Summary: There was delay in putting alternative education in place when a child was unable to attend school due to anxiety and when the Council had ‘off-rolled’ the child from their school. The Council will apologise, make a symbolic payment and carry out service improvements.

The complaint

1. Ms X complains about delay by the Council in providing alternative education and special educational provision as set out in an Education, Health and Care (EHC) Plan:
• In May/June 2023 when her child was unable to attend school due to ‘high anxiety’, and
• following a decision to ‘off-roll’ her child pending finalising an Education, Health and Care (EHC) Plan and finding a special school place.
2. Ms X also complains the alternative education ended before her child was reintegrated into their special school. Ms X says there was a period between the special school being named in the final Plan and transport provision starting when her child’s attendance was restricted. Ms X considers alternative education should have continued alongside transition visits to the new school.

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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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended).
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. When considering complaints, 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.
8. 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

9. I have considered information provided by Ms X and the Council including:
• Special educational needs (SEN) and alternative provision documents
• Transport documents
• Complaint documents.
10. I have considered relevant law and statutory guidance including:   
• The Children Act 1989
• The Children and Families Act 2014 (‘The Act’) and associated Regulations and Code of Practice (‘The Code’)
• The Education (Pupil Registration) (England) Regulations 2006
• Statutory Guidance ‘Alternative Provision’
• Statutory Guidance ‘Mental health issues affecting a pupil’s attendance – guidance for schools’
• Statutory Guidance ‘Working together to improve school attendance’ and supplementary guidance ‘Summary of Responsibilities where a mental health issue is affecting attendance’.
• Statutory Guidance ‘Arranging education for children who cannot attend school because of health needs’.
11. I have considered the Ombudsman’s Guidance on Remedies.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

Relevant law and guidance

14. 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.
15. 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)
16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ 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’. It says there is no absolute legal deadline by which councils must arrange s.19 education for children with additional health needs, but councils should arrange it once it is clear that a child will be away from school for fifteen days or more because of their health needs. The Guidance says when a council arranges s.19 education this should begin as soon as possible and at the latest by the sixth day of absence. Where an absence is planned, for example a planned hospital admission, councils should plan for provision to be available from day one.
17. For children without health needs but who ‘otherwise’ require alternative provision statutory guidance ‘Alternative Provision’ says while there is no statutory requirement as to when suitable fulltime provision should begin, councils should ensure children are placed ‘as quickly as possible’.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
19. The law does not define full-time education but statutory guidance says alternative provision should be high quality and equivalent to education a child would receive in school. If they receive one-to-one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
20. Non-statutory guidance ‘School Attendance: guidance for schools’, August 2020) states in very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical or mental health condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package.
21. Guidance ‘Alternative Provision’ says all pupils in alternative provision must receive full-time provision in total ‘unless a pupil’s medical condition makes full-time provision inappropriate’, when the statutory guidance for children with health needs will apply. A personalised intervention plan should be prepared by commissioners with clear objectives for improvement and attainment, timeframes, arrangements for assessment and monitoring progress, and a baseline of the current position against which to measure progress.
22. The guidance for children with health needs says where specific medical evidence is not readily available (for example from a consultant) a Council should liaise with other medical professionals and consider other evidence to ensure alternative provision can be arranged as soon as possible.
23. In R (on the application of D) v A local authority [2020] EWHC 2916 (Admin) the Court said that it was not a “precondition for alternative provision to be provided that parents have obtained a consultant’s report. There may be other ways in which the child’s illness and inability to attend school come to the attention of the local authority”. The Judge said it was clear from section 19(1) itself that the “responsibility rests with the local authority to identify when alternative provision is required for a child on health grounds: it is the local authority’s decision”.
24. In new guidance “Summary of responsibilities where a mental health issue is affecting attendance” and “Working together to improve school attendance” the Government says professionals should provide cross-agency support through a team around the family to alleviate a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness that is mental health related. Schools should inform the Council where pupils are likely to miss more than fifteen days. Councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education.
25. 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
26. 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.

27. Under the Education (Pupil Registration) (England) Regulations 2006 a school can only remove the name of a pupil from its register in certain circumstances. These include where a pupil has ceased to attend the school and the proprietor of the school has received written notification from the parent that the pupil is receiving education otherwise than at school.

What happened

28. Ms X’s child, who has SEN and an EHC Plan, stopped attending school after an incident in late Spring 2023 which triggered school-related anxiety. Ms X says her child’s anxiety had been building up over a series of months before the incident and she had been in communication with the Council’s attendance team with her concerns at that time. Ms X requested a change of placement ahead of an annual review meeting due in the Summer term.
29. Just before the review meeting Ms X and the School approached the SEN officer about Ms X’s child’s non-attendance. Efforts to try and reintegrate into school since the incident had failed. Ms X asked about alternatives as it was now four weeks since her child had attended. She said the School was marking the absence as unauthorised, but the School advised the Council a return to that school was “untenable”.
30. The Officer advised Ms X she had two choices if she considered her child should not return to school: to electively home educate or request that her child be ‘off-rolled’. If off-rolling was agreed, the Officer said s.19 education would be put in place. As this was one to one provision, which was ‘intense’ this would start at just three hours per week, but could be increased, and would be kept under review. Ms X agreed to the second option and the Council decided to ‘off-roll’ and provide s.19 education.
31. Ms X then emailed the officer about the Teaching and Learning Provision service (TLP) as alternative provision based on ill-health. This would not require removal from the school roll, but her child could be supported off-site. The Council replied that this option was only available to pupils receiving ‘consultant level care’ but there were other routes to provide alternative provision. The officer said they would action the s.19 referral. Three days later the request to off-roll was agreed by a Manager.
32. The Council says its internal referral process for home tuition took ten working days after the Manager’s decision and the Council’s s.19 education service took another week to accept the referral. This left one week before the end of term, so tuition did not start until September. Meanwhile, at the annual review meeting, it was agreed to consult schools.
33. Ms X complained to the Council three weeks after the ‘off-rolling’ decision that no tuition had been set up and there had been no contact from the service providing the s.19 education. A further ten days later the service sent an introductory email stating their offer was three hours per week. A meeting in the summer holidays was offered to discuss the provision that would be put in place in September.
34. The Council told me the offer of three hours tuition per week was ‘agreed’ with Ms X at the meeting, however the notes do not support there was any discussion about the number of hours of tuition, or that Ms X could have chosen for her child to start with more than three hours. The information I have seen shows Ms X was informed three hours was the standard ‘initial service offer’, although this could be reviewed and increased once the pupil had demonstrated they were engaging well. Ms X was offered additional provision at a teaching centre, or online learning, but Ms X said this was not suitable.
35. The Council told me Ms X did not request more hours from the tuition service and had this happened more hours would have been provided. The Council told me it contacted an online teaching agency as a contingency so more hours could be offered. There is evidence to support the Council emailed an agency in late July stating as Ms X’s child had been ‘off-rolled’, and had no school place, ‘we will need to put in a fair amount of provision’ and enquiring about availability for September.
36. Ms X told me that no special educational provision in her child’s EHC Plan was delivered, just tuition. Ms X provided me with an email to the Council after the first week of tuition which shows she asked for the level of tuition to be increased. Ms X said her child was doing more work with her alongside the tuition and could manage more than three hours and she was concerned about how much education they had missed already.
37. The Council issued an amended final EHC Plan in September that named alternative provision of two hours per week. Ms X challenged this. The Council told Ms X the Plan stating two hours was an error and it should have stated three hours per week, being the current interim provision and that this wording was ‘standard’ for all children receiving interim provision. The officer reassured Ms X the error would not prevent access to the three hours tuition or any increases in future. The Council then issued another amended final Plan naming a special school in mid-September.
38. I asked the Council why three hours was its standard initial offer. The Council told me when children have high anxiety three hours is introduced to build a relationship with the child, but additional hours can be requested, and provision built up when the child is engaging with and attending the current offer. It says tuition stopped once Ms X’s child started three hour per week transition visits to the new school. The Council said it would not regard immediate fulltime attendance suitable when a child has been out of school with high anxiety as this could risk disengagement. It considered it was not in Ms X’s child’s best interests to rush the process and this was why it did not supplement the school placement with tuition.
39. Ms X told me the Council did not discuss with her what level of attendance her child could manage or discuss this with any professionals and this decision meant her child continued to miss out on special educational provision when they started transition into the new school. When Ms X applied for school transport, she asked for transport to support fulltime attendance from September. Ms X says her child was able to manage fulltime work with her at home from June.
40. Ms X told me once the special school was named, she applied for home to school transport. While this was agreed within the Council’s timescales, there then a delay while the provision was then secured. The Ombudsman has investigated this separately and found no fault by the Council in the time taken to put transport in place.
41. Documents from the school show Ms X’s child attended all planned transition visits over the month between the placement starting and half term. Transport then started after half term.

Analysis

42. I am not critical the Council did not put alternative provision in place immediately Ms X’s child stopped attending in Spring. Concerns started to be raised in April / May by Ms X, but a discussion at that time indicated attendance was still at 96% and Ms X was advised to hold a meeting with school. It will not have been immediately obvious after the incident Ms X’s child would not return to school or that attempts at reintegration would not be successful.
43. By the time Ms X contacted the Council in June about alternatives, a clear pattern had emerged. The School also confirmed to the Council a return to school was not tenable. The Council offered to ‘off-roll’ and put s.19 education in place but failed to put this in place within six days, that is by the start of July. Guidance on health needs says once a decision is made that s.19 education is required it should start within six days.
44. The Council told me in response to my first draft that it does not consider the six day period applied as Ms X’s child was out of school for ‘other’ reasons, not health reasons, so the guidance on health needs did not apply. While the Council agrees Ms X’s child had high anxiety, it says this was consistent with their autism diagnosis and SEN, and did not arise from a separate mental health condition.
45. I find that the Council took too long between agreeing to arrange the provision and the provision starting. It took longer than the six days allowed by statutory guidance for health needs. I am not persuaded that anxiety is not a health need, but even if the guidance on health needs did not apply, it is still open to me to find that provision was not in place ‘as quickly as possible’ as the Alternative Provision guidance requires. I can see no reason why there needed to be a referral and acceptance of the referral by the s.19 service taking three weeks when a Manager had already made the decision to off-roll and had already agreed s.19 education would be provided. There was nothing further to be decided after the third week of June.
46. Further, to meet the legal test to ‘off-roll’ a child requires a school to be provided with written confirmation that alternative provision is already in place. It was not open to the Council to ‘off-roll’ a child who was not yet in receipt of s.19 education. This is not consistent with the Education (Pupil Registration) (England) Regulations 2006.
47. I also am not persuaded by the advice the Council gave Ms X that her child could not remain on roll and receive medical tuition, as this required ‘consultant level care’. There is no such requirement in the Education Act or statutory guidance. The guidance and caselaw says Councils need to consider s.19 education even when there is no medical evidence readily available such as that from a consultant.
48. The Council has told me that Ms X wanted her child to be ‘off-rolled’ and that even if it had not done so the child would not have attended. It was not within Ms X’s gift to decide whether her child should be ‘off-rolled’, this is a decision for the School and Council. It is clear Ms X did enquire about alternatives so her child could remain on roll.
49. For all the above reasons I find alternative education should have started in July with three weeks of tuition provided before the end of term.
50. Provision started in September. There is evidence of good practice in that the Council discussed options with Ms X over the Summer. The Council explained a small number of hours would be introduced initially. The Council says this could have been increased on request or supplemented with online tuition. While there was no medical evidence to support less than fulltime education, Councils are permitted to use part-time timetables for short periods where this is deemed to be in the best interests of the child, and to support reintegration into education after a period of absence. The decision to provide three hours tuition initially and not to double up on tuition and transition visits once a place at the special school was commissioned is a professional judgement it was open to the Council to make.
51. However, the Council told me Ms X did not object to the level of tuition and that the three hours was agreed with her. I find the evidence does not support this. Ms X was presented with a ‘standard offer’ of three hours, she was not asked if she wanted her child to start with a higher number of hours and even if she had asked, it is clear this would not have been agreed as it was not the Council’s usual practice for children with high anxiety. I also find Ms X did ask for more hours after just one week of tuition. Ms X was doing work with her child herself, from June, fulltime, and continued to do so in September alongside the ‘offer’ of three hours. The Council told me if Ms X had asked to increase the hours this would have happened. Ms X did ask, and the hours were not increased. I consider if the tuition had started in July, on the balance of probabilities Ms X would also have asked then to increase it quickly, as she did in September.
52. The Council decided to stop the tuition while Ms X’s child transitioned into their new school. I find this was not agreed with Ms X, who wanted tuition to continue. However, the Council has given reasons why it decided to stop tuition when visits started, which it says are based on experience of transitioning children into school who have a history of previous anxiety and placement breakdown. The Ombudsman cannot challenge a judgment made by the Council without fault, even if we may have made a different decision on the same facts. (Local Government Act 1974, section 34(3), as amended)
53. The Council amended the EHC Plan to name interim provision of two hours per week tuition (while it continued to find a special school). It stated this was provided under s.61 (Education otherwise than at School). Ms X did not appeal this Plan, although she quickly challenged it. A new school was then found so the Plan was amended again, and Ms X agreed with the placement named. I can investigate this matter as Ms X has not used an appeal right and I consider it was reasonable for her to have challenged the two hours per week informally in the first instance rather than immediately lodged an appeal.
54. The law says EOTAS under s.61 can only be named in an EHC Plan where a Council has decided it is not appropriate for provision to be made in a school. Caselaw also states that the term ‘a’ school should be read as ‘any’ school, which means the Council could only amend the Plan to EOTAS under s.61 if it was of the view Ms X’s child could not receive provision in any school. Clearly this was not the case as the Council was at the time consulting schools for Ms X’s child to attend and named one very shortly afterwards. The Council has acknowledged in its reply to my draft decision that the reference in Section F of the EHC Plan to provision being provided under s.61 may have been premature as it had not yet decided Ms X’s child’s needs could not be met in any school. The Council has acknowledged that in fact the interim provision made available was under s.19 Education Act 1996 and s.42 Children and Families Act, not s.61. The Council has acknowledged it failed to communicate the difference to Ms X clearly. This caused Ms X avoidable distress as she believed the Council intended to restrict her child’s education to just two hours per week.
55. Our Guidance on Remedies recommends a symbolic payment for when education is lost due to fault of between £900 and £2400 per term to acknowledge the impact of that fault. I have found the period of lost education for which I can recommend a remedy to be a maximum of three weeks and that I cannot question the Council’s decision to start this at three hours per week. I find that Ms X would, on the balance of probabilities, have asked to increase this from week 2, as she did in September and given her child was doing many more hours of learning with her. The Council told me such a request would have been agreed.

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Agreed action

Within four weeks of my final decision:

56. The Council will apologise to Ms X for the faults identified in this decision statement.
57. The Council will pay Ms X on behalf of her child £400 for the failure to provide tuition in July 2023.

Within two months of my final decision:

58. The Council will review its processes for alternative provision to ensure they are in line with current statutory guidance in terms of timescale and the requirement for medical evidence.
59. The Council will review its use of ‘off-rolling’ to ensure this is only used where the legal criteria is met.
60. The Council will ensure that appropriate wording is used in EHC Plans to specify whether alternative provision is interim provision or whether it has decided a child’s needs cannot be met in any school and EOTAS is required.
61. The Council will provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation. There was delay in putting alternative education in place when a child was unable to attend school due to anxiety and the Council ‘off-rolled’ the child from their school. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman