Summary: Mrs X complained the Council failed to arrange alternative provision when her daughter stopped attending school due to anxiety. We find the Council at fault for failing to consider its legal duties and its policy. The Council will apologise, make payments to recognise the injustice caused and take action to prevent reoccurrence.

The complaint

1. Mrs X complained the Council failed to arrange alternative provision when her daughter, C, stopped attending school due to school anxiety.
2. She says her daughter has missed education and her and her family have been caused distress and financial loss.

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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. 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. 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

6. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mrs X and the organisation 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

Law and guidance

8. 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 generally should 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.
9. 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’)
10. 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)
11. A child placed on a part-time timetable must have a time limit by which point the pupil is expected to attend full-time or be provided with alternative provision.
12. Local authorities are expected to obtain data from all schools, regardless of governance, up-to-date and accurate data on all children not accessing full-time education.
13. 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
14. We made six recommendations. 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;
15. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, they should retain oversight and control to ensure their duties are properly fulfilled.
16. 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.

Council’s policy

17. The Council’s emotional wellbeing and behaviour policy states full-time education for children in early years is 15 to 30 hours and school children 20 to 25 hours. Where appropriate a temporarily reduced timetable should be used in the short term. This must be by agreement of the parents, regularly reviewed and have evidence of the benefit to the child. It states a reduced timetable should never be used long-term.
18. The Council provides a tiered approach for intervention. At tier one the school provides support for emotional wellbeing. At tier two, a child’s emotional wellbeing is affecting their ability to engage in learning or the school environment, and the school can access enhanced advice and guidance from other schools. At tier three schools can access targeted support from specialist providers and outreach. Tier four allows access to provision away from school for children at risk of permanent exclusion. Tier five provides suitable alternative provision for children who have been permanently excluded.
19. The Council’s Special Educational Needs Co-Ordinator guidance for part time timetables states says when considering a part-time timetable consultation must occur. This should be with the relevant agencies to determine the education support that would best meet the child’s needs. It should create a six-week reintegration plan. Having consulted with the Special Educational Needs and Disability team to ensure the EHC plan is fully implemented under the reduced timetable. It should keep a record of reviews and should ensure it provides sufficient and differentiated work for when the child is not in school if the child is medically fit to complete work at home and in school.

What happened

20. C has autism, attention deficit hyperactive disorder and anxiety. She has an Education, Health and Care (EHC) plan.
21. In April 2021 C was attending a mainstream primary school, Following a review the Council issued a new EHC plan. The plan noted she had stopped attending school due to anxiety. The plan included support with reading, spelling, writing, touch typing, multisensory intervention, maths, processing and working memory.
22. In September 2021 she began a transition programme at a new specialist school. The plan intended for C to join a class within the school, but this did not happen due to C’s anxiety. C began working with a member of staff and Mrs X outside the classroom. These lessons were for 30 minutes and covered activities such as cooking, science and role play. As the sessions progressed C was unable to separate from Mrs X.
23. C’s attendance dropped over the autumn term and the 30-minute lesson activities began to be self-chosen activities by C.
24. The Council held a meeting in January 2022 to discuss C. Mrs X asked the school to increase the time C was spending in school to one hour a day. The school stated it did not have the staff to provide one hour of one-to-one tuition. It said the part-time timetable should remain at 30 minutes a day with a focus on time away from Mrs X. It suggested the EHC review should be held early to ensure one-to one-provision. The Council stated this would not go ahead until March.
25. In February 2022 C stopped attending school due to her school refusal and anxiety levels.
26. During the review of the EHC plan the school raised concerns about C’s abilities and the suitability of the placement. Mrs X also made a request for a budget to provide C with online subscription learning.
27. The Council says its attendance team offered the school an early intervention meeting due to C’s attendance in early March 2022. It says the school declined this on the basis it was authorising C’s absences.
28. In mid-March 2022 the school requested alternative provision from the Council. The Council reviewed the application and in May concluded it could not offer alternative provision because the evidence submitted did not indicate that she couldn’t attend school.
29. The Council says the school made several offers of provision whilst C was not attending school. This included offering a remote meeting, offering an after-school visit, and providing log in details for access to online learning. It also says work was sent home, though no date has been given for this or evidence.
30. An educational psychologist assessment was undertaken in late May 2022. This was shared with Mrs X in early July and with the Council in early August. Following this the Council issued a new EHC plan and considered C for alternative settings. In May 2023 it named an independent setting in C’s EHC plan.

Findings

31. C stopped attending school in February 2022. It’s clear the Council was aware of this from early March as it says it discussed C’s attendance at an attendance meeting. As C could not attend school and the school was confirming it was authorised the Council had a duty under section 19. Therefore, it should have taken steps to satisfy itself that any provision being given by the school was suitable and provided the support outlined in C’s EHC plan.
32. The Council accepts it did not carry out any investigations into whether the school was providing suitable alternative provision. This is despite Mrs X and the school seeking alternative provision in March. This should have highlighted concerns for the Council around the school provided provision. This is fault.
33. The Council guidance requires it help individuals struggling with their wellbeing. There is no evidence the Council considered C’s absence under its policy and what tier she would fall under. At tier two when an individual is struggling to engage in the school environment the Council should be offering the school access to enhanced advice and guidance from other schools. At tier three the Council is required to offer access to targeted support from specialist providers. It was clear C was struggling to engage in the school environment from reports from the school from February onwards, but these actions were not considered. Its failure to offer intervention assistance when C was struggling with her wellbeing in line with its guidance is fault.
34. Had the Council considered its policy and provided the support outlined C may have received additional support which would have helped her back into school. The Council’s failure to consider its duties has left Mrs X believing that things could have happened differently. This is an injustice to both C and Mrs X.
35. I cannot fairly conclude that C missed out on alternative provision between February and June 2022. The Council reviewed the medical evidence available during this time. It concluded there wasn’t sufficient evidence to show C’s anxiety prevented her from attending school. I am aware that Mrs X disagrees but there are not sufficient grounds for the Ombudsman to question the merits of this decision. There is no evidence of administrative fault as the Council considered the information available.
36. However, in July 2022 the education psychologist recorded that C suffered from high levels of anxiety that was preventing her from attending school. The Council considered this as part of the EHC review but did not consider its alternative provision duties following this new information. This is despite C still being absent from school. Had it considered its duties it is highly likely the Council would have concluded that C was entitled to alternative provision. C has therefore missed receiving alternative provision following the educational psychologist’s report.
37. In summary, the Council should have considered its wellbeing policy and its alternative provision duties when it was informed C had stopped attending school in March 2022. Particularly given C was on a reintegration programme and had an EHC plan in place. The lack of oversight from the Council is fault. The Council’s actions show it accepted that C’s anxiety was preventing her from attending school in July. Had the Council maintained its oversight C would not have been left without education from this point until a new school placement was arranged. This injustice warrants remedy.

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Agreed action

38. Within one month the Council will:
• Apologise to Mrs X for the for failing to consider its policies and legal duties when it was informed C had stopped attending school and the distress, uncertainty and anxiety this caused.
• Pay Mrs X £200 for the uncertainty caused between February and July.
• Pay Mrs X, on behalf of C, £3,400 for the lost provision identified above.
• Remind staff of the duties to check any school provided provision is suitable when a child cannot attend for medical reasons or otherwise. And that it is the Council’s duty to provide provision when the school’s is deemed unsuitable.
• Remind staff of its wellbeing policy.
• Remind staff of the importance of sharing information between departments. Such as sharing decisions between the attendance team and the education support for medical absence team.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. I have found fault leading to injustice. I have recommended a remedy to address the injustice caused and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman