Summary: Mrs X complains the Council failed to provide alternative education provision for her son, Y, when he could not attend school. The Council is at fault as it did not consider whether it had a duty to provide alternative provision for Y. The Council is also at fault as it did not keep Y’s part time attendance at school under review. The faults by the Council caused uncertainty to Mrs X and caused Y to miss five weeks of education provision. The Council has agreed to remedy this injustice by apologising to Mrs X and making a symbolic payment of £500 to her for distress and a symbolic payment of £300 for Y. The Council will also reimburse the costs of the alternative provision made by Mrs X during the five weeks period of missed education provision.

The complaint

1. Mrs X complains that the Council:

1. Failed to provide alternative education provision for her son, Y, when he was unable to attend school from October 2022.
2. Named a school that cannot meet Y’s needs on his Education, Health and Care plan.
3. Failed to ensure the school delivered the provision set out in section F of Y’s Education, Health and Care plan.

2. As a result, Y has not received sufficient and appropriate education since October 2022 which has caused significant distress to him and his family. It has also had financial implications for the family as Mrs X has had to stop work and fund alternative provision for Y.

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The Ombudsman’s role and powers

3. 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)
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 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)
6. 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.
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)
8. 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 have and have not investigated

9. I have investigated events up to 10 May 2023 when the Council issued the final Education Health and Care (EHC) plan naming a school. The Council issued a EHC plan in April 2023 but it is not reasonable to expect Mrs X to have appealed at that time as the Council was consulting schools for a place for Y.
10. I have not investigated events after 10 May 2023 when the Council issued the final EHC plan with the named school. Mrs X appealed to SEND Tribunal against the placement named in the EHC plan. This includes the Council’s decision to name Y’s current school in the EHC plan.
11. I also have not investigated Mrs X’s complaint about Y not receiving the provision set out in his EHC plan. Y did not receive the provision as he could not attend the school named in his EHC plan. This complaint is therefore not separable from Mrs X’s appeal to the SEND Tribunal.

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How I considered this complaint

12. I have:

• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

13. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 

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. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
16. 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))
17. 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)
18. The Department for Education (DfE) non-statutory guidance states all pupils of compulsory school age are entitled to a full-time education. 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 condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a reintegration package. A part-time timetable must not be treated as a long-term solution. (DfE School Attendance: guidance for schools, August 2020)
19. 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
20. 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;

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

Our jurisdiction

21. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
22. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

What happened

23. Mrs X’s son Y attended a primary school but started to struggle to attend due to severe anxiety and his special educational needs. In December 2022, Y’s school wrote to the Council to request an EHC needs assessment for Y. In the covering letter the school said:

• Y had demonstrated extreme levels of anxiety since September 2022.
• It had placed him on a reduced timetable since October half term due to the level of his distress in school.
• Y was refusing school with the exception of morning play sessions three days per week. It could not work towards getting Y to attend full time without support.
• It was reaching crisis point of being unable to meet Y’s needs as it had provided a range of adjustments for Y which were no longer supporting his return to school.

24. The Council agreed carry out the EHC needs assessment for Y.
25. In late January 2023, Y’s doctor certified him as being medically unfit to attend school. In February 2023, the Council’s medical panel considered if Y should be referred to the medical pathway. This is alternative education provision for pupils with significant health needs. The Council has said the panel noted Y’s GP would review if he was well enough to attend school after six weeks and suggested the school submit a further referral after the review. The Council has said the panel reconsidered Y’s case in March 2023, including an educational psychologist’s report provided by the school. The Council has said the panel concluded the threshold for the medical pathway had not been met. It has not given any reasons for this decision.
26. The Council carried out the assessment and agreed to issue an EHC plan. It issued a draft EHC plan for Y in March 2023. Mrs X provided her comments on the draft EHC plan in early April 2023. In the same email, Mrs X requested alternative provision for Y as he could not attend school. The Council advised Mrs X that it was the responsibility of the school to provide alternative provision for Y as he was still on the school roll. Mrs X questioned this as the school had earlier referred her to the Council to seek alternative provision via its medical panel. Mrs X said Y had not had any suitable education since he moved onto a reduced timetable in October 2022.
27. The Council issued a final EHC Plan in April 2023. It did not name a school as it was consulting providers on a specialist placement for Y. The Council also consulted Y’s current school which said it could not meet his needs.
28. The Council’s records show an officer initially told Mrs X that it was the school’s responsibility to provide suitable education for Y. They then said they would contact the school regarding alternative provision. Mrs X said that Y was not ready for full time education but would like one hour a day to cover English and Maths. The records also note Mrs X advised the school had provided some links to worksheets and general class work.
29. In late April 2023, the Council contacted the school to find out what provision it was making for Y. The school advised it had sent a work pack to Y but Mrs X advised Y was unable to complete it. It also signposted Mrs X to online resources so Mrs X could access content specific to Y’s year group and links to other activities. The Council’s records note Mrs X was unhappy with the work sent by the school as it was not differentiated to Y’s needs and he was unable to complete it. Mrs X also said she did not feel qualified to teach Y.
30. An email between the school and the Council shows the school said it did not consider virtual tutoring would work for Y and it could not send a member of staff to Y’s home. The school suggested the Council could arrange tutoring provision. The Council said it would be better for the school to organise a home tutor for Y as it was responsible for the quality of Y’s education while he was on roll.
31. The Council named Y’s current school on the final EHC plan until a specialist placement could be found. Mrs X appealed against this decision to the SEND Tribunal.
32. Mrs X made a complaint to the Council that it had not made alternative provision for Y since he was unable to attend school full time. Mrs X also complained the Council had not ensured Y received the provision set out in section F of his EHC plan. The Council did not uphold her complaint. It said that it had fulfilled its legal duty to provide appropriate education. Y's school had also provided work for Y to complete and online platforms with work tailored to Y’s needs. The Council said the school could not deliver all the provision in section F as Y was not in school.
33. Mrs X has said she funded activities for Y to engage him as she considered they had been left without support for Y.
34. In response to my enquiries the Council has said:

• The school were able to use funding to provide suitable education for Y while he was attending school on an intermittent basis.
• Mr and Mrs X met with the school to discuss suitable alternative provision in May 2023 and the school funded weekly sessions at a farm school from May 2023.
• It understands Y was unable to engage with any online learning therefore the view was taken that face to face tuition would not be appropriate.
• It did not consider it necessary to source alternative provision for Y when consulting on placements for his EHC plan as the school was engaging with Mr and Mrs X to make provision.

Analysis

35. Section 19 of the Education Act provides 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 Council’s duty to consider its section 19 duty and arrange alternative provision applies even when a child is on the school roll. I consider the Council did not properly consider if it had a duty to make alternative provision for Y. I explain my reasons below.
36. The Council became aware in December 2022, when the school submitted the EHC needs assessment request, that Y was not attending school full time and was only attending school for play sessions. There is no evidence to show the Council considered if the education provided was available and accessible for Y at that time and whether it had a duty to provide alternative provision for him. The Council was in the process of considering the school’s request for a EHC needs assessment. But it should still have considered its section 19 duty and whether it had a duty to make alternative provision until it could issue a EHC plan with a named placement. The failure to do so is fault.
37. There is also no evidence to show the Council explored the reasons Y could not attend school full time. There is no evidence to show it kept Y’s part time attendance under review with a view to increasing it or to consider what support could be offered. This is fault.
38. The statutory guidance ‘arranging education for children who cannot attend school because of health needs’ provides councils should arrange suitable alternative provision when it is clear a child will be away from school for 15 days or more because of their health needs. Y’s GP had signed him off for six weeks so it was evident in late January 2023 that Y would be away from school for more than 15 days due to health needs. The Council should therefore have considered if it needed to make alternative provision for him. The school had provided online resources for Y but the Council should have satisfied itself this was suitable to meet Y’s needs. The failure to do so is fault.
39. The Council’s medical panel considered if Y should be referred to the medical pathway for alternative provision in March 2023 and decided he did not meet the threshold. When reaching its decision the panel considered the report from the educational psychologist. I therefore cannot conclude there is evidence of fault in how the panel reached its decision as it considered the appropriate evidence.
40. But the Council has not provided the medical panel’s record of this decision or any reasons for the decision. This is fault as councils should be transparent so they have to be able to explain their decisions. There is also no evidence to show the Council considered if Y was out of school for ‘other’ reasons.
41. There is no evidence to show the Council satisfied itself that the online provision was accessible and suitable for Y at any time when it became aware Y was not in school. In April 2023, Mrs X and the school told the Council that Y was not accessing the online provision made by the school. Despite this, there is no evidence to show the Council satisfied itself that the education was accessible for Y and considered whether it had a duty to make alternative provision for Y. This is fault.

Injustice to Mrs X and Y

42. I cannot know, on balance, if the Council would have considered the education provided to Y to be accessible if it had considered its section 19 duty between December 2022 and March 2023. I also cannot know if the Council would have made alternative provision or considered the education provided by the school to be suitable when Y was signed off by the GP. But the failure to consider the Section 19 duty causes some uncertainty to Mrs X about what education may have been provided for Y.
43. On balance, I consider the Council would have accepted a duty to make alternative provision for Y if it had considered its duty in April 2023. I say this as both the school and Mrs X said Y was not engaging with the online provision so it is unlikely it would have found the education to be accessible to him. Emails between the school and the Council at this time show the school suggested the Council arrange face to face tutoring for Y which suggests the online provision was not suitable. It also demonstrated Y could not engage with virtual tuition. I cannot say, on balance, Y would have been able to engage with the equivalent of full time education. But the Council could have made some non-curriculum provision available for Y or met the costs of the provision arranged by Mrs X.
44. I therefore consider Y missed education provision between 4 April 2023 when Mrs X raised that he was not able to engage with online provision and 10 May 2023 when the Council issued the final EHC plan. This is a period of five weeks which the Council should remedy as it will have disadvantaged Y. I cannot consider the period after 10 May 2023 for the reasons set out at paragraph 10.
45. I have taken account of the fact that it is unlikely Y could have engaged with full time education even if it had been provided. I therefore consider it is proportionate to recommend a symbolic payment of £300 for Y to acknowledge the impact of the missed provision on him for the period of five weeks.
46. The failure of the Council to consider its section 19 duty, keep under review Y’s part time attendance and failure to make alternative provision for Y for five weeks has caused significant distress and uncertainty to Mrs X. The Council should therefore make a symbolic payment of £500 to Mrs X to acknowledge this distress. The Council should also reimburse the costs of alternative provision arranged by Mrs X for Y for the five week period between 4 April and 10 May 2023. This is subject to satisfactory evidence from Mrs X to show the costs incurred.
47. I also make recommendations for service improvements below.

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Agreed action

48. That the Council will:
1. Send a written apology to Mrs X for the distress and uncertainty caused by the Council failing to consider its section 19 duty, failing to keep Y’s part time attendance under review and failing to make alternative provision for Y for five weeks. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Make symbolic payments to Mrs X of:

• £300 to acknowledge the impact of five weeks missed provision on Y
• £500 to acknowledge the distress and uncertainty caused to Mrs X and her family.
3. Reimburse the costs of alternative provision funded by Mrs X between 4 April and 10 May 2023 subject to satisfactory evidence provided by Mrs X of the costs incurred.
4. By training or other means, share the learning from this complaint with officers and to remind officers of the Council’s duty under section 19 of the Education Act to make alternative provision. This should include that the Council must consider the test of whether the education provided is available and accessible to the child and that the section 19 duty applies to children whether or not they are on the school roll. Officers should also be reminded to record their decision on whether the section 19 duty applies and brief reasons for their decision.
5. Ensure it keeps under review children who are attending school part time with a view to increasing their attendance and to monitor the suitability of their education.
6. Ensure the medical panel keeps a record of its decisions on whether to refer a child to the medical pathway. The record should include brief reasons for the panel’s decisions.

49. The Council should take the action at a) to c) within one month and d) to f) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. Fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman