Summary: Mrs X complained the Council failed to make suitable education provision for her son, who has had limited school attendance since March 2021. We upheld her complaint, finding the Council gave inadequate attention to his case during the 2021/22 academic year when aware of his absences. This caused injustice to Mrs X and her son as the Council failed to ensure he received satisfactory education. The Council has accepted our findings and we set out at the end of this statement the action it has agreed to remedy their injustice.

The complaint

1. I have called the complainant ‘Mrs X’. She complains the Council has failed to make suitable education provision for her son, who I will call ‘Child Y’.
2. Mrs X says as a result Y has been out of school and received no satisfactory education since March 2021. This has worsened his mental health. It has also caused distress and put strain on Mrs X who has had to take time away from work to meet Y’s needs.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
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. Before issuing this decision statement I considered:

• Mrs X’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence exchanged between Mrs X and the Council about the matters forming the complaint, which pre-dated our investigation;
• information provided by the Council in response to my written enquiries;
• relevant law, Government guidance and council policy as referred to in the text below;
• relevant guidance produced by this office.

9. I also gave Mrs X and the Council chance to comment on a draft version of this decision statement. I took account of any comments received before finalising this statement.
10. 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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What I found

Legal and Administrative Background

Relevant law and guidance re: special education needs

11. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and arrangements to meet them.
12. The Government publishes statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’). This includes advice to schools where pupils have special education needs but do not have an EHC plan. It recommends they should involve specialists if a child’s progress is not as expected. It says schools and local authorities should work together to provide local services to include education psychologist advice, specialist teachers and support services.
13. The Code sets out the procedure for carrying out EHC assessments and producing EHC plans. The guidance follows the law contained in the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must decide within six weeks whether to agree to the assessment;
• it must assess needs and develop EHC plans “in a timely manner”. It should complete steps as soon as practicable;
• it should decide whether to issue an EHC plan within 16 weeks;
• the point from requesting an assessment until issue of the final EHC plan should usually take no more than 20 weeks.

14. There are rights of appeal to the SEND Tribunal if the Council:

• decides not to carry out an EHC needs assessment; or
• decides after an assessment, a child does not need an EHC plan; or
• issues a final EHC plan and the parent disagrees with the content of that.

15. Where, after an appeal, the Council agrees to issue an EHC plan, Regulations say the Council must do so “as soon as practicable and in any event within 14 weeks”. This applies in cases where a council has agreed to assess following a parental appeal, where the SEND Tribunal has issued a consent order stating the Council will issue an EHC plan.
16. We cannot investigate where someone has appealed to the SEND Tribunal about any of the decisions listed in paragraph 14. In addition, the courts have established that if someone has appealed to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. For example, if a person disagrees with the placement named in an EHCP, we cannot seek a remedy for the lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

Relevant law and guidance re: alternative provision

17. 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 should usually 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.
18. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
19. The education provided by the council must be full-time unless the council decides 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)
20. The law does not define full-time education but children with health needs should have provision 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, because of its greater intensity. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
21. 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? published July 2022
22. We recommended Councils should:

• consider the individual circumstances of each case. They may need to act whatever cause of the 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;

Council structure

23. The Council’s Assessment and Planning service carries out EHC needs assessments and draws up EHC plans.
24. Under the umbrella of ‘education support services’ the Council provides a Teaching and Learning Provision (TLP) service. This provides alternative education provision to pupils absent from school because of illness or medical need. The service focuses on reintegration. It accepts referrals via schools. It will provide alternative provision where it receives:

• evidence of a child’s medical treatment plan, drawn up at consultant level;
• an additional needs plan, setting out what reasonable adjustments are made for the child; and
• an attendance certificate confirming 15 days of absence because of illness or medical need.

25. Another part of ‘education support services’ is the Council’s Interim Provision Service (IPS). This provides alternative provision to pupils who have an EHC plan but who are not on the roll of any school and awaiting a school placement.

Council Section 19 policy

26. The Council has sent me two versions of its policy for meeting needs under Section 19 of the Education Act 1996. It produced the first in September 2022. It updated the policy in May 2023.
27. The policy begins by quoting the relevant section of the Act. It then refers to Department for Education guidance on school attendance. It explains that this places an onus on schools and the Council to “promote good attendance and reduce absence including persistent absence” and “ensure every pupil has access to a full-time education”. It explains that where pupils become disengaged from learning or do not attend school “for reasons related to their mental health and wellbeing” the Council must ensure they have reasonable adjustments and support in place.
28. Next, the policy considers pupils who are absent from school because of illness or medical need. It explains the role of its TLP service as I have explained above.
29. Next, the policy considers children absent from school for reasons ‘otherwise’ to that of illness or exclusion. It reiterates that: “where a child or young person with SEND is experiencing a barrier to learning or participation, including around their mental health and wellbeing, the Local Authority has a responsibility to ensure that reasonable adjustments and support are in place to overcome those barriers”. It says it should do this “before putting alternative provision in place”.
30. The policy then reminds officers of their discretion, under Section 61 of the Children and Families Act 2014. This says they can “arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school”.
31. It says that considering education other than at school is therefore part of the Section 19 duty. It says the Council “discharges this duty through the ISEND assessment and planning service when determining the most appropriate provision for an individual child”.
32. The policy then considers children with special education needs. It refers to its local offer which says “the highest priority for all staff working in schools and service delivery is to ensure that pupils with Special Educational Needs and Disabilities (SEND) in East Sussex are supported to achieve the best possible outcomes in life.” It says this engages in turn the Council’s duty to meet education needs under Section 19. So, education support service will work with “the education setting, child or young person and their family to assess any underlying needs and recommend reasonable adjustments and provision to meet those needs”. The policy then refers to a series of other support services for schools within its area – including its Education Behaviour and Attendance Service, Communication Learning and Autism Support Service and Educational Psychology Service.
33. Since May 2023 the Council has amended the policy, introducing supplementary guidance for staff on its implementation. This stresses the need for staff in the ISEND assessment and planning service to respond to any requests for alternative provision. It stresses the need for clear decision making and recording when responding to requests. It says that decisions not to provide alternative provision may be re-considered if circumstances change and officers should do this, in cases where progress towards full-time education is not sufficient. It also stresses the importance of management oversight, especially in cases where a child is educated out of County.

Key facts

34. Y is a child of primary school age, who is now in year 6 of his education. He will be in year 7 and so of secondary school age, from September 2023.
35. From March 2021 onward Y’s attendance at primary school dropped (he was in year 4 of his education at the time). During 2021 local health services assessed Y and diagnosed he has an autistic spectrum disorder. He has a pathological demand avoidance profile. He has sensory processing difficulties and emotional difficulties. He experiences anxiety leading to withdrawal. He often expresses feelings of low self-esteem and will self-harm. When asked to do certain tasks he may experience ‘meltdowns’. This has included when going to school.
36. Y attended a school outside the Council’s area in a neighbouring county. The school referred him to the education psychology service in that neighbouring county. That service recommended steps to try and reintegrate Y into school. In May 2021, it also referred him to a school liaison officer from that county. The school also put Y on a reduced timetable.
37. However, despite these efforts Y’s attendance continued to fall. He was attending less than 50% of his schooling by July 2021. The school contacted the Council alerting it to Y’s situation. The approach went to its Teaching and Learning Provision (TLP). The Council said the TLP could not support Y as he did not meet its referral criteria (see paragraph 24).
38. In the same month Mrs X asked the Council to undertake an education, health and care needs assessment for Y. The Council refused. It noted Y had received detailed reports from education psychologists with plans for reintegration to school. It said it wanted evidence of the attempts made to use those.
39. In August 2021 Mrs X contacted the Council saying that it was wrong to refuse Y alternative provision. She received a reply from its TLP. It explained the terms for its use similar to how I described in paragraph 24. It said that Y did not meet its criteria. It noted he attended school in the neighbouring area. It said “his needs focus on a special educational need” and so he should access support services from the neighbouring county.
40. Mrs X provides a copy of an email from the beginning of September 2021 where she challenged this reply. She received no reply to this email. The Council has told me it has no record of receiving it.
41. Y returned to school in September 2021 (year 5) but his attendance remained poor.
42. Also, in September 2021 Mrs X appealed the Council’s decision not to assess Y’s needs, providing further information. In October 2021 the Council reconsidered its position and agreed to carry out an education, health and care needs assessment.
43. In December 2021 the Council received an email from the school which told it of Y’s limited attendance. It said: “[Y] only comes into school twice a week at the moment […] and that's if he feels he is able to come in at all. For example, this week he came in on Monday for 45 minutes and then again on Wednesday for one hour. He was not able to stay any longer as he couldn't manage it. When Covid hit back in March 2020, he then didn't come into school until the September where he came regularly for a few weeks and then he has not attended for a sustained period of time since, that was over a year ago now.  His current attendance is 25.8%”.
44. Later that month the Council decided that having carried out an education, health and care needs assessment for Y it would not issue him an EHC plan. It considered that Y’s needs could be met by his school without needing a plan.
45. In March 2022, Mrs X appealed the Council’s refusal to issue an EHC plan to Y.
46. In April 2022, the Council made checks with Y’s school. It said he had returned after the Easter holidays. It also enclosed an attendance report saying that Y’s attendance remained at 26%. It said he was working with a teaching assistant on a one-to-one basis. It expected his attendance would be full-time from now on.
47. However, in June 2022 the school contacted the Council to say that Y was no longer attending. It said that it continued to provide a teaching assistant to support Y but it could not sustain this. It asked the Council to clarify its plans for September 2022.
48. In mid-June 2022 the Council decided not to oppose Mrs X’s second appeal. So, it agreed a consent order with Mrs X, approved by the SEND Tribunal, that it would issue Y with an EHC plan. The Council told Y’s school of its decision.
49. It then wrote to Mrs X saying that it would complete a final EHC plan for Y by the end of August 2022 (in the event, it issued the EHC plan marginally later at the beginning of September 2022). The plan said Y would receive education in a mainstream school but did not name a location.
50. In October 2022 Mrs X began an appeal of the EHC plan, wanting the Council to name a specialist placement. She also wanted it to make changes to the section detailing the provision Y would receive. The Council has now agreed it will seek a specialist placement for Y for his secondary education from September 2023, although so far it has not identified a setting.
51. In November 2022 the Council received a further update from Y’s school that he was not attending and had not attended from the start of year 6. It said that it did not expect him to return, although Y remained on the school roll. It mentioned receiving a GP letter relevant to Y’s absence.
52. The letter referred to from Y’s GP said his mental health was “unstable” and that he had “ongoing significant anxiety”. As a result, Y would have “times of prolonged absence from school” and this was due to “true anxiety disorder”.
53. In November 2022 Mrs X made a further complaint at the lack of alternative provision for Y. She set out his limited education since March 2021 and his needs. In a second part to the complaint, Mrs X explained frustration at poor communications with the Council over Y’s EHC plan. In particular that several emails she had sent in September 2022 around consultation for a secondary school for Y had gone unanswered.
54. In December 2022 the Council replied to Mrs X. It apologised for any inconvenience caused to her by its failure to reply to her emails. It said that while Y remained on a school roll and “without evidence as to why he is not attending” it could not make alternative education provision for him.
55. Mrs X replied to that letter. She said that Y had authorised absences from school because he was too ill to attend. She again asked the Council to make alternative provision for Y, while his EHC plan was subject to an outstanding appeal.
56. In January 2023 the Council said it could not add to its earlier reply. It said it would not consider a complaint about any ‘interim provision’ for Y, while the EHC plan was under appeal.
57. In March 2023, despite the ECH plan still being under appeal, the Council’s IPS contacted Mrs X. It offered to consider alternative provision for Y. It said that acceptance of any tutoring it offered Y would “not impact on your appeal and the two processes can happen alongside each other”.
58. Subsequently, Y has started receiving home tuition via the IPS. It wants to provide up to three hours one-to-one tuition but has said it will keep this under review and offer more if suitable for Y, dependent on his engagement and so on.

My investigation

59. As well as gathering the information above, I asked the Council to clarify its position on its decision not to offer alternative provision to Y before March 2023.
60. It said that any consideration of alternative provision, rested on whether Y required this as he was out of school for reasons ‘otherwise’ to that of illness or exclusion. The Council says that in such cases it would look to education support services provided through local agreement between local authorities and schools. So, for example, it has a communication, learning and autism support service which provides supports to schools in its area. As Y attended a school outside the Council’s area, it was for his school to approach an equivalent service in its local authority area. Just as it would provide that service for a child from out-of-county who attended an East Sussex school. It said this approach was consistent with the law and Government guidance in the SEND Code of Practice.
61. It stressed that this did not mean that it considered any other authority had a duty to identify or meet Y’s special educational needs. Those responsibilities rested with the Council.

My findings

The Ombudsman’s jurisdiction

62. The term jurisdiction refers to our legal powers to investigate a complaint. I am unable to investigate matters that have been appealed to the SEND Tribunal. Consequently, I cannot make any finding in respect of the Council’s initial decision to refuse an education, care and health needs assessment of Y. Nor can I consider its later decision not to issue an EHC plan. Nor can I take a view on the content of Y’s EHC plan issued September 2022. All these decisions Mrs X has appealed to the SEND Tribunal.
63. Nor do I consider that I can investigate the provision made for Y from September 2022 when the Council issued an EHC plan. I note this did not specify a setting for Y’s education. I also note that it was never part of Mrs X’s appeal to seek education for Y at home. And that when the Council went on to make alternative provision for Y it said this would not impact on Mrs X’s appeal.
64. But Mrs X’s appeal requested changes to the education provision Y should receive. As such I consider this brings into the scope of those cases which the Courts have said we cannot investigate. The question of what education Y should receive after September 2022 being inextricably linked to the nature of that provision.
65. I also consider I am unable to take a view on that part of Mrs X’s complaint concerned with the Council’s communications with its assessment and planning service after September 2021. Those communications focused on issues around consultation with schools and identifying provision for Y’s secondary school. These too therefore went to the substance of the content of Y’s EHC plan.
66. I am therefore limited to investigating the Council’s response to requests that Y should receive alternative provision between July 2021 (the school’s initial contact) and August 2022.

Findings on the substance

67. I have noted the Council did not introduce its ‘Section 19’ policy until September 2022. However, none of the law or guidance referred to in that policy was new at that date. All of it was current from July 2021 when the Council first learnt of Y’s reduced attendance at school.
68. I consider the policy therefore provides a useful starting point for considering how the Council should have approached Y’s case, even if officers did not have it to work from at the time. I consider the policy provides a fair overview of the law and guidance councils must work to when alerted to a child out of school. It then provides signposting for which service within the Council should respond to the child’s need, dependent on the facts of the case.
69. Applying the policy to Y’s case I consider the Council could, in the first instance, consider what support his school sought from the neighbouring county to encourage his reintegration. I see nothing wrong in principle with the Council considering what local resources a school has available to it, and its use of those, before deciding if it should put alternative provision in place. I agree this approach is consistent with Government expectations set out in the Code.
70. However, there is a lack of contemporaneous evidence to show the Council did this. For when it was contacted first by the school and then Mrs X, the Council did not make enquiries with the school to see what support and strategies were in place. Instead, it limited itself to saying that Y would not qualify for support from its TLP team and that the school should seek support from the neighbouring county’s services. It alerted neither Mrs X nor the school to its IPS service (nor make a referral to it). Nor did it consider if Y’s case engaged its wider Section 19 duty. This was a fault.
71. That lack of engagement continued throughout the academic year 2021/22. In both December 2021 and June 2022, the Council learnt of Y’s limited and decreasing attendance at school. It knew the school had accessed support from the neighbouring county to try and integrate Y back into school. So, it also knew that support had not had the desired result. Yet at no point did it question if it should do more to ensure he received a full-time education.
72. I accept the picture looked more encouraging in April 2022 when it was told Y would return to school full-time with a teaching assistant in place. So, at that time it could have excused itself from considering any need for alternative provision. But at other times it could not.
73. This is because as the Council’s own Section 19 policy makes clear its ‘highest priority’ should be to ensure that pupils with special education needs are supported to achieve the best possible outcomes in life. What this means in practice is the Council cannot simply rely on an assertion that another authority is providing, or should provide, adequate support. Nor can it rely on the fact that some support is provided, if the evidence shows, that even with support there remains a significant shortfall in education.
74. This case highlights a gap that existed in the September 2022 version of the Council’s Section 19 policy. That policy made clear was the IPS that considered the needs of children with ECH plans who were not in a placement. But it did not make clear how the Council would consider the potential need of children with special educational needs, who did not have an ECH plan, who may potentially need alternative provision. I welcome therefore the supplementary guidance to staff in May 2023 that now makes this clear and draws specific attention to the need for vigilance in cases where children attend schools out of county.
75. Unfortunately, these changes came too late to impact what happened in this case. Because from September 2021 the Council should have been considering Y’s potential need for alternative provision. ‘Consideration’ of making alternative provision available is not the same as providing it. But on balance I am satisfied that had the Council properly applied itself to this consideration then it would have made some alternative provision for Y, at least up to April 2022, when his school gained more teaching resources. This is after noting that by September 2021 Y had suffered a twelve month deterioration in his attendance and the local level interventions attempted by the school had not reversed this trend. Similarly, I consider the Council likely to have made such provision again from June 2022, when it became clear Y’s attendance had stopped again despite his school now having a teaching assistant to support him.
76. This failure to make provision is an injustice to Mrs X and to Y. I cannot say to what extent the lack of provision may have exacerbated Y’s mental health needs. But it clearly will have been of harm to his education that he has missed so much time from school. It will also be a source of distress to Mrs X.
77. I also accept Mrs X will have had significant disruption to her work and routines as a result of Y’s absences. However, I am not persuaded this would be significantly different had the Council stepped in and made alternative provision. As at least in the first instance this is likely to have been limited in scope and required an adult be at home with him, given his inability to attend school because of his needs.
78. Finally, I have considered the Council’s administration of Mrs X’s requests for an EHC assessment and plan pre-September 2022. I do not find fault as I find the Council did keep to the timescales envisaged in the Code when it came to issuing decisions to Mrs X.

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Agreed action

79. The Council accepts the findings set out above. To remedy the injustice identified in paragraph 76 it has agreed that within 20 working days of a decision on this complaint, it will:
1. apologise to Mrs X in line with our published guidance on remedies; Guidance on remedies - Local Government and Social Care Ombudsman
2. make a symbolic payment of Mrs X of £3750 to recognise the lack of provision to Y.
80. The calculation of the sum at 79b) takes account of our guidance on remedies. This says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special education needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

81. In this case I noted:

• that the period concerned was year 5 of Y’s education;
• that he has significant special education needs which necessitate an EHC plan;
• that during the 21/22 academic year he only received about 30% of his education; and
• that additional provision cannot now remedy some or all of the loss given the passage of time and that matters have now moved on with planning for Y’s secondary education.

82. Taking account of these factors I considered a mid-range payment of £1500 per term appropriate for the autumn and spring terms and a payment of half that, £750 for the summer term. This took account that in the summer term the Council received information the school had obtained further teaching resources for Y and it anticipated him returning full-time.
83. The Council should provide us with evidence it has complied with the above actions.
84. In the light of the Council’s introduction of new guidance to officers in May 2023, on the application of its Section 19 policy, I decided we did not need to seek further service improvements from the Council. I considered the changes to policy made a repeat of the events covered by this complaint less likely to recur.

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Final decision

85. For reasons set out above I upheld this complaint finding fault by the Council causing injustice to Mrs X and Y. The Council has accepted these findings and agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman