Summary: We did not find fault with the Council in how it approached its duties for the complainant’s (Mrs X) son (Y) when Y stopped attending school. We cannot investigate whether the Council arranged suitable alternative provision for Y and delivered his special educational provision from the date of issuing Y’s final Education Health and Care Plan in March 2023. Mrs X appealed Sections B, F and I of this plan and the matters complained about are too closely linked with the appeal.

The complaint

1. Mrs X says the Council failed to provide suitable education for Y when he was out of school due to medical reasons.
2. Mrs X says the Council’s failings meant Y missed much education. They also affected the whole family as Mrs X had to adapt her working schedule to look after Y. The lack of support for Y caused significant 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. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
6. 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.
7. 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)
8. 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.
9. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
10. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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What I have and have not investigated

11. I have not investigated whether the Council fulfilled its duties to provide education and special educational provision to Y from the date Y’s final Education Health and Care (EHC) Plan was issued at the beginning of March 2023.
12. Mrs X appealed Section B, F and I of Y’s EHC Plan. An appeal to the SEND Tribunal about the content of the plan – about the child’s needs, the provision, or the setting – asks the SEND Tribunal to decide whether the education a council is providing, or proposes to provide, is suitable. If, during that appeal period, a child is not attending the setting named in the EHC Plan for reasons that are closely related to their special educational needs (SEN), we would consider the absence too closely linked to the wider question of whether EHC Plan is suitable, which is the question the Tribunal has been asked to consider. We cannot consider a complaint about educational provision delivered from when the appeal right arose up until the point the Tribunal settles that question.

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How I considered this complaint

13. I spoke with Mrs X and considered the information she provided.
14. I made enquiries with the Council and considered the information it provided.
15. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative framework

16. 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.
17. 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)
18. 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)
19. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.

What happened

20. In summer 2022 the Council received a request for Y’s EHC needs assessment.
21. After the referral to the Council’s SEND Hub and following Y’s assessment, from the end of May 2022 an intervention plan was put in place to support Y’s speech and language needs as well as his social emotional and mental health needs.
22. At the beginning of October 2022 Y stopped attending his mainstream primary school (the School). The School referred Y to the Council’s SEND Hub.
23. A meeting took place in the School at the beginning of November 2022 with the person allocated by SEND Hub to support Y attending. It was decided Y would have an individualised timetable and the SEND Hub would help with his reintegration back to the School. Several home visits and visits to the School followed. This proved unsuccessful.
24. The School offered to Y home learning packs and online educational account but these offers were not taken up. Mrs X explained Y could not engage with any education coming from the School as this triggered his anxiety.
25. At the beginning of December the School received a letter from Y’s doctor stating he was medically unfit to attend the school.
26. In mid-December the School’s headteacher contacted Mrs X acknowledging Y could not come to school earlier this day. She offered to upload some more material for Y to the School’s online platform. She also said she had set up an online reading account for Y which could be accessed from his portable device and he might find easier to engage with.
27. The School referred Y to the Council’s Medical Education Service (MES) in mid-January 2023. Over a week later the Council decided to offer advice to the School and gather further information. Three weeks later the Council decided to explore provision of home tuition for Y.
28. The MES tutor visited Y at home at the beginning of March. Following this visit some individual home tutoring started for Y.
29. In the first week of March 2023 the Council issued Y’s final EHC Plan, naming the School in Section I. Mrs X appealed Sections B, F and I of the EHC Plan in June 2023. She asked the SEND Tribunal to leave Section I blank and in Section F to specify details of an Education Otherwise than at School (EOTAS) package.

Analysis

30. For the reasons explained in paragraphs seven to ten of this decision I cannot investigate provision of education and special educational provision from the beginning of March 2023, therefore I can only look at the Council’s action from the end of 2022.
31. In the autumn term of 2022 the Council knew about Y’s difficulties in attending the School, as the Council’s service was involved in supporting Y. The SEND Hub participated in the unsuccessful try to reintegrate Y into the School and should have told the MES some time in December 2022.
32. After receiving the MES referral from the School in mid-January 2023 it took a few weeks for the Council to provide advice to the School and gather some further information. At this stage the Council was deciding whether it had a duty to provide alternative education to Y. In mid-February the Council decided to start providing home tutoring to Y and the first visit from the tutor took place at the beginning of March.
33. The Ombudsman issued a focus report “Out of school, out of sight?" in July 2022, updated in August 2023. This highlighted guidance for local authorities to reflect on their services and consider what improvements may be necessary, to ensure children who cannot attend school receive suitable full-time education. We expect council to:
• Consider the individual circumstances of each case and be aware that the council may need to act whatever the reason for absence (except for the minor issues schools deal with on a day-to-day basis) – and even when a child is on a school roll.
• Consult all the professionals involved in a child’s education and welfare, and take account of the evidence when making decisions.
• 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 are properly fulfilled.
34. Once the Council received a referral to its MES services, it acted appropriately. Specifically the Council:
• Gathered evidence to inform its position on alternative education for Y;
• Made an evidence-based decision.
35. The remaining matter for me to decide is whether there were any significant delays with the Council’s process, which would amount to fault. The Council should have started considering the need for alternative provision for Y in December 2022 and possibly taking three weeks to decide if Y needed individual tutoring was too long. The overall delays, however, amounted to a maximum of three to four weeks which is not long enough to consider the Council to be at fault.
36. I did not look at the suitability of alternative provision offered to Y by the Council. Starting this provision coincided with issuing Y’s final EHC Plan. Because Mrs X appealed to the SEND Tribunal, I cannot look at the matters linked with naming the School in Section I.

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Final decision

37. I do not uphold this complaint. I did not find fault in the way the Council approached its duties for Y when he stopped attending school. I cannot investigate delivery of education and special educational provision to Y from the date Y’s EHC Plan was issued as Mrs X appealed to the SEND Tribunal.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman