Summary: Dr B complained the Council failed to secure alternative provision for her son who has been unable to access full time mainstream education. We find some fault in how the Council considered Dr B’s request for alternative provision for her son. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Dr B complained the Council failed to secure alternative provision for her son, C, who has been unable to access full time mainstream education.
2. Dr B says the process has been stressful and C has not received the support he needs.

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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. 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.
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.
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)

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What I have and have not investigated

7. The courts have said where the period out of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard is outside the Ombudsman’s jurisdiction. Dr B exercised her right to appeal to the SEND Tribunal about the content of C’s EHC plan. Therefore, I have not investigated what educational support the Council provided to C after April 2023 as this cannot be separated from the matters Dr B raised in her appeal.

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How I considered this complaint

8. I considered information from Dr B. I made written enquiries of the Council and considered information it sent in response.
9. Dr B 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

Alternative provision

10. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
11. Statutory guidance issued by the government called “Alternative Provision” says while there is no legal requirement as to when full-time education should begin for children placed in alternative provision for reasons other than exclusion, local authorities should ensure children are placed as quickly as possible.
12. 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)
13. 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 medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Education, Health and Care needs assessment

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. An EHC plan describes the child’s special educational needs and the provision required to meet them.
15. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. Councils may decide to issue a child or young person with an EHC plan after completing the assessment.

What happened

16. This chronology provides an overview of key events and does not detail everything that happened.
17. Dr B’s son, C, has special educational needs.
18. C’s attendance at school started to decline from September 2022.
19. Dr B asked the school to implement a flexi-schooling arrangement in October.
20. The school agreed to the flexi-school arrangement for C in November. This included attending school four days a week and therapeutic support on the other day. Dr B paid for the therapeutic support.
21. Dr B applied to the Council for an EHC needs assessment for C the same month. She set out C’s difficulties attending school. The Council agreed to assess C the following month.
22. Dr B complained to the Council in December. She said C was struggling to attend school and his attendance was 69%. She said his complex health needs were affecting his legal right to a fulltime education.
23. The school contacted the Council by telephone at the end of January 2023 to seek advice about C’s attendance. The Council told the school to adopt a phased reintegration plan including reduced hours if appropriate. It said it could not take legal action against Dr B to enforce C’s attendance at school as the absences were authorised.
24. The Council responded to Dr B’s complaint. It told her to contact its medical panel if C’s complex needs were preventing him from accessing education.
25. Dr B referred her complaint to stage two. She said the Council had a legal duty to provide C with full time education. She said his attendance was now around 50% because of his anxiety.
26. C stopped attending school completely at the beginning of February. Dr B emailed the Council the following week and provided it with medical evidence. She said it was proof C needed alternative provision.
27. The Council had a meeting with Dr B later that month to discuss her request for alternative provision. Dr B summarised the meeting in a follow up email. The officer from the Council stated it was the school’s view C could attend. The officer suggested input from the early help team to work with C to help his engagement back into school.
28. The Council agreed to issue EHC plan for C. It issued the draft plan at the beginning of March.
29. The Council responded to Dr B’s complaint at stage two. It said it identified different options that could support C’s re-integration into full time education. This included help from the early help team and input from a specialist lead educational psychologist. It said it was important to utilise all the resources available to maintain C’s placement at his local mainstream school.
30. Dr B emailed the Council in mid-March and said she had removed C from school, and she would electively home educate him. Dr B then became responsible for C’s education.
31. The officer from the early help team contacted Dr B the following week to discuss the support that was on offer. Dr B said she would consider if she needed any support. She spoke to the officer at the end of March and said she did not need any further support.
32. The Council issued C’s final EHC plan on 6 April. It noted Dr B had chosen to electively home educate C, but it said it would be seeking a specialist setting.
33. Dr B appealed to the SEND Tribunal about the setting and the provision in C’s EHC plan.

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Analysis

34. Councils have a duty to provide suitable education 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. I asked the Council to explain how it adhered to the duty in this case. It said it provided an appropriate education to meet C’s needs through a flexi-schooling offer and a therapeutic session. It says the school put in place reasonable adjustments to meet C’s needs and he did not have a medical treatment plan.
35. The Council was aware C was having difficulties attending school from Dr B’s correspondence in November and December 2022. She explained the adjustments the school had implemented were not working. It therefore should have reviewed the adjustments and conducted its own assessments to decide whether C could reasonably access what was on offer. There is no evidence the Council conducted any of its own detailed investigations. It told the school to offer C a reduced timetable without a full consideration of his circumstances. This is fault.
36. Dr B also provided medical evidence in February 2023. She told the Council this was proof C needed alternative provision. There is no evidence the Council reviewed this information and came to a view on whether it was sufficient to provide C with alternative provision or not.
37. We cannot say what the outcome would have been if the Council had acted without fault and whether it would have decided alternative provision was appropriate for C before Dr B removed him from school. It may have decided the school could meet C’s needs with specific intervention. However, the fault provides Dr B with some uncertainty and frustration. The Council should take action to remedy this injustice.

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Agreed action

38. To address the injustice caused by fault, by 29 September 2023 the Council has agreed to:

• Apologise to Dr B for her uncertainty and frustration.
• Pay Dr B £250.

39. By 27 October 2023 the Council will issue written reminders to relevant staff to ensure they are aware they have a duty to fully consider individual circumstances in deciding whether there is a statutory duty to provide alternative provision for children out of school due to illness, exclusion or otherwise.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. There was fault by the Council, which caused Dr B an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman