Summary: Mrs Y complains the Council failed to make alternative provision available for her son, D, when he stopped attending school at the end of 2022. She also complains about the decision not to issue an EHC plan for D. In our view, there is no fault in how the Council made its decision not to make provision available when D stopped attending school. It considered medical evidence and decided he had an accessible school place available for him. We have not investigated the second part of Mrs Y’s complaint because she had a right of appeal to the Tribunal which she has already used.

The complaint

1. Mrs Y complains the Council failed to make alternative provision available for her son, D, while he was out of school.
2. Mrs Y also complains about the Council’s decision to refuse to issue an Education Health and Care Plan. As a result, she says her son’s education and welfare have suffered.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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

6. I have not investigated the complaint summarised in paragraph two of this statement. This is because the law says we cannot investigate a complaint if someone has appealed to a tribunal about the same matter. The records show that Mrs Y appealed against the Council’s decision to refuse to issue an EHC plan for D. This matter is therefore outside of the Ombudsman’s jurisdiction.

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How I considered this complaint

7. During my investigation I considered the information provided by Mrs Y and gave her the opportunity to discuss the complaint with me by telephone.
8. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making this final decision.

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What I found

Section 19 duty

10. 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).
11. This duty 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)

Available and accessible education

12. 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)
13. 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 to medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Summary of key events

14. In September 2022 D started Year 7 of a mainstream secondary school. In mid-December, and after D’s first term at school, he stopped attending. The records show the main reasons for D’s non-attendance were due to extreme anxiety, sensory overwhelm and other factors relating to his ASD [Autistic Spectrum Disorder]. Mrs Y asked the Council to assess D for an EHC plan.
15. The Council arranged an Educational Psychology assessment for D in January 2023. This said that “… [D] will require a personalised plan to return to a school learning environment”.
16. The Council refused to assess D and Mrs Y appealed.
17. D’s GP submitted information to the Council in May 2023 which said:
• D has ASD and possibly Pathological Demand Avoidance, although the latter is not formally diagnosed.
• D is refusing to attend school because his ASD needs have not been met.
• D struggles with anxiety and pressures of mainstream school. He is fearful of being unsafe and cannot cope with the level of expectation and demand.
• Noisy and busy environments over-stimulate D and he will often have a meltdown of emotions after school. He gets tired easily from ‘masking’ emotions when at school.
• D makes friends easily but masks his inner emotions very well. He is very emotional and sensitive.
• The mainstream school environment is unsuitable for D because of his ASD. D needs somewhere nurturing where staff can get to know him and his needs.
• D needs an EHC plan to support him to access an education in an appropriate environment.
• D remains on the waiting list for the ‘Child and Adolescent Mental Health Service’ (CAMHS).
18. The secondary school referred D’s case to the Council’s S19 panel for consideration. The referral was refused on 20 June due to insufficient medical evidence. The panel said D’s needs and his reasons for absence, as outlined in the GP submission, were related to his longer-term SEND needs rather than due to an immediate or short-term period of illness.
19. The Council allocated an education keyworker to D’s case to help him re-engage with school. Mrs Y declined the offer because she said D was unlikely to engage as he would know the keyworker’s aim was to support his return to school.
20. The following day a Team Around the Family (TAF) meeting took place. Mrs Y said D needed a neutral mentor whose purpose was to support D’s needs and gain his trust.
21. On 19 September the SEND Tribunal ordered the Council to assess D for an EHC plan.
22. Mrs Y commissioned a private mental health assessment for D on 24 October. In summary the report said, “Mainstream schooling must be avoided as there is sufficient evidence to support given that [D’s] mental health is now significantly impacted… Whilst the school feel they can meet [D’s] needs, I am not in agreement in that they cannot possibly be expected to act as Teacher and Mental Health Nurse specialist, and have been unable to avert [D] experiencing a mental health breakdown”.
23. The Council received an Educational Psychologist’s report on 23 November. This said that D experiences “emotionally based school avoidance”. The report said D’s previous school provided a range of targeted support, including the use of quiet supervised spaces, an exit card and small group interventions.
24. On 21 December the Council issued its decision to refuse to issue an EHC plan for D. The decision letter sent to Mrs Y said, “We have considered all the evidence from you and the professionals and whilst we agree that [D] has special educational needs, we feel that their needs can be met by the SEN resources normally available in your school or setting”.
25. Mrs Y submitted an appeal against the Council’s decision on 4 January 2024. She said D needed education to be delivered other than at school [EOTAS]. Mrs Y also wrote to the Council on 11 January requesting provision for D under S19 of the Education Act.
26. The Council responded to Mrs Y’s complaint on 9 February. In summary, it said:
• The Council’s ‘Education Wellbeing Team’ became involved in D’s case from June 2023. A keyworker was allocated to support D with re-engagement, but Mrs Y declined because she felt it was unsuitable.
• The panel considered D’s case, including evidence provided by the GP and school. The Council said evidence is usually needed from a Paediatrician or CAMHS, but acknowledged it is for the Council to make a judgement where evidence is not readily available.
• D’s case was considered by the ‘Triage’ panel but was refused because his needs were in line with long term SEND needs rather than an immediate or short-term period of illness.
• The Council acknowledges the need to improve services and communication with parents. It has made some recent changes to the medical inclusion process. With that said, the Council says it is unlikely there would have been a different outcome for D.
27. The Council agreed to settle Mrs Y’s appeal in June before the scheduled hearing in December. The Council has recently issued D’s final EHC plan naming a mainstream secondary school.

Was there fault causing injustice to Mrs Y and D?

28. Our role is not to establish whether the Council could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
29. I have considered the steps the Council took to consider D’s case, and the information it took account of when deciding not to provide alternative provision when it became aware he had stopped attending school. In my view, and based on the evidence seen, I do not find fault in how the Council made its decision and I therefore cannot question whether that decision was right or wrong.
30. The records show the Council considered information from the school and a GP submission made in May 2023 before deciding that D did not need alternative provision. The Council was entitled to reach this decision for the reasons explained in paragraphs 12 and 13 of this statement.
31. As a result of this it was the Council’s view that D’s mainstream school was both available and accessible for him. This view was also echoed by the school. The Council continues to believe that a mainstream school is suitable for D; a decision which carries a right of appeal now that D has a final EHC plan. While I recognise Mrs Y disagrees with the Council’s view on the accessibility of a mainstream school, I have found no evidence of fault in how the Council made its decision and the weight it gave to the evidence submitted for D.

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Final decision

32. I have completed my investigation with a finding of no fault for the reasons explained in this statement. We have not investigated Mrs Y’s complaint about the Council’s decision to refuse to issue an EHC plan because she has already appealed this with the tribunal and the Council has recently conceded.

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Investigator's decision on behalf of the Ombudsman