Summary: Ms X complained the Council failed to provide suitable education for her daughter, Y, when she says Y was too unwell to attend school. She also said the Council did not allow her to home educate Y. The Council was not at fault.

The complaint

1. Ms X complained the Council:
• failed to provide suitable education to her daughter, Y, between May 2021 and July 2022 when Y was too unwell to attend school; and
• did not allow her to home educate Y.
2. Ms X says the matter caused Y to miss out on education she was entitled to and caused her distress.

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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 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)
4. 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)
5. 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.
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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than twelve months to complain to us about something a council has done. I decided to investigate beyond twelve months because Ms X raised a complaint with the Ombudsman earlier but was told to wait until court proceedings ended. Ms X returned to promptly once court proceedings had finished.
8. 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). In addition, the courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407). These restrictions apply from the date the appeal right arose to the date the appeal was completed.
9. Ms X appealed the Council’s decision not to issue an EHC plan because she said Y had special educational needs due to anxiety. This is the same reason Ms X said Y could not go to school and needed alternative provision. Ms X’s complaint that the Council failed to provide Y a suitable education is therefore inextricably linked to the matter she appealed. As such, I cannot investigate how the Council decided it would not offer Y alternative provision in the time between October 2021 (when the Council issued its decision not to make an EHC plan for Y), and April 2022 (when the SEND tribunal made its decision and ordered the Council to make an EHC plan).

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How I considered this complaint

10. I spoke with Ms X and considered information she provided.
11. I considered information provided by the Council.
12. Ms X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Law and legislation

Section 19 alternative education duty

13. 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))
14. 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])
15. The Courts have also found that when deciding if a child is out of education for ‘other’ reasons, councils should consider whether the education offered is reasonably possible or reasonably practical to be accessed by the child.
16. 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
17. We made some recommendations. This included that 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school (and therefore prosecute parents if they do not ensure attendance) or provide the child with suitable alternative education; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Elective Home Education

18. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend.

Education Health Care needs assessment

19. A child with special educational needs (SEN) 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. In order to have an EHC plan, a child must first have an assessment.
20. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
21. As part of the assessment councils must gather advice from relevant professionals (SEND Regulation 6(1)). This includes psychological advice and information from an Educational Psychologist (EP).

Child protection

22. Councils have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)
23. If, following a referral and an assessment by a social worker, a multi-agency strategy meeting decides the concerns are substantiated and the child is likely to suffer significant harm, the council convenes a Child Protection Conference.
24. The Child Protection Conference decides what action is needed to safeguard the child. This may include a recommendation that the child should be supported by a Child Protection Plan.

Background

25. The information below is not everything that happened. It is a summary of key points.

May to October 2021

26. In early 2021 Y attended school A in the Council’s area. Ms X says Y’s physical and mental health declined and she stopped attending in March 2021. Ms X says Y also experienced bullying from other students at the school.
27. In June 2021 Ms X asked the Council to assess Y for an EHC plan. The Council said school A told it in late June 2021 it was concerned Y’s attendance was low. The Council decided to review the matter through the EHC assessment process to understand Y’s needs. It says it maintained contact with school A and Ms X about Y’s education during that time.
28. The Council offers a teaching service for children with health needs called the “Home and Hospital” service. In July 2021 Ms X asked the local hospital trust to refer Y to the service. The trust held a meeting alongside school A. The trust said there was no evidence Y needed the service because of health needs. School A said it had tried to support Y to return to education but had been unsuccessful. School A agreed to a reintegration plan starting in September 2021 following further assessments. The school said Y could initially attend 30 minutes a week, have access to facilities to reduce her reported anxiety, and other adaptations to allow her to reintegrate. The health service sent the meeting minutes to the Council during the EHC needs assessment.
29. During the summer of 2021, the Council received the professional advice it sought as part of Y’s EHC assessment. The educational psychologist recommended an adapted timetable tailored to Y’s needs and other input and adaptations to support Y’s education in school. The educational psychologist did not say Y could not attend school A. School A said Y was not on the SEN register and could be supported to return to mainstream school. Mental health services said Y was anxious about returning to school, but Y had not attended organised assessment sessions, therefore there was no diagnosis.
30. In September 2021 the Council held a planning meeting as part of the EHC assessment. The minutes show Y was completing schoolwork at home successfully. Ms X said she felt Y should be assessed as having SEN because of her anxiety. School A disagreed and said Y’s needs could continue to be met at the school.
31. In response to our enquiries, the Council said there was no evidence to suggest Y needed alternative education at the time. It said there was no evidence Y was too ill to attend school and it decided school A was suitable and available to Y.

Tribunal appeal & safeguarding

32. The Council decided in October 2021 not to issue an EHC plan for Y because it felt Y did not have special educational needs. Ms X appealed the decision to the SEND tribunal.
33. In late 2021 the Council received a safeguarding referral about Y. The Council decided Y was at risk of significant harm and held an initial child protection conference in late December 2021.
34. At around this time Ms X asked to de-register Y from school so she could be home educated. She did not follow the correct process to request de-register Y, so the Council did not agree to it.
35. During the initial child protection conference Ms X told the Council Y had been out of education for several months. Ms X said she had tried to de-register Y from school, but the Council had refused to allow it. She told the conference Y had multiple health conditions that meant she could not go to school.
36. The social worker’s report for the child protection conference said Y had some anxieties around school, but that she wanted to return to school as soon as possible. The social worker said there had been multiple barriers put in place by Ms X which delayed Y's return to school.
37. The child protection conference minutes show the professionals present did not think Y had special educational needs and felt she could be educated in a mainstream school. The professionals were also concerned the health issues Ms X reported Y was experiencing did not exist. The minutes show school A explained how it had acted to make sure Y was safe from the reported bullies. Ms X disagreed with the views of professionals. The Council decided Y was at risk of emotional abuse and placed her on a child protection plan.
38. In January 2022 the Council says it received another request from Ms X to home educate Y. Ms X made the request through the correct process. The Council says it attended a meeting in mid-January 2022 to discuss the request. However, Ms X said she wanted Y to remain in school with targeted input from professionals. The Council wrote to Ms X and said in line with her wishes Y would not be de-registered.

April 2022 to July 2022

39. In April 2022 the SEND tribunal ordered the Council to make an Education, Health, and Care plan for Y. The order recorded Y had anxiety and the reason the Council should issue a plan is because it would give Y legal certainty about what education she would receive.
40. Later in April 2022 the Council held a review child protection conference. The meeting minutes show:
• the conference discussed Y’s poor school attendance;
• Ms X said Y was happy and healthy;
• Ms X told the attendees Y was not attending school because there was no suitable school to meet Y’s needs. However, the conference felt it was not clear what those needs were and noted school A had made adjustments to allow Y to return to school but did not change the outcome;
• services to support Y with her reported anxiety were made available, but Y had not engaged with them. The conference felt this was because of Ms X;
• professionals remained concerned about Y not attending school and said nothing on the child protection plan had been achieved; and
• the conference concluded the Council should seek legal advice about the safeguarding concerns. Y remained on a child protection plan.
41. The Council then decided to take court action relating to Y because of the concerns that Ms X may not be giving an accurate account of Y’s health concerns.

Events after July 2022

42. In August 2022 the Council finalised Y’s EHC plan. The plan said Y would attend mainstream school A and transfer to a different mainstream school once one was found. The plan said Y would be given daily support in school, a tailored curriculum which could be updated over time, and other general adaptations to support her return to school.

Analysis

Education May 2021 to October 2021 and alternative provision

43. The Council has a duty to arrange alternative provision if a child in its area is not receiving a suitable education due to illness or other reasons. This duty applies even when a child is on a school’s roll. Caselaw has shown that when considering if a child is out of education on “other” grounds, councils must decide whether existing provision is reasonably possible or reasonably practical to be accessed by the child.
44. The Council says school A told it in late June 2021 about concerns regarding Y’s school attendance. The Council evaluated Y’s needs through an EHC needs assessment once it was aware Y was not attending school. The Council consulted a range of professionals and considered information they provided.
45. It is for the Council to decide what weight to give medical evidence and decide whether a child is too unwell to attend school. While there is no single record of the decision, I consider it more likely than not the Council concluded, based on the information available at the time, that Y did not have either a mental or physical health need that required alternative provision to be made on the grounds of illness. There is no evidence of fault in the Council’s decision making. It considered evidence from relevant professionals when making its decision. Therefore, we cannot question the outcome.
46. Ms X told the Council one of the reasons Y was not attending school was because of bullying causing anxiety. The evidence shows the Council considered information provided by school A as part of the EHC assessment and decided it remained a suitable placement. The educational psychologist considered the impact of bullying on Y and did not say Y could not return to school A. School A told the Council it was able to meet Y’s needs and agreed to make changes to facilitate Y’s to return to school following professional advice from the educational psychologist.
47. While there is no single record of the Council’s decision that school A remained suitable and reasonably accessible, on balance I consider it more likely than not that the Council decided school A remained a suitable placement because school A told the Council it was able to meet Y’s needs and had put reintegration plans and adaptations in place to allow Y to return. Therefore, there was no fault in the Council’s decision not to provide alternative education to Y for reasons “other” than illness during this time.

Education April 2022 to July 2022 and alternative provision

48. The SEND tribunal ordered the Council to make an EHC plan for Y in April 2023. In the period following the tribunal hearing, the Council continued Y’s child protection plan. Child protection records show the Council considered the views of professionals involved with Y and continued to conclude the evidence showed there was no good reason Y could not attend school A. It therefore named school A in the EHC plan in August 2022 and took court action because of its concerns that Ms X was preventing Y from accessing an education available to her. The Council considered relevant information in coming to its decision that it did not owe Y the alternative provision duty. There was no fault in that decision-making, so we cannot question it.

Home education

49. Ms X says she requested to home educate Y in late 2021. The Council said Ms X had not applied through the correct process. Ms X applied through the correct process in January 2022, but then decided she wanted Y to remain at school. There was no evidence of fault in how the Council processed Ms X’s request for Y to be home educated.

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Final decision

50. I completed my investigation. I found no evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman