Summary: Mrs X complained that the Council failed to make suitable alternative provision for her daughter, C, when she was unable to attend school because of anxiety. We found no fault on the Council’s part.

The complaint

1. Mrs X complains that the Council failed to make suitable alternative provision for her daughter, C, when she was unable to attend school because of anxiety. Mrs X says that, as a result, C has missed out on education, the family has suffered distress and she has had to work reduced hours to look after her daughter.

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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. 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)
4. 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)
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.

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What I have and have not investigated

6. I have investigated Mrs X’s complaint that the Council failed to make suitable alternative provision for her daughter when she was out of school. My investigation covers the period April 2022 to November 2022 when Ms X complained to us.
7. I have not investigated issues Ms X has raised in relation to the Council’s decision to prosecute her for non-attendance. These issues will be considered by the court during the legal proceedings.

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How I considered this complaint

8. I have considered all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided.
9. Mrs X 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

Legal and administrative background

Education, health and care plans

10. A child with special educational needs (SEN) may have an education, health and care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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.
11. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

Education for children out of school

12. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can use various legal powers where it considers a child’s non-attendance to be unauthorised, including prosecution or issuing a fine. If a council decides to prosecute a parent, they will be formally cautioned and interviewed under the Police and Criminal Evidence (PACE) Act 1984.
13. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
14. Where a child is permanently excluded from school, or if they are unable to attend “because of illness or other reasons”, section 19 of the Education Act places a duty on councils to arrange suitable alternative education. The only exception is when suitable provision is already being made.
15. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN). It should be full-time, unless the physical or mental health of the child means that full-time education would not be in their best interests. The education can be made up by two or more part-time provisions.
16. The Council should attempt to arrange this alternative provision as soon as it is clear that the child will be away from school for more than 15 school days, although there is no statutory timeframe.
17. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them 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)
18. 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 to medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
19. 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? Ensuring children out of school get a good education, published in July 2022)
20. We made six recommendations. We said councils should:
• consider the individual circumstances of each case and be aware they 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 reaching decisions;
• choose, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• 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; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
21. Where a council chooses enforcement, it has no parallel duty to make alternative out-of-school provision for the child in question. This is because the child has a place at school and there is no good reason for them not attending.

Key facts

22. This chronology sets out an overview of key events and does not detail everything that happened.
23. Mrs X’s daughter, C, started a new primary school in September 2021 having been home educated since November 2020 because her previous school was unable to meet her needs.
24. From November 2021 there were discussions between Mrs X and the school about C’s anxiety and attendance which began to deteriorate. The school sent work home for C. This worked for a short time, but C stopped attending school on 20 April 2022. The school offered to include C in lessons by allowing her to join lessons online. It also offered one-to-one lessons online or at home. It says none of these options were taken up by Mrs X. She says this was because C’s home was a safe space and she did not want to see anyone from school.
25. In the meantime, Mrs X asked the Council to complete an EHC needs assessment. The SEN panel refused the request saying C had a low level of special educational need which was being met by her school. Mrs X appealed against the decision to the SEND Tribunal. In April 2022 the Council agreed to complete an assessment.
26. On 3 May Mrs X wrote to the Council saying C’s mental health was such that she was too unwell to attend school. She requested alternative provision.
27. On 6 May C’s GP wrote a letter to the school saying she was unable to attend school because of her mental health problems and referred to her being diagnosed with anxiety.
28. On 16 May Mrs X sent medical evidence to the Council.
29. On 9 June Hospital Education and Outreach (HEO) received a referral from C’s school. It told the school the referral was incomplete because there was no medical referral form signed by a health professional. The school said Mrs X had said the GP would not sign the medical referral form. It also said it had offered a member of staff to do one-to-one lessons with C at home but Mrs X had refused.
30. On 24 June the GP telephoned HEO saying he was not happy to sign the medical referral form because he had not seen C but confirmed a referral had been made to CAMHS. He said he would return the form stating he could not sign it but would include letters and reports.
31. On 4 July HEO received the medical referral form from the GP who wrote “unable to comment” in the section asking whether the pupil was fit enough to attend school full-time. The doctor sent an educational psychologist (EP) report, a letter to the school explaining why C could not attend and a referral letter to CAMHS. HEO contacted CAMHS. It confirmed no mental health issues had been identified. HEO then contacted the school explaining it would not take the referral. Mrs X contacted HEO querying this. She said C was seeing a paediatrician about autism spectrum disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD). HEO explained that a diagnosis of ASD or ADHD alone was not a reason to be signed off school for medical illness.
32. C was diagnosed with ASD.
33. On 21 July the school referred the matter to the Education Welfare Service (EWS) following advice from the Early Help and Intervention team (‘the team’). The EWS did not accept the referral because the school had marked C’s absences as ‘authorised’ so it did not meet the criteria.
34. On 30 July the team wrote to Mrs X saying that, if she wanted alternative provision, this could be discussed through an Early Help Assessment. Mrs X declined this assessment as she did not feel it was necessary. The team explained it had suggested the school make a referral to the EWS so a way forward could be agreed. It accepted it may have been helpful for this action to have been taken sooner.
35. On 8 August the EP sent an email to the Council saying Mrs X had received her assessment report and was not happy with it. She said the report indicated C was not able to attend a physical setting at that time but any education other than at school (EOTAS) package should have a goal towards a physical setting.
36. A way forward meeting took place on 29 August. Following this the Council issued a draft EHCP naming C’s current school. Mrs X sent a speech and language therapist’s (SALT) report to the Council for inclusion in the EHCP and requested EOTAS instead of the school.
37. On 6 October there was a meeting to discuss the draft EHCP. The Council’s notes of the meeting state “there was a significant difference in opinion surrounding parents’ and professionals’ opinions on C’s presentation and what provision was required to meet her needs”. The notes state the Access and Inclusion team had offered C a package of tuition and activity days for children with cognitive, physical and emotional conditions to aid her transition back into school.
38. On 24 October the Council wrote to Mrs X confirming it would name C’s current school in the EHCP as it could meet her needs. It confirmed Mrs X could appeal if she disagreed with the placement.
39. On 31 October the Council issued the final EHCP.
40. On 2 November the Council told the school it held no information stating C was unable to attend school for medical reasons. It said it did not agree that the absences were authorised and explained that CAMHS had said there were no grounds for C not to attend school. The school confirmed it would treat C’s absence as unauthorised and refer the matter to the EWS.
41. The same day the Council also told Mrs X it considered C was medically fit to attend school and it had agreed to fund a package of tuition to be delivered alongside a reduced timetable at the school to aid her return.
42. On 10 November there was a reintegration meeting between Mrs X, the school, the Access and Inclusion team and the Education Welfare Service (EWS). It was confirmed that the school, Autism Spectrum Assessment Team (ASAT) and the SEN team would develop a plan and this would be shared with Mrs X.
43. The Council advised the school that C’s absence should be recorded as unauthorised so the school changed its attendance records. On 15 November the school made another referral to EWS. A letter was sent to C’s parents informing them of this and warning them of possible court proceedings for non-attendance.
44. The following day the Council received a medical letter confirming C had been diagnosed with autism, ADHD and significant anxiety.
45. On 28 November the Council issued a revised final EHCP including social care advice following an assessment. Mrs X later appealed to the Tribunal against the placement named in section I of the EHCP.

Analysis

46. Mrs X says the Council should have arranged alternative educational provision for C as soon as it was clear she would be absent from school for more than 15 days.
47. The Council has a duty to provide alternative educational provision for a child who is permanently excluded or who, because of illness or other reasons, would not receive suitable education without such arrangements being made. However, as case law has established, if a Council has arranged for the provision of education which is suitable for the child and which is reasonably practicable for them to enjoy, it is not under a duty to provide alternative education simply because, for one reason or another, the child is not taking advantage of it. In such circumstances, the child’s parents are under a duty to ensure their attendance at school.
48. In this case, the Council considered there was insufficient evidence of a medical reason why C could not attend school. It was satisfied there was a suitable education available for her at her current school which was reasonably practicable for her to access.
49. I appreciate Mrs X strongly disagrees with the Council’s decision. However, I do not consider there are grounds to question that decision because there is no evidence of fault in how it was reached.
50. We expect councils to consult all professionals involved in a child’s education and welfare and consider the parents’ views when reaching a decision. If, having considered all relevant evidence, the council decides the school place remains available and accessible to the child, this should be clearly documented and communicated promptly to the parents. I am satisfied that was the case here.
51. The Council considered information from various professionals and from the school and Mrs X. It was consistent throughout that a suitable education was available for C at her school and she was able to attend with support. HEO declined the referral because C’s GP said he had not seen her and was ‘unable to comment’ on whether she was able to attend school and CAMHS said no mental health issues had been identified.
52. In August an EP stated C was unable to attend a physical setting at that time and recommended EOTAS with a goal towards a physical setting. However, the duty to arrange alternative provision does not automatically apply because there is an expert opinion that says the child is unfit to attend school, particularly where there is conflicting professional advice, as in this case. Ultimately, it is a matter for the Council to decide having weighed all the evidence.
53. The acid test is whether educational provision offered by the Council is available and accessible to the child. The Council considered a suitable education was available and could be accessed by C with the support it had offered to put in place. The Council made various attempts to re-integrate C into school over a period of several months but, as Ms X did not take up these offers, it ultimately decided to prosecute for non-attendance.

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Final decision

54. I do not uphold Ms X’s complaint.

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Investigator's decision on behalf of the Ombudsman