session. The School offered to carry out a home visit and said Mrs X’s preference was for C to attend Special School Two. At this point, the Council was aware C had been absent from school, this had been for more than 15 school days and attempts by the School to reintegrate C had not succeeded, which was likely connected with C’s mental health needs. It was also aware that C was unable to access the provision at the School. The Council did not take enforcement action. It is likely, therefore, the Council was responsible for arranging alternative education for C.
52. Based on the evidence I have seen, the Council failed to assess C’s needs or consider alternative provision for him until 22 June when its Inclusion Support Panel considered whether the Council should arrange alternative provision for C at Special School Two. This delay is fault. The Council could have put this to its Inclusion Support Panel much sooner.
53. Special School Two did not have any spaces available for C to start there straight away. But, I find the Council failed to consider and arrange other alternative provision for C between 22 June and the end of the summer term 2022. This is fault.
54. Under the Council’s Medical Provision Guidance, this says the Council can arrange “Medical Tuition” for children unable to attend school because of mental health or anxiety reasons. The Guidance says this service is usually delivered individually or in small groups dependent on need. The Council has also outsourced this provision to Special School Two. Any decision on this provision must also be made by its Inclusion Support Panel. I have seen no evidence the Council considered whether this alternative provision was suitable for C or asked its Inclusion Support Panel to make a decision on this.
55. The Council’s response to Mrs X’s complaint was also inadequate. The Council did not recognise that its service had failed to promptly accept its section 19 duty towards C and C had missed education as a result.
56. I have recommended the Council make a monthly payment of £500 to remedy the injustice to C during this time. When recommending this, I have taken into consideration the fact C did have access to some limited provision in the form of a quiet, safe space at Secondary School One. I have also recommended a payment for Mrs X due to the significant distress and stress caused by the fault.
57. The delay in the Council considering alternative provision for C was likely connected with the evidence it asked Secondary School One to arrange to support any referral to its Inclusion Support Panel. The Council told the School in January 2022 that input from an educational psychologist was needed to decide whether to take enforcement action or progress Mrs X’s request for alternative provision at Special School Two. It is my understanding that the School explained this to Mrs X. This is likely why Mrs X arranged and paid for a private educational psychologist assessment for C. This is particularly so as C was unable to access the School’s educational psychologist service because he was not able to attend school.
58. But, the Council’s action here is not in line with statutory guidance. This 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”. I have seen no evidence the Council took such action. Rather, the Council seemed to place the expectation on the School to provide this evidence. In the Council’s stage one complaint response, it said it would discuss Mrs X’s complaint with Secondary School One to remind it of the School’s duties to support children who were unable to attend school for medical reasons and the alternative provisions available where medical evidence was provided. This suggests the responsibility lies with schools to decide what alternative provision is suitable for a child and arrange this. This is not correct and is fault. The duty lies with the Council, not the School, to arrange alternative provision and take the necessary steps to avoid delays in arranging this.
59. In my view, if the Council had promptly considered liaising with other medical professionals and communicated the action it would take to Mrs X, then it is likely Mrs X would not have felt, understandably, that she needed to pay for an educational psychologist assessment herself. The Council failed to clarify that such medical evidence was not necessary until it responded to Mrs X’s request for an EHC Needs assessment in May 2022. But, Mrs X had already paid for the assessment by this point, which the Inclusion Support Panel considered when reaching its decision on Special School Two. In these circumstances, I have recommended the Council reimburses Mrs X the cost of the assessment, which she would have not paid for if the fault identified here had not occurred (part c of the complaint).

Request for an EHC Needs Assessment

60. Mrs X complains the Council failed to arrange and seek advice from an educational psychologist as part of C’s EHC Needs assessment (part b of the complaint).
61. But, in May 2022, the Council refused Mrs X’s request for an EHC Needs assessment. When deciding whether or not to carry out an EHC Needs assessment, the Council was not under a duty to seek advice and information from medical professionals, such as an educational psychologist. This would only apply if the Council decided to carry out an EHC Needs assessment. The Council did not decide to proceed with an assessment and, when writing to Mrs X with its decision, correctly told her about her right to appeal this decision to the SEND Tribunal. I do not find the Council at fault.

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Agreed action

62. Within four weeks of my final decision, the Council has agreed to:
1. apologise in writing to Mrs X for the fault causing injustice identified above;
2. make Mrs X a payment of £300 for the for the significant stress and distress caused by the fault identified;
3. consider Mrs X’s invoice/receipt for the private educational psychologist assessment and reimburse the cost in full. This is likely to be £475; and,
4. make Mrs X a payment of £500 for each school month between 24 January and end of the summer term 2022 that the Council failed to arrange alternative provision for C, meaning he missed out on education. This covers a total of five school months (after deducting holidays), meaning the Council should make a payment of £2,000 in total, which is to be used for C’s educational benefit.
63. Within three months of my final decision, the Council has also agreed to make the following service improvements:

• review its policies and procedures to ensure the Council retains oversight and responsibility for its duties to children unable to attend school, including when it is clear from contact with the school that a child has been or is likely to be absent from school for 15 days. The Council should consider including the Ombudsman’s six recommendations on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time (see paragraph 22 above);
• circulate a reminder to staff that the duty to arrange section 19 alternative provision lies with the Council, not Schools. This reminder should include that, for children who cannot attend school because of health needs, statutory guidance says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, they 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”. The Council should ensure this expectation is clearly set out in any policies and procedures; and,
• ask a Senior member of staff in its teams involved in arranging alternative provision to review this decision and share any identified learning with their teams.

64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation.
66. I have decided to uphold parts a and c of Mrs X’s complaint. This is because I have seen evidence of fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which the Council has agreed to.
67. I have decided not to uphold part b of Mrs X’s complaint. This is because I have not seen evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman