Summary: Mrs X complained the Council did not provide her child, Y, with alternative provision when they were unable to attend school for several months due to mental health matters. The Council was at fault. It did not consider whether it had a statutory duty to provide alternative provision for Y as soon as it became aware. The Council has agreed it will apologise to Mrs X and Y for the distress, frustration and uncertainty the matter caused them and for the education Y missed. The Council will make a symbolic payment to Mrs X and Y to recognise this. The Council will also remind staff of the duty it needs to consider to arrange alternative provision for children out of school due to health reasons, in line with guidance.

The complaint

1. Mrs X complained the Council did not provide her child, Y, with alternative provision when they were unable to attend school for several months due to mental health matters. As a result, Mrs X said this negatively affected Y’s education and mental health. It also caused Mrs X distress and frustration. She wants the Council to apologise, provide Y with support to access their education and a financial remedy to acknowledge the education they missed.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I spoke with Mrs X and considered the information she provided.
6. I considered the information the Council provided.
7. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Alternative provision

8. 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 of statutory school age who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. The only exception to this is where the physical or mental health of the child is such that full-time education would not be their best interest.
9. ‘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.
10. 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.
11. The statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs 2013’, states that while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days.
12. 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)

Education, Health and Care Plans

13. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

What happened

14. Mrs X’s child, Y, is of statutory school age and attends a school to receive their education.
15. In September 2021, Y stopped attending their school due to mental health matters. In the same month, the School told the Council about Y’s lack of attendance and said Y had an EHC Plan. However, this was not the case as Y did not have an EHC Plan. The School informed the Council it was providing support to Y to help them re-engage with their education. The Council told the School to contact its Special Educational Needs and Disability (SEND) Team and the Early Help Team for further support.
16. Y remained out of school but the Council received no further contact from the School or Mrs X.
17. In May 2022, Mrs X contacted the Council. She said Y had been absent from school since September 2021 due to mental health matters. She also said Y had special educational needs. Mrs X asked the Council for support to help Y re-engage with their education.
18. In July 2022, Mrs X requested the Council’s SEND Team to complete a statutory assessment for an EHC Plan with Y.
19. In August 2022, Mrs X complained to the Council. She said the Council had failed to respond to her concerns and as a result, Y was still without education and was now significantly behind.
20. Later in August 2022, the Council responded to Mrs X and arranged a meeting with her to discuss putting a plan in place for Y to access their education. Following the meeting, the Council contacted an Educational Psychologist for them to complete the statutory assessment for Y to have an EHC Plan in place. The Council also said the Educational Psychologist would look into implementing strategies to support Y with their education.
21. In response to my enquiries, the Council said since August 2022:
• the Educational Psychologist had completed the assessment for an EHC Plan and was providing ongoing support to Y;
• an EHC Plan had been finalised in December 2022;
• the current school was suitable to deliver the required provision to Y;
• the SEND Team was supporting Y with attending school again with a plan in place to help Y re-engage with their education.

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Findings

22. In September 2021, the School informed the Council Y was not attending school. At the time, the Council thought Y had an EHC Plan and so advised the School to contact its SEND Team for further support. It was not aware this was not the case. The Council did not have evidence the School was not suitable to meet Y’s needs. Following the discussion in September 2021, the Council received no further communication from the School or Mrs X that Y was struggling with or not accessing education. As the Council was not fully aware of the situation and did not have the correct information, the Council was not at fault between September 2021 until it received communication from Mrs X in May 2022.
23. In May 2022, Mrs X told the Council Y had been absent from school since September 2021 due to mental health matters and asked the Council for support. In July 2022, Mrs X approached the Council’s SEND Team and asked it to complete an assessment for the possibility of Y to have an EHC Plan. The Council failed to respond to Mrs X’s concerns until August 2022, when Mrs X complained to the Council. It was now aware Y had been struggling with attending school for several months due to health reasons. It should have considered whether it had a statutory duty to provide alternative provision for Y as soon as it became aware. Not doing so was fault.
24. In addition, 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 Y with alternative provision between May 2022 and July 2022. This was fault.
25. Following Mrs X’s complaint in August 2022, the Council acknowledged Mrs X’s concerns and put a plan in place to support Y with re-engaging with their education. Since then, it had taken action to ensure Y had suitable support. I am satisfied the Council took appropriate action from August 2022.

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Agreed action

26. Within one month of the final decision, the Council agreed it will:
• apologise to Y for the distress the matter caused them and for the education they missed between May 2022 and July 2022; and
• provide them with a symbolic payment of £750 to recognise this.
27. Within one month of the final decision, the Council agreed it will:
• apologise to Mrs X for the distress, frustration and uncertainty the matter caused her and provide her with a symbolic payment of £100 to recognise this.
28. In addition, within one month of the final decision, the Council will remind relevant staff that it 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.
29. The Council will provide us with evidence it has complied with the above actions.

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Final decision

30. I have now completed my investigation. The Council was at fault. It has agreed to our recommendations to remedy the injustice it caused to Mrs X and Y.

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Investigator's decision on behalf of the Ombudsman