Summary: Mrs B complained the Council has failed to provide her daughter with any alternative provision since she has been unable to attend school for medical reasons. We find no fault with the Council’s decision not to provide Mrs B’s daughter with alternative provision. However, it was at fault for its communication with Mrs B and its complaints handling. The Council has agreed to our recommendation to apologise to Mrs B for her injustice.

The complaint

1. Mrs B complained the Council has failed to provide her daughter, C, with any alternative provision since she has been unable to attend school for medical reasons.
2. Mrs B says the matter has caused distress and upset. She also says C’s anxiety has worsened because of the Council’s failures.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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.
6. 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.
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)

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How I considered this complaint

8. I considered information from Mrs B. I made written enquiries of the Council and considered information it sent in response.
9. Mrs B and the Council 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

Alternative provision

10. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
11. The term “suitable education” is defined as efficient education suitable to the child’s age, ability and aptitude and any special educational needs they may have.
12. There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
13. 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)
14. 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])

Education, Health and Care needs assessment

15. A child with special educational needs may have an Education, Health and Care (EHC) plan. An EHC plan describes the child’s special educational needs and the provision required to meet them.
16. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. The timescale for an EHC needs assessment is a maximum of 20 weeks.
17. If an EHC needs assessment is requested, councils must issue the parents with a decision notice within six weeks of receiving the request. If the council decides an assessment is not necessary or it decides not to issue an EHC plan after an assessment, it must provide reasons for this to the parent or young person and notify them of their right to appeal that decision to the SEND Tribunal.

What happened

18. This chronology provides an overview of key events and does not detail everything that happened.
19. Mrs B’s daughter, C, started attending school less regularly. Her GP contacted the school in February 2022 and said C had significant health issues and therefore she would not always be able to attend school.
20. Mrs B applied for an EHC needs assessment for C in April. The Council agreed to complete an assessment.
21. C did not return to school after the Easter holidays. Mrs B contacted the school on 25 April and said C’s mental health was poor and she was suffering from school-based anxiety. She provided the school with a letter from C’s GP on 29 April. This said C’s mental health was poor and she could not attend school.
22. The school shared its concerns about C’s attendance with the Council. The Council suggested early help intervention. Early help means providing support as soon as a problem is identified in a child or young person’s life. It also said it would arrange a meeting with Mrs B to look at the reasons for C’s absence and develop a plan of support and reintegration.
23. The school contacted Mrs B to complete an early help consent form. Mrs B said she wanted specific information about what support it would provide and how it would help to get C back into school.
24. Mrs B emailed the Council on 16 May and said C had been away from school for 15 days. She said C could not attend school and therefore she wanted it to provide alternative provision.
25. Mrs B chased the Council for a response on 23 May.
26. The Council emailed Mrs B on 24 May and asked her to attend a meeting on 6 June to discuss and implement a plan of support for C. It said someone from the early help team would attend to answer her queries. It said it was considering whether a reduced timetable would be helpful for C. It also asked when the GP would see C again and review whether she was still unfit for school.
27. Mrs B responded on 30 May and said she could not attend on 6 June. She suggested meeting the following week. She said before the meeting she wanted answers to her questions about early help, as well as a detailed plan of support for C. She asked for its policy on children who are missing education. She said it had failed in its duty to provide alternative provision and there was a lot of medical evidence available to support C’s absence from school.
28. The Council had a meeting with the school to discuss C’s absence. All attendees agreed the school would contact Mrs B to request she provided consent for it to consult with C’s GP. The GP involvement would ensure professional guidance from a medical perspective. The school also said it would offer weekly virtual check-ins to support C and maintain contact with her.
29. The Council emailed Mrs B on 8 June and provided three alternative dates for a meeting. It chased for a response on 15 June. Mrs B responded a few days later and said her advocate could not attend the meeting on the dates it suggested. She also said it failed to respond to her questions from her email of 30 May. She said she needed it to answer her questions so she could make a fully informed decision on how to support C. She said she could not confirm a date to attend a meeting until she had received a response.
30. Mrs B contacted C’s school and said she would not give it permission for it to contact C’s GP. She said its suggestion of a weekly check-in would cause C high anxiety.
31. Mrs B complained to the Council on 10 July about its failure to provide C with alternative provision.
32. The Council and the school met again to discuss C’s absence. The Council said it would complete a home visit to check in on C.
33. The Council went to visit Mrs B and C the following day, but no one answered the door. It emailed Mrs B later that day and offered a reintegration meeting to develop a robust plan of support for C’s return to school. It proposed three dates. Mrs B responded and said she needed answers to her questions before she would agree to a meeting.
34. The Council wrote to Mrs B in late July and said after completing its assessment, it would not issue an EHC plan for C. It provided her with her appeal rights to the SEND Tribunal if she disagreed with its decision. Mrs B appealed to the SEND Tribunal.
35. The Council sent a letter to Mrs B on 3 August and asked for medical evidence from the GP to support C’s absence from school. Mrs B responded and said she had previously provided medical evidence. She said the guidance on school attendance encourages a flexible approach and schools should only request medical evidence when the authenticity of an illness is in doubt.
36. The school emailed Mrs B at the beginning of September and offered a reintegration package for C. It said it could offer 1:1 support in an individual classroom. It said this would be a gradual process.
37. Mrs B provided the Council with information from C’s GP. This said C would not be able to attend school until provision and support was in place.
38. Mrs B contacted the school and said she did not agree with its reintegration package. She said 1:1 support in a school environment was not appropriate.
39. The Council contacted C’s GP and asked for further information to understand her needs.
40. The Council responded to Mrs B’s complaint on 20 October. It said it had been working with her to try to support C back into school. It said it had offered meetings, but she declined them. It said the school asked for her consent to speak with the GP practice so it could draw up a robust plan of support for C. It said it only arranges alternative provision where support from the school on a part-time or full-time basis is not an appropriate response.
41. The Council wrote to Mrs B the following month said C’s irregular attendance at school was unsatisfactory. It said it would consider taking legal proceedings against her if she failed to comply with the law and send C to school.

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Analysis

42. Councils have a duty to provide suitable education 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. Councils will have a duty to provide alternative provision if there is no suitable education available to the child which is “reasonably practicable” for them to access.
43. In C’s case, the Council has reviewed the medical evidence that has been provided. Its view is the evidence from C’s GP is not based on a full clinical review of her needs, it is not detailed and therefore it is not sufficient to provide her with alternative provision. The Council has tried to get further information from C’s GP to understand her needs, but it is still not satisfied it has enough information to justify why she cannot attend school and why alternative provision is appropriate. It is for the Council to decide whether a child’s health needs prevent them from attending school and what weight to give medical evidence.
44. The Council has also attended meetings with the school to understand what support it can offer C. It is satisfied, in the absence of any other medical evidence, the offers of a reduced timetable, 1:1 support and small group sessions is appropriate for C and there is a suitable education available for her which is reasonably practicable for her to access. I appreciate Mrs B strongly disagrees with this and feels C is too unwell to attend school. However, the Ombudsman cannot question the merits of a decision when there is no evidence of fault in the way the decision was reached. The Council has considered everything we would expect it to when deciding not to provide C with alternative provision. Therefore, I do not find fault.
45. While I do not find fault with the Council’s decision making, it was at fault for its communication with Mrs B. Mrs B asked it to respond to her questions in her email of 30 May before she would attend a meeting. The Council failed to address any of these questions in its subsequent emails. If it felt the questions would have been better addressed in the meeting, it should have made this clear. Its failure to do so is fault, which caused Mrs B frustration as she had to repeat her questions.
46. The Council did not directly answer Mrs B’s requests for alternative provision in her emails of 16 and 23 May. I understand the Council’s view is that alternative provision is not appropriate, and it has now explained its reasons in its complaint response. However, it should have responded to Mrs B much sooner. Its failure to do so caused her further frustration.
47. The Council was also at fault for its complaints handling, which has only added to Mrs B’s frustration and upset. Its complaints procedure states it will respond to complaints at stage one within six weeks. In Mrs B’s case, the Council took more than 14 weeks to respond, which is a significant delay. There is no evidence it provided her with any updates when it knew it could not respond by the deadline.

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Agreed action

48. To address the injustice caused by fault, by 26 April 2023 the Council has agreed to apologise to Mrs B for her frustration and upset.
49. The Council should provide us with evidence it has complied with the above action.

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Final decision

50. There was fault by the Council, which caused Mrs B an injustice. The Council has agreed to my recommendation and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman