Summary: Miss X complains the Council failed to provide her son, Y, with Alternative Provision when he was unable to attend school. Miss X also complains the Council delayed in deciding whether Y should have an Education, Health and Care needs assessment. There is fault with the Council for failing to meet its duty to provide Alternative Provision to Y. The Council has agreed to remedy the injustice to Miss X and to Y. The Council has also agreed to provide training to council officers.

The complaint

1. The complainant, who I shall refer to as Miss X, complains the Council delayed in deciding whether her son, Y, should have an Education, Health and Care (EHC) needs assessment. Miss X also complains the Council failed to arrange Alternative Provision for Y when he was unable to attend school.

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What I have and have not investigated

2. I am unable to investigate the Council’s refusal to issue an EHC Plan because Miss X has exercised her right to appeal to the SEND Tribunal.

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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. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
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. I considered Miss X’s complaint and the information she provided.
9. I considered the information I received from the Council in response to my enquiries.
10. Mrs X and the Council were given the opportunity to comment on a draft of this decision. I considered the comments I received from Mrs X and the Council before making this final decision.

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What I found

Law and Guidance

Alternative Education

11. Councils have a duty to 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 provision (Education Act 1996, section 19). This duty applies whether or not the child is on the roll of a school and whatever type of school they attend.
12. The Department for Education produced statutory guidance for local authorities entitled “Alternative Provision”. This says while there is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion, councils should ensure such pupils are placed as quickly as possible.
13. The guidance says councils should:
• Provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
• Address the needs of individual children in arranging provision and not to withhold or reduce provision because of how much it will cost. Meeting the child’s needs and providing a good education must be the determining factors.
• While ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality, and amount of education as they would receive in a maintained school.
• If a child receives one to one provision, the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated.
14. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who, because of illness, would not receive education.
15. The guidance states that “In order to better understand the needs of the child, and therefore choose the most appropriate provision, LAs should work closely with medical professionals and the child’s family and consider the medical evidence.”
16. If medical evidence is not quickly available, the guidance states councils “should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
17. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend….there will be a wide range of circumstances where a child had a health need but will receive suitable education that meets their needs without the intervention of the local authority”.
18. Good alternative provision is that which appropriately meets the needs of pupils and:
• enables them to achieve good educational attainment on par with their mainstream peers particularly in English, Maths, and Science (including Information Technology).
• meets specific personal, social and academic needs, including being suited to the pupil’s capabilities; give pupils the opportunity to take appropriate qualifications; involve suitably qualified staff who can help pupils make excellent progress.
• have clearly defined objectives including the next steps such as reintegration into mainstream education.
19. The Ombudsman published a focus report ‘Out of school, out of mind’. This focuses on the responsibilities of councils to provide education when, for one reason or another, a child is not fully attending school. It says in situations where parents or carers keep their child out of school, for example, because they believe it cannot provide effective education for the child, then a council has a duty to provide alternative education if it cannot reintegrate the child or decides not to pursue legal action for non-attendance.

Education, Health and Care (EHC) Plan

20. 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 Council is responsible for making sure that arrangements specified in the EHC Plan are put in place and reviewed each year.
21. 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. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
22. An EHC needs assessment is an assessment of the education, health and social needs of a child or young person. The timescale for an EHC needs assessment is a maximum of 20 weeks.
23. If an EHC needs assessment is requested, councils must issue the parents with a decision notice within six weeks of receiving the request. If the council decides an assessment is not necessary or it decides not to issue an EHC plan after an assessment, it must provide reasons for this to the parent or young person and notify them of their right to appeal that decision to the SEND Tribunal.

What happened

24. What follows is a brief chronology of matters related to the issues complained about. It does not contain all the information I reviewed during my investigation.
25. Y is a secondary school pupil and due to start Year 9 in September 2023. He has a diagnosis of Autism Spectrum Condition (ASC) and suffers from anxiety. Y was attending a mainstream secondary school, School 1, however his attendance was sporadic since he started in Year 7 at the school.
26. On 1 March 2022, Miss X requested an EHC needs assessment for Y. The request was considered by the Council on 7 April 2022 where it decided not to assess Y. Miss X requested mediation which took place on 29 June 2022. During this meeting, it was agreed, on receipt of additional evidence, that an EHC needs assessment would be carried out for Y.
27. The Council began the assessment in September 2022. It says the delay was due to unavoidable staff changes and a lack of appropriate communication from the previous senior SEN officer. The Council notified Miss X of its decision to assess Y in October 2022. It acknowledged it should have notified Miss X by 10 August 2022 and it apologised for the delay.
28. Since 28 October 2022, Y has not attended school due to his anxiety. Miss X wrote to the Council on 9 November 2022 to advise the Council of this and to complain about delays in the EHC Plan process.
29. The Council responded to Miss X’s complaint on 13 December 2022. The Council acknowledged the delay advising her of the decision to assess Y but stated the assessment process was completed within the 20 weeks statutory deadline.
30. In relation to alternative provision for Y whilst he was unable to attend school, the Council said that until such a time that the local authority agrees an EHC Plan for Y, it would have no involvement with his current education or support. It went on to say that any decisions regarding Y’s education or provision would have to be agreed between Miss X, School 1 and medical professionals working with Y and the Council ‘would not have any jurisdiction regarding this as [Y] does not currently have an EHC Plan’. Miss X was advised to contact Y’s GP to ascertain whether he was fit enough to attend school.
31. On 19 December 2022, the Council advised Miss X of its decision not to issue an EHC Plan for Y. The Council was of the view that Y’s needs can be met within a mainstream secondary school with enhanced support to enable his reintegration back into an educational setting. Miss X appealed this decision to the SEND Tribunal where the hearing has been scheduled for December 2023.
32. Miss X escalated her complaint because she was of the view the Council had disregarded reports from professionals when assessing Y’s needs and she also complained about its ongoing failure to secure alternative provision for him.
33. On 5 January 2023, School 1 notified the Council that Y had left the school with no onward education destination. The Council contacted Miss X about this notification it had received. Miss X said that her intention was not to home educate Y but to enrol him in a secondary school that would be able to meet his needs and keep him safe.
34. The Council sent its final response to Miss X’s complaint in February 2023. It said it had considered all the information it had as part of Y’s EHC needs assessment, Miss X had executed her right of appeal and the matter would be considered by the SEND Tribunal. In relation to alternative provision, the Council said that as Y does not have an EHC Plan, it is not responsible for securing alternative provision for him.
35. On 29 March 2023, Y’s GP issued a certificate stating he was unwell to attend school, due to ASC and depression, for three months.
36. In April 2023, Y secured a place at School 2. The Council has had several meetings with School 2, Miss X and medical professionals with regards to supporting Y back into education. The Council’s efforts included a referral to a hospital school however Y did not meet the criteria and the referral was not accepted. I understand this work is still ongoing to identify suitable and accessible provision/timetable for Y.

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Analysis

Alternative education

37. When a child cannot go to school because of ill health the Council should ensure the child is receiving a suitable education. It should do this once it is clear the child will be away from school for 15 days.
38. The evidence shows the Council first became aware in March 2022 that Y’s attendance at School 1 was an issue. On 9 November 2022 Miss X advised the Council that Y was not attending due to his mental health and that it was the ninth consecutive day he had not attended school. On 5 January 2023, after a phone call with Miss X regarding Y’s attendance, the Council registered Y as a Child Missing Education (CME).
39. The Council said in its initial complaint response to Miss X that it would not be involved in Y’s education unless it agreed an EHC Plan for him. It said it was for Y’s school, parents and medical professionals supporting him to agree what package of support would be required for him. I find this statement demonstrates the Council has completely disregarded its Section 19 duty.
40. The Council is entitled to delegate its education duties to schools, but it remains responsible for ensuring its duties are properly discharged and children within its area receive the education they are entitled to.
41. In this case, the Council was aware Y had been without education for 15 days and it therefore had a Section 19 duty to consider whether Alternative Provision should be provided to him, or whether it should take legal action to prosecute Miss X.
42. The evidence shows schools, the Council and Miss X had discussions and meetings throughout Y’s absence from school. However, at no stage was any provision arranged by the Council which Y could engage with. Nor is there any evidence Miss X wrongly kept Y out of school and the Council took any steps to address this. This is fault.
43. Y has not received any education from 28 October 2022. The impact of this fault has caused significant injustice. It has affected Y’s ability to make progress as he has been without education for a long period of time. He has missed out on learning opportunities and access to the curriculum.
44. There has been distress and uncertainty for Miss X, placing strain on her as she is unable to work as she tried to manage the situation. Also, she has had to go to avoidable time and trouble to get the matter resolved.

EHC needs assessment

45. Miss X made her request for an EHC needs assessment for Y on 1 March 2022. The Council initially declined to assess Y however, on 29 June 2022, based on evidence presented to the Council at mediation, it agreed to assess Y. The Council notified Miss X of this decision on 28 October 2022 when it should have notified her by 10 August 2022. This is fault but I do not consider it caused any injustice to Miss X or to Y because the Council went on to complete the EHC needs assessment and issue its decision within the 20 weeks’ timescale.

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Agreed action

46. To remedy the injustice caused by the fault, the Council has agreed, that within four weeks of this final decision, it will:
• Apologise to Miss X in writing for the delay and failure to provide alternative provision;
• Pay Mrs X £3750 on behalf of Y to recognise that he did not receive suitable alternative educational provision since 28 October 2022. This figure comprises a payment of £750 for the Autumn 2022 term, £1500 for the Spring 2023 term and £1500 for the Summer 2023 term;
• Pay Mrs X £500 for the uncertainty and avoidable distress caused by the Council’s failure to provide alternative education to Y; and
• Secure suitable educational provision for Y as a priority.
47. The Council has also agreed, that within three months of this final decision, it will arrange training to ensure officers are aware of the Council’s duties under section 19 of the Education Act 1996 to provide provision or suitable education for children of compulsory age who cannot attend school because of exclusion, medical reasons or otherwise.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

There is fault by the Council in failing to arrange alternative provision for Y. This caused significant injustice to Y as he has not had any education for a considerable period. The Council has agreed to our recommendations to remedy the injustice to Miss X and to Y. I have now completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman