Summary: We found no fault on Mrs B’s complaint about the Council failing to provide her daughter with suitable alternative education provision. It had no reason to consider it as she had a part time school timetable, received support, and was assessed by an educational psychologist as part of her Education Heath and Care assessment. The draft Education Health and Care Plan made no provision for her to receive alternative provision.

The complaint

1. Mrs B complains the Council has failed her daughter, C, who is out of school, by not providing her with suitable alternative education provision in an appropriate setting: as a result, her daughter is receiving no education provision except that which she is funding privately. This puts them all under a great deal of stress, particularly her daughter.

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The Ombudsman’s role and powers

2. 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)
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 cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
5. 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. 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)
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. 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

8. I have not investigated the following:

• Any complaint about the suitability of the provision set out in the Education, Health and Care Plan (EHCP) or any dispute about it. This is because Mrs B had the right to appeal it to the Special Educational Needs and Disability Tribunal (the Tribunal). 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. 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) I have seen no reason why we should investigate any such complaint. This is because there is nothing to show it was unreasonable for her to appeal this decision.
• What this means is the Council naming of this school, which she argued is not suitable as her daughter needs alternative provision, is outside of our jurisdiction as there was a right of appeal against this along with any disagreement about the provision set out in the EHCP. The consequence of naming that school (no education provision received since the issuing of the EHCP, as her daughter will not attend) is also outside of our jurisdiction from the issuing of the EHCP. This is because case law says an alternative legal remedy to challenge the Council’s decision means we cannot look at the decision itself nor its consequences.
• Any complaint Mrs B may have about the Council’s actions that took place before February 2023 as this is a ‘late’ complaint. This is because she complained to us in February 2024. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) I have not seen any reason why we should exercise discretion to investigate any earlier part of her complaint.
• I have only investigated the Council’s actions from February to July 2023 as the Council issued the EHCP the following month.

Education, Health and Care Plans

9. A child with special educational needs may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the Tribunal or Council can do this.
10. Statutory guidance, ‘Special educational needs and disability Code of Practice: 0 to 25 years’ sets out the process for carrying out Education Heath and Care (EHC) needs assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and The Special Educational Needs and Disability Regulations 2014.
11. The Special Educational Needs and Disability Regulations 2014 set out a statutory timescale from receiving a request. A council has 20 weeks from receiving it (which includes deciding whether to carry out an assessment, carrying out the assessment, and issuing a draft EHCP) to issue a final EHCP.
12. The Council must secure the special educational provision where it maintains an EHCP for the child. This does not apply where the child’s parents, for example, have made suitable alternative arrangements. (Children and Families Act 2014, section 42 (2) and (5))

Alternative provision

13. 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.
14. 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)
15. The courts have considered the circumstances where the section 19 duty applies. Caselaw confirmed 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)

Council: Education other than at school

16. The Council’s website states it may, in exceptional circumstances, only when all other options have been considered, provide ‘education otherwise than at school’ (EOTAS). This is on a temporary basis until suitable long-term provision is secured. EOTAS is where a child or young person with an EHCP can receive education provision despite not being able to attend an educational setting.
17. EOTAS will only be provided when:

• The child or young person has an EHCP; and
• It is satisfied it would be inappropriate for any special educational provision it has decided is needed be made in any school.

18. The EOTAS service will provide education where it is deemed ‘inappropriate’ for a child or young person to attend school. The expectation is a child should attend a school setting unless it is inappropriate for them to do so. This is a discretionary power under section 61 of the Children and Families Act 2014.

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How I considered this complaint

19. I considered all the information Mrs B sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs B and the Council. I considered their responses.

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What I found

20. In April 2023, the Council received a request for an EHC needs assessment for Mrs B’s daughter, C. This noted she was on a part time timetable with low attendance and suffered from panic attacks and anxiety. This affected her attendance at school. It was made by Mrs B who was increasingly concerned about C’s attendance and progress at school because of her anxiety.
21. An educational psychologist in June noted: her attendance had been just below 70%; the support to reintegrate her back into school she was given included a part time timetable of up to a couple of hours a day; she had 1:1 sessions with English lessons most days; she had daily support from the education welfare officer, access to lunch club, corridor and leave lesson early passes, and adjusted seating plans; she also had 1:1 teacher check-ins and questions within lessons, as well as individual work added to Google Classroom; a diagnosis of anxiety by her GP.
22. Mrs B noted the 1:1 sessions were in school, and the school environment was the problem for C. Nor could she eat while at school. During this period, Mrs B said C was not attending classes, or entering classrooms, when she attended school.
23. The school named in the draft EHCP confirmed it could meet C’s needs which were set out in it.
24. C had a final EHCP issued in July which would start in August. This stated C would have a personalised reintegration plan to support her return to school and be supported to fill gaps in learning, for example. In addition, she would be supported to use Cognitive Behavioural Therapy strategies to help her manage her sensitivity and heightened anxiety through gradual exposure, calming, and grounding techniques. Social, Emotional and Mental Health sessions would also be provided.
25. In September, C stopped going to the school because of severe anxiety. Mrs B did not consider the named school was suitable and argued alternative tailor-made provision was needed.
26. She complained C received no education from September 2022 apart from four sessions a week of 30 minutes online learning. While I have seen evidence of Mrs B saying C refused to return to school, she explained this was because C was distressed.
27. Mrs B claimed while it was suggested she ask the Council to provide a personal budget for a short break, it refused without an autism diagnosis of C. The Council’s website confirmed short breaks are provided for a child or your person with a diagnosed disability.
28. The Council explained Mrs B needed to provide medical evidence C could not attend ‘any school’ for it to consider EOTAS. It told her it would only provide EOTAS if a child has an EHCP, and it was satisfied it would be inappropriate for any special educational provision she needed to be made in any school or part of it.
29. The Council also explained between February and August, C’s attendance at school declined due to anxiety and social interaction difficulties. While still on the school roll, she began attending on a part time basis after the agreement of a reintegration plan with the school, the Council, and parents. A multi-agency approach was used to support C. The education welfare service, for example, offered advice and support on attendance and engagement.
30. Her GP referred C to the Child and Adolescent Mental Health Services (CAMHS) in April. CAMHS assessed her in September and offered her cognitive behavioural therapy sessions The autism spectrum disorder assessment team considered whether C met the autism criteria. During this period, an early help assessment was also in place to support C and identify outcomes to work towards.
31. The Council confirmed Mrs B did not provide any evidence or information about C being unable to attend school before the issuing of the EHCP. While the EHC needs assessment said C had anxiety, it did not say she was unable to go to school. Nor did it identify any exceptional circumstances which made it unreasonable for C to attend the school. The difficulties and distress she experienced during this period were not exceptional nor beyond the range of challenges young people face. Mrs B disagreed.
32. It did not consider alternative provision before the issuing of the EHCP. This was because all parties were working to get C to return to school. Mrs B had not asked for this during this period either. It did not consider alternative provision would have been appropriate at this point.
33. It was only towards the end of August that Mrs B said C was now refusing to attend school although did not want to change schools. At this point, the EHCP had not been issued. Nor had its provisions been given the chance to make an impact on attendance.
34. The Council explained each case is decided on an individual basis and C did not, at this time, meet its criteria for EOTAS provision. It considered the provision at school suitable for her. It monitored progress, and the impact of the education arranged. It provided feedback and guidance where necessary.
35. More recently, it decided to offer a learning package for C to help her progress and to support her. It was still assessing C’s needs and preferences as well as the availability and suitability of various options. It asked for more information both from the school and Mrs B about C’s progress and attendance. Until it decides, C remains on the roll at the named school. It is now also considering a personal budget or alternative provision.

My findings

36. I found no fault on this complaint for the following reasons:
1. During the period of this investigation (February to July 2023), C was attending school under a part time timetable with support and did not have an EHCP. The educational psychologist recorded the support and help C received from the school and did not state C needed alternative provision. The draft EHCP named the school, and the provision outlined involved the school and C attending it. The school confirmed it could meet C’s needs set out in the draft EHCP. Nor was there any request from Mrs B for C to have alternative provision.
2. This evidence satisfies me the Council had no reason to consider if it needed to make alternative provision during this period. This is because the school was providing some education and support, the educational psychologist did not make recommendations for it, and the draft EHCP was focused on her being at school and receiving support. No final EHCP had been issued during this period either.

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Final decision

37. I found no fault on Mrs B’s complaint against the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman