Summary: Ms X complained the Council has failed to provide a suitable education or alternative provision for her son, F, who has not attended school since April 2022. The Council was not at fault as it made appropriate efforts to meet with Ms X about F’s education and has offered an initial package of alternative provision which Ms X has declined. There was fault in its communication and complaint handling which caused a delay in responding to her complaint for which it will apologise.

The complaint

1. Ms X complains the Council has failed to provide a suitable education or alternative provision for her son, F, who has not attended school since April 2022 for health reasons.
2. Ms X says F remains without formal education which is causing distress, frustration and is affecting his social and educational development.

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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. 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)
7. 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

8. I spoke to Ms X about her complaint and considered information she provided.
9. I considered the Council’s response to my enquiry letter.
10. Ms 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

Alternative provision law and guidance

11. 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.
12. ‘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.
13. 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)
14. 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’)
15. 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.
16. 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)

Elective Home Education

17. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.

Education, Health and Care (EHC) plans

18. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
19. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan.

What happened

20. The following chronology will provide a summary of the key events relevant to this complaint. It does not include every detail of what happened.
21. Ms X has a son, F, who in early 2022 attended an independent school (School A) in year one. F has autism, anxiety and complex needs, although at the time he did not have an Education, Health and Care (EHC) plan.
22. In May 2022 Ms X decided to stop F attending School A as it was not meeting his needs. Records show School A informed the Council that F was now out of education and that Ms X had decided to home educate F. The Council registered F as being Electively Home Educated by Ms X. However, a few days later Ms X told the Council she was not home educating F. The Council advised Ms X she should either register F at a local school or educate him at home. Otherwise, it may register F as a ‘child missing in education’.
23. Email records show Ms X told School A she had asked the Council to carry out an Education, Health and Care Needs Assessment (EHCNA) in order to identify an appropriate setting for him. Ms X said she had been advised to apply for a mainstream school for F but she said it would be too disruptive for him to start attending a new school for the remainder of the academic year. Ms X said she was going to abroad in June for summer and that she would offer him education in the interim.
24. In June 2022 the Council wrote to Ms X informing her it had decided not to carry out an EHCNA for F. The letter included Ms X’s right to appeal the decision to the SEND tribunal.
25. Records show Ms X remained out of the country for the summer and for periods during September and October 2022. In October 2022 Ms X made a late appeal to the SEND tribunal against the decision not to carry out the EHCNA for F. Ms X told the tribunal the delay was because she remained abroad and their return was delayed due to a hospital admission. The SEND tribunal accepted Ms X’s late appeal. There is no evidence between September and November 2022 showing the Council considered F’s absence from education or whether to put in place alternative provision.
26. During the start of November 2022 Ms X spoke with a Council officer to discuss F’s education. Ms X said she wanted F to access alternative provision while he was out of school. Ms X said she was due to travel with F abroad again for six weeks so he could access treatment not available in the UK. Ms X wanted F to access education. The Council said it referred Ms X to a Hospital School which provides alternative provision for children who cannot attend school for medical or mental health needs. It also offered a home visit to see F and to find a local school for F to attend. Records show Ms X declined these offers as she did not consider mainstream schools could meet F’s needs.
27. A few days later the Council’s inclusion manager called Ms X. Ms X said the Hospital School would not provide any provision as she was taking F abroad. The inclusion manager invited Ms X to a meeting to discuss F’s education and to find a way forward. Ms X declined the offer. The inclusion manager warned Ms X that as F was not on a school roll or being educated at home then they would register him as a child missing in education.
28. Ms X complained to the Council during November 2022. She complained the Council was failing to provide F with an education. She also complained the Council had registered F as being Electively Home Educated without her consent and was unhappy the Council threatened to register F as missing in education. Ms X said F was unable to attend a school and therefore required Education Otherwise than at School (EOTAS). Ms X was also unhappy about the Council’s decision to refuse to carry out the EHCNA for F.
29. Towards the end of November 2022, the Council issued Ms X with a legal notice. The letter warned the Council may take further action if Ms X was unable to satisfy it that F was receiving a suitable education.
30. In early December 2022 Ms X sent the Council a letter from F’s doctor. The letter outlined F’s health and needs and supported the position that F was unable to attend school for medical reasons. The doctor said F required a specialist curriculum due to his high academic ability. The doctor said the longer-term aspiration was for F to access an appropriate educational setting.
31. Ms X emailed the Council again in late December 2022. She provided a letter from a Doctor in a different country who suggested F should receive virtual 1:1 education. Ms X said F was currently receiving treatment abroad and required suitable provision to access.
32. Records indicate F remained abroad until late January 2023. In early February 2023 the Council wrote to Ms X inviting her to a meeting with the SEND team to discuss F’s education. The Council said it had identified a school for F to attend and that the headteacher was happy to attend the meeting. There is no evidence Ms X responded to the letter.
33. In mid-February the Council agreed to carry out an EHCNA for F. At the end of February 2023 the inclusion manager emailed Ms X asking to meet with Ms X to discuss putting a package of education in place for F while it carried out the EHCNA. The inclusion manager offered the meeting by phone, online or in person.
34. Ms X responded to the inclusion manager. She said she had asked for alternative provision since F stopped attending school. Ms X asked the Council to come back to her with proposals of what provision it would provide, given F’s needs. Ms X said F would be unable to engage in person for the foreseeable future. Ms X raised further concerns that the Council had no communicated the EHCNA decision or provided any timescales.
35. A few days later the inclusion manager emailed Ms X with proposals. It offered one hour 1:1 online tutoring each day with a primary school teacher. It also offered access to a social and mental wellbeing practitioner. The Council reiterated its offer to meet with Ms X to discuss F’s education.
36. Ms X responded and said the offer was inadequate to meet F’s needs. She said F required at least three hours per day tutoring. Ms X said F may not properly engage if the teacher was not qualified and said he needed time to transition between lessons. Ms X declined the social and mental wellbeing practitioner. Ms X said F was years ahead of pupils of the same age and required provision at a level to meet his needs. She said the offer was not fit for purpose. Ms X also wanted the provision to take place at a suitable time while he was receiving treatment abroad.
37. In early March 2023 the SEND tribunal issued a consent order confirming the Council was now willing to carry out the EHCNA for F.
38. F remained abroad until early April 2023. Ms X continued to correspond with the Council, unhappy that it did not respond to her counter proposal.
39. The Council did not formally respond to Ms X’s complaint in line with its complaints procedure. It told us it believed it had provided Ms X with sufficient responses to her concerns in the correspondence referenced above. It issued a formal final complaint response to all of Ms X’s complaints in April 2023 including:
• Placing F on the Elective home Education register and making an inappropriate suggestion of alternative provision via the Hospital School. The Council said it registered F as being home educated following communication from School A. It removed F from this but registered him again after Ms X said she would educated him abroad for the remainder of the 2022 summer term. It said the offer for F to receive provision from the hospital school was appropriate.
• The Council’s intention to take formal action against Ms X for F’s non-attendance at a school. The Council said F was not on a school roll and was absent, abroad for long periods and the Council, at the time had no evidence showing why F was unable to attend school. Following the letter from F’s doctor the Council took no further action and did not progress the notice.
• Not providing relevant communication and timescales around the EHCNA decision. The Council apologised for not communicating this information to Ms X in a timely manner.
• Failing to respond to her requests for alternative provision. The Council said it had made multiple offers to meet with Ms X during the early part of 2023 without success. It had also offered what it believed to be a suitable alternative provision package which Ms X had declined. The Council said its duty did not extend to delivering alternative provision whilst a child is out of the country.
40. Ms X remained unhappy and complained to us.
41. The Council told us that its initial offer of alternative provision is very much a starting point and it may consider revising it once officers have met with Ms X. It says however, to date, that Ms X has not actively engaged in discussions with it.

My findings

42. The Council became aware that F was out of School in May 2022. School A told the Council that Ms X had decided to electively home educate F, so it was not Council fault for adding F to the home education register. When Ms X told the Council this was not the case it appropriately took him off the register advising Ms F to register F at a school. There is no fault by the Council from May to July 2022
43. Between September and November 2022 there is minimal contact between Ms X and the Council. Ms X spent periods abroad, evidenced by the late SEND appeal against the decision not to carry out an EHCNA. However, the Council let the matter drift during this period. There is no evidence the Council reviewed F’s education during this period. It was aware F was out of School but there is no evidence it considered F’s needs, made contact with Ms X or considered, at the time, what action to take around the fact F was not in education. That is fault. However, given Ms X and F were abroad for much of this period I cannot say the outcome would have been any different.
44. Between November 2022 and April 2023, the Council became much more involved with Ms X. In response to her requests for alternative provision the Council has offered meetings, made referrals to a hospital school and offered a visit to discuss Elective Home Education. All of which Ms X declined. It also offered to find F a mainstream primary school which Ms X also declined. The Council appropriately registered F as a Child Missing in Education.
45. Following medical evidence, the Council offered F a package of alternative provision which Ms X declined as unsuitable. Statutory guidance and law does not define full time education and 1:1 provision need not be full-time. Given F is just 6 years old with documented medical and health issues I cannot say the Council’s offer was inappropriate as a starting point. It remains open to Ms X to meet with the Council to discuss F’s alternative provision package going forward.
46. Ms X wanted the Council to provide alternative provision while F was abroad. There is nothing in guidance or law which says the Council’s duty to provide education extends to children abroad.
47. Ultimately, since November 2022 the Council has made appropriate efforts to meet with Ms X to discuss F’s education and to put in place alternative provision while it carries out the EHCNA. It is open to Ms X to meet with the Council at any time to discuss how to move forward.
48. The Council’s communication and handling of Ms X’s complaints however have been poor. It did not respond to her initial complaints at stage 1 in November 2022, instead providing a final response to all Ms X’s concerns in April 2023. That delay was fault and caused Ms X uncertainty and distress. The Council also accepted it did not properly keep her up to date with the EHCNA timescales for which it apologised. It has now provided her with a point of contact which is appropriate.

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Agreed action

49. Within one month of the final decision the Council agreed to:
• Write to Ms X and apologise for frustration and uncertainty caused to her by the delay in responding to her complaints.
• Review its procedures for children out of school to ensure it carries out regular reviews of children it knows are missing in education. This is to ensure it takes timely, appropriate action to support the child back into education without delay or to consider whether it is appropriate to offer alternative provision.
• Remind relevant staff to respond to complaints in a timely manner in line with its complaint handling policy.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman