Summary: Miss X complained the Council has failed to provide alternative provision for her daughter, F since May 2021 when she stopped attending school. The Council was at fault. It failed to have sufficient oversight or consider whether to put alternative provision in place for F during the 2021/2022 academic year. It then further failed to have oversight or put in place enough education for F between September 2022 and May 2023 after it accepted the alternative provision duty. The Council agreed to make payments to Miss X to recognise the injustice this caused.

The complaint

1. Miss X complained the Council failed to provide alternative provision for her daughter, F since May 2021 when she was unable to attend school due to anxiety and depression.
2. Miss X also complained about the Council’s decision not to carry out an Education, Health and Care needs assessment at the end of 2022.
3. Miss X said F missed out on two years of education which has caused distress and uncertainty.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

9. I have investigated events from May 2021 until May 2023 when Miss X brought her complaint to us. Miss X can make a new complaint about events after May 2023 relating to F’s education.
10. I have not investigated Miss X’s complaint about the Council’s decision not to carry out an Education, Health and Care (EHC) needs assessment. This is because that decision had a right of appeal to the SEND tribunal and it was reasonable for Miss X to have used that right.
11. In any case, since Miss X complained to us, the Council decided to carry out an EHC needs assessment. If Miss X has any concerns about that process, it is open for her to make a new complaint to the Council.

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How I considered this complaint

12. We spoke to Miss X about her complaint and considered information she provided.
13. We considered the Council’s response to our enquiry letters.
14. Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

Alternative provision

15. 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.
16. 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)).
17. 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)
18. 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. We consider 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.
19. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore councils should retain oversight and control to ensure their duties are properly fulfilled.

Education Health and Care (EHC) Plans

20. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
21. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.

What happened

22. Miss X has a daughter F, who in 2021 attended a mainstream secondary school. In mid-2021 F stopped attending school due to anxiety and depression. Miss X said she tried to get F into school however she refused.
23. Records show F’s school submitted a ‘report a child with attendance issues’ form to the Council in May 2021. This explained F was not attending school due to reasons of anxiety. The school outlined it had tried various strategies and interventions, including offering a part time timetable which were either declined or had not worked.
24. The Council told me at the time there was no medical evidence or professional involvement to suggest a mainstream setting was unsuitable for F. The Council however said it has no records in place prior to September 2022 to evidence or support any involvement or consideration from it regarding F’s education.
25. F remained out of school from for the duration of the 2021/2022 academic year and there is no evidence showing the Council had any involvement or carried out any oversight with F’s education.
26. In June 2022 F’s school and a medical professional from Hospital and Outreach completed a ‘medical advice form’ and sent it to the Council. The form outlined F’s lack of education since May 2021. It said F suffered from anxiety which triggered self-harming which makes it ‘incredibly difficult’ for her to attend school. The medical form recommended initiating a part time timetable at the Hospital School or other alternative provision outlined F in the short term with the aim of reintegrating her back into the mainstream environment. The form confirmed F was on the waiting list for CAMHS (Child and Adolescent Mental Health Services).
27. Following this referral the Council put in place media studies and language tuition for F at home for two hours a day which began in September 2022. A meeting was held in October 2022 with Miss X and other professionals to try and rebuild the relationship between F, the Council and the school. The Council referred F’s case to its Social Emotional and Mental Health Panel.
28. The panel met in October and recommendations were made to refer F to a Hospital School and to provide parental support. The Council said Miss X declined this as she did not believe it met F’s needs, however I have not seen evidence to support this. The panel also recommended F’s school request an EHC needs assessment. The school submitted this in December 2022.
29. The limited tuition remained in place for the rest of 2022 and attendance records show F engaged and was present for her tuition for October. However, from November 2022 onwards there is evidence of F missing tuition due to Miss X cancelling sessions for various reasons including F’s health. F was only present for a few sessions during November and December 2022. The tuition stopped at the start of January 2023.
30. In December 2022 the Council’s health panel recommended and offer of a tuition package and support from the Hospital School. This consisted of a mix of sessions at home during January and February with a view to F attending the Hospital School after half term to join small classes. The package included an offer of tuition in GCSE core subjects. The Council said Miss X verbally declined the offer, however again there is no evidence to support this.
31. Miss X complained to us in November 2023. She complained F had not received education since she stopped attending school in May 2021. She also complained that F did not have an EHC Plan despite being unable to attend school. We asked the Council to provide a complaint response as it had not the opportunity to do so already.
32. The Council provided a complaint response to Miss X in January 2023. The Council said F had received tuition at home in English, Maths and languages since September 2022. The Council said it was progressing a request for F’s EHC needs assessment and would make a decision shortly. The Council said it had made various offers to support Miss X and F including support from the Hospital School which she had declined. The Council also pointed out Miss X cancelled F’s tutor without giving a reason. Miss X escalated her complaint to stage 2 of the complaints process.
33. In mid-January 2023 the Council declined to carry out an EHC needs assessment for F. It sent Miss X a letter outlining its decision which included how she could appeal the decision to SEND tribunal.
34. The Council contacted Miss X in mid-March to inform her it had commissioned a new tutor to deliver the 10 hours a week at home until the Hospital School offer was in place. This tuition began a few days later. This consisted of language and general studies/maths.
35. The Council provided a final complaint response at the end of March 2023. It reiterated much of what it said in its initial response.
36. The Council said the hospital school made a formal offer of alternative provision for F. Miss X said limited education was offered but it relied on F attending in person. Miss X said no plan or provision was offered until she was well enough to do so. Due to new evidence about F’s health needs which included F possibly being diagnosed with autism, the Hospital School felt its services were no longer appropriate and withdrew its offer.
37. Due to the change in F’s circumstances the Council agreed in April 2023 to begin an EHC needs assessment for her. Records show the language and general studies tuition continued into May 2023. The Council said this would continue until it made a decision about whether to issue F with an EHC Plan.
38. Miss X remained unhappy and complained to us.

My findings

39. The Council was aware F had stopped attending school in May 2021 and that strategies and interventions from F’s school had not worked. There is no evidence or records that show the Council had any oversight or consideration around whether to put in place alternative provision for F during the 2021/22 academic year. That is not in line with relevant guidance or our expectations as outlined in paragraph 18 and was fault.
40. Had the Council considered F’s individual circumstances it is likely, on balance, it would have taken action and put alternative provision in place sooner. It leaves some uncertainty about exactly what provision F would have received. However, given F’s personal circumstances at the time and the recommendations from the hospital school, it is unlikely on the balance of probabilities that this would have been full-time education.
41. Following the referral in June 2022 the Council decided it did owe F the alternative provision duty and put limited home tuition in place from September 2022. This stopped in January 2023 before further tuition began in March and continued into May 2023. The Council made referrals to the Hospital School which it said Miss X declined, however, as explained above I have not seen evidence this was the case.
42. Overall, between September 2022 and May 2023 F received some limited provision however it was inconsistent and did not consist of any core subjects such as match, English and science. There was limited oversight from the Council and no evidence of a reintegration plan. While meetings took place to discuss F’s education, these meetings did not result in a plan for her education. This lack of oversight meant, on balance, sufficient alternative provision was not in place which is fault. There is uncertainty about exactly how much education F could have coped with during this period. However, had the Council had oversight and a plan in place, on balance she could have coped with tuition in core subjects at a minimum.
43. Since the scope of this complaint, we have already made service improvement recommendations with the Council for an investigation with similar fault. This included the Council reviewing its procedures to ensure it considers the circumstances of children out of school at the time and keeps records to demonstrate its decisions of whether to make alternative arrangements for their education. Given this, I have decided not to make any further service improvement recommendations.

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Agreed action

44. Within one month of the final decision the Council agreed to:
1. pay Miss X £3000 to recognise the impact of F's loss of education for the 2021/2022 academic year.
2. pay Miss X £2000 to recognise the impact of F’s loss of education between September 2022 and May 2023.
3. pay Miss X £300 to acknowledge the distress and uncertainty caused to her by F’s lack of education during the 2021/2022 academic year and between September 2022 and May 2023.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman