Summary: Mrs X complained the Council failed to arrange suitable alternative education for her son, Y, when he could no longer attend school. There was fault in how the Council failed to consider Mrs X’s request for alternative education for Y, failed to respond to her complaints and how it wrote to Y’s GP. This caused Y to miss some education, costs for Mrs X and significant distress, time and trouble to Mrs X and Y. The Council agreed to apologise, pay a financial remedy and review how it manages alternative educational provision and special educational needs complaints.

The complaint

1. Mrs X complains the Council failed to arrange suitable alternative education for her son, Y, when he was no longer able to attend school in January 2023. She says that, despite twice asking the Council to arrange alternative education, the Council ignored her requests and told her it Y’s school was responsible for arranging education for him. She also says the Council failed to respond to her complaints about this in line with its published complaints procedure.
2. As a result, Mrs X says:
• Y went without any education for around a month;
• she had to pay for alternative education after this herself; and
• both she and Y have been caused significant avoidable frustration, uncertainty and distress.
3. Mrs X wants the Council to:
• arrange suitable, alternative education for Y;
• pay for the costs of the education she arranged herself;
• explain what went wrong and why; and
• make changes so that similar things do not happen in the future.

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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, if there is a conflict of evidence, 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)

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How I considered this complaint

8. I considered:
• the information Mrs X provided about her complaint;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
10. 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 found

Education Health and Care plans

11. 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.
12. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
13. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Alternative education provision

14. 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. We refer to this as section 19 or alternative education provision.
15. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, 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 council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
18. 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))
19. The education provided by the council must be full-time unless the council determines 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 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’)
21. 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])
22. 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
23. 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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.

Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure your duties and properly fulfilled.

Council’s complaints procedure

24. The Council has a three stage complaints procedure:
• Stage one – a response from the head of the relevant Council service within 20 working days.
• Stage two – a response from a director within 20 working days.
• Stage three – a final review by the Chief Executive’s office within 20 working days.

What happened

25. Mrs X’s son, Y, has special educational needs related to anxiety, sensory regulation and his ability to communicate his thoughts and feelings. Y first had an EHC plan issued by the Council in February 2019. The Council amended this in February 2020 ahead of Y’s move to secondary education. This amended plan said Y would attend a mainstream secondary school from September 2020.
26. After starting secondary school, Mrs X says Y’s difficulties got progressively worse until January 2023 when Y’s GP said that, due to his increased anxiety and experiencing burnout, Y should not attend school until the Council completed the review of his EHC plan, and the support he should have at school, it had recently started.
27. Mrs X wrote to the Council in late January 2023 asking it to arrange suitable alternative education for Y as he was unable to attend school. She included a copy of the letter from Y’s GP and suggested that online lessons would be most suitable for Y. The Council acknowledged Mrs X’s request the same day but also told her that it was the school’s responsibility to arrange education for Y.
28. A few weeks later, in early February 2023 Mrs X complained to the Council that it had not replied to her request and that Y was not receiving a suitable education. She told the Council she thought Y would be able to access full-time education, but needed this to be in a form which did not make his anxiety worse.
29. Later in February 2023 Mrs X privately arranged for Y to attend an online school. This appears to be equivalent to full time education and covers a broad range of subjects. Mrs X says Y has thrived in the online school, but she cannot afford to continue funding this herself.
30. The Council acknowledged Mrs Y’s complaint the same day but did not respond to this further.
31. Mrs X asked the Council to escalate her complaint to the second stage of its complaints procedure in late March 2023, because it had not responded to her stage one complaint. She also provided further evidence from Y’s GP to say that Y was doing well with online lessons but was still too anxious to attend school and would likely remain so for some time. Again, the Council did not respond to Mrs X’s complaint.
32. Around a month later, in late May 2023, Mrs X complained further to the Council that it had not responded to her complaints. She asked it to escalate her complaint to the third stage of its complaints process.
33. Following our initial enquiries, the Council responded to Mrs X in late May 2023. It declined to consider her complaint at stage three, because it had not yet sent Mrs X a stage two response.
34. The Council wrote to Mrs X in mid-June 2023 saying that because she had instructed solicitors to represent her about other matters (about the Council’s reassessment of Y’s special educational needs) it would not respond further until the legal matter had been resolved.
35. Shortly before this, the Council wrote to Y’s GP about their January 2023 letter. Mrs X says the Council’s letter to Y’s GP misrepresented the Council’s responsibilities, was inappropriate and seemingly intended to dissuade Y’s GP from providing similar evidence in future.

My findings

Alternative education provision for Y

36. The Council accepted it became aware Y was not attending school when Mrs X told it about this in January 2023. The Council says it sought clarification from Y’s GP at the time and believed that Y’s absence from school would be “short term”.
37. However, the Council was unable to provide any evidence that it sought further information from Y’s GP at the time or of the other information it sought from other professionals involved in Y’s education to allow it to make an informed decision. There is also no evidence the Council considered how long it expected the review of Y’s EHC plan would take and therefore whether Y would likely be unable to attend school for 15 days or more, taking into account the time Y had already been out of school.
38. The Council has provided no evidence of how it considered whether Y could attend his existing school place, how long he might be out of school, whether it needed to arrange alternative education or what form this should take to meet his needs. On the balance of probabilities, I am satisfied the Council did not properly consider Mrs X’s request at the time. That was fault.
39. In April 2023 the Council says it checked with Y’s school whether it was still sending him work home to complete. The school replied that it was, but that Y was “contributing very little and not returning much”. It also had the further letter from Y’s GP saying that he was still unable to attend school and this would likely be the case for the “medium to long term”. Although Y had been signed off school for several months at this point, the Council failed to review the situation or decide whether it needed to arrange alternative educational provision for Y. It also failed to review the situation after it decided to complete a reassessment of Y’s needs, knowing that this could take several months. This was also fault.
40. The Council has failed to explain why it considered Y would only be unable to attend school for a short time, yet in its June 2023 letter to Y’s GP it explained a review could take much longer than this and that it understood the GP had signed Y off school for an open-ended period.
41. There was clear evidence from Y’s GP that he was unable to attend school due to his mental health conditions and this was available to the Council at the time. On the balance of probabilities, I am satisfied the Council’s failures to consider Mrs Y’s request for alternative education and its duties under section 19 of the Education Act meant that:
• Y missed out on suitable education between late January 2023, when his GP signed him off school, and late February 2023, when he started attending the online school arranged by Mrs X; and
• Mrs X felt she needed to arrange and pay for the online education she did from late February 2023.
42. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. Y’s attendance and engagement with the online schools show that he was able to take part in full-time education so I consider a remedy of £300 is a suitable remedy for the month of education Y missed out one between January and February 2023.
43. Because Mrs X arranged for Y to attend an online school after late February 2023 I do not consider Y missed out on any further education and the personal impact on him was limited by Mrs X’s actions. However, Mrs X arranged and paid for online schooling because the Council did not respond to her requests. Therefore, the Council should repay Mrs X for the online schooling costs she incurred since February 2023.

Complaint handling

44. The Council failed to respond to any of Mrs X’s complaints apart from simple acknowledgement.
45. Even after the Ombudsman became involved, the Council declined to respond to Mrs X’s complaint because she had involved a solicitor about other issues. The Council failed to properly consider which parts of Mrs X’s complaint were separate from the legal action Mrs X was considering.
46. Therefore, I am satisfied there was fault in how the Council failed to consider or respond to Mrs X’s complaints for over 6 months. That caused Mrs X significant avoidable frustration, time and trouble.

The Council’s letter to Y’s GP

47. The Council said it had intended to write to Y’s GP in early 2023 after it received the first medical evidence. However, it did not send this letter until June because, according to the Council, of staff changes in its SEND team. The Council sent this letter both to Y’s GP and Mrs X.
48. The Council said it sent the letter to Y’s GP to seek more information and clarity about Y’s health conditions. However, in my view, the letter went significantly beyond that issue with a significant portion of the letter being used to explain what the Council viewed as the potential consequences of Y’s GP providing the kind of evidence they had already provided.
49. In its letter the Council:
• asked Y’s GP how they had come by their knowledge about EHC plans with, in my view, the implication that Mrs X had coached the GP;
• in my view, misrepresented guidance from the Department for Education about supporting children unable to attend school due to mental health difficulties by implying it was required to check whether the sick note was sought by Mrs X;
• stated it did not consider any changes to Y’s EHC plan could assist with Y;’s burnout, while at the same time asking for more information about this;
• implied the letter provided by Y’s GP might be subject to “intense scrutiny before the court[s]” if the Council were to take enforcement proceedings for non-attendance, despite the fact that the Council has no evidence of considering such action in Y’s case; and
• suggested that Y’s GP might be required to appear in court if legal action was taken.
50. Seeking clarification of the GP’s advice was appropriate and should have happened much earlier than June 2023. However, in my view the letter contained undue emphasis on:
• legal proceedings the Council has no record of considering;
• the potential implications this would have for the GP personally; and
• implications of inappropriate conduct by Mrs X.
51. I am satisfied the tone and content of the Council’s letter could reasonably have been read as discouraging medical professionals from providing the kind of letters which Y’s GP had provided. I am also satisfied Mrs X found the letter, particularly the implications of inappropriate conduct by her, significantly distressing. This added to Mrs X’s already significant distress for feeling like she was being ignored by the Council.

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Agreed action

52. Within one month of my final decision the Council will:
• apologise to Mrs X for the impact of failing to properly consider her requests for alternative educational provision for Y, failing to respond to her complaints about this and the content of the letter it sent to Y’s GP;
• reimburse Mrs X the costs she paid for the online schooling she arranged for Y, based on invoices provided by Mrs X;
• pay Mrs X £300, intended for Y’s future educational benefit, to recognise the education Y missed between January and February 2023;
• pay Mrs X £750 to recognise the financial pressure, distress, time and trouble caused by the failures above; and
• pay Mrs X £150 to fund a suitable gift for Y to recognise the extra stress and uncertainty he experienced.
53. Within three months of my final decision the Council will:
• review its policies and procedures for making decisions about alternative educational provision under section 19 of the Education Act. It should ensure its procedures follow the appropriate law and statutory guidance, that it seeks relevant information on which to base its decisions and that it has a suitable process for monitoring the quality of decisions made under these duties;
• arrange appropriate training for education and SEN staff on the Council’s updated policy and procedures. This training should include the Ombudsman’s Out of Sight focus report and the findings of this investigation; and
• review its arrangements for managing complaints about its SEND service. This should include a plan for how the Council will ensure the service is appropriately staffed to allow the Council to respond to complaints in line with its published complaint’s procedure.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation. There was fault in how the Council failed to consider Mrs X’s request for alternative education for Y, failed to respond to her complaints and how it wrote to Y’s GP. This caused Y to miss some education, costs for Mrs X and significant distress, time and trouble to Mrs X and Y. The Council agreed to apologise, pay a financial remedy and review how it manages alternative educational provision and special educational needs complaints.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman