Summary: The Council was not at fault for refusing to deliver alternative educational provision to Ms B’s son while he was out of school. It followed correct procedure and considered evidence properly before reaching its decision. However, it was at fault for a short delay in providing support for Ms B’s son’s special educational needs. It has agreed to make a symbolic payment to recognise his injustice.

The complaint

1. The complainant, whom I refer to as Ms B, complains that:
• After her son – whom I refer to as C – stopped being able to attend school, the Council failed to deliver a suitable, full-time education to him.
• The Council has also failed to deliver C’s special educational needs support.
• C’s school admitted that it could not deliver part of his special educational needs support. This demonstrates that the school was unsuitable.
2. Ms B says these matters caused distress to her and C.

Back to top

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. If we are satisfied with a council’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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

6. I considered:
• Information from Ms B and the Council.
• Relevant law and government guidance.
• The Ombudsman’s remedies guidance.
7. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

The Council’s responsibilities

Special educational needs

8. A child with special educational needs may have an education, health and care (EHC) plan. This sets out how to meet the child’s needs. The plan is set out in sections, including section F: the provision needed by the child.
9. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. (Children and Families Act 2014, Section 42)
10. The provision should be in place as soon as the final EHC plan is issued. (SEND code of practice)
11. The duty to arrange this provision is non-delegable. This means if a council asks another organisation to deliver the provision and that organisation fails to do so, the council remains liable. (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

Children out of school

12. Councils must arrange suitable education for children who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19)
13. We refer to this as ‘alternative provision’.
14. When a council is considering whether it has a duty to provide alternative provision, the “acid test” is whether the education already on offer to the child is “available and accessible” to them. (R (on the application of DS) v Wolverhampton City Council 2017)
15. If specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP”. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
16. It is up to a council to decide whether a child’s health needs prevent them from attending school, and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

What happened

17. In late July 2023, it was decided – following an unsuccessful Tribunal appeal by Ms B – that C would start at his new school in September.
18. Ms B informed the school, and, upon hearing this, the school speculated that it may not be able to deliver part of C’s EHC plan.
19. C started at the school in September on a part-time timetable. This was intended to make the transition easier.
20. Shortly after this, the Council finalised C’s EHC plan. This included weekly sessions of occupational and speech and language therapies.
21. There were several incidents over the following month in which C was upset at school.
22. In mid-October, the school held a meeting with Ms B. It acknowledged that C was yet to receive his occupational or speech and language therapies. However, it said these would be available in early November.
23. At the end of October, C stopped going to school. And in November, Ms B said this was because of “extreme anxiety”. She asked the Council to arrange alternative provision to fill the gaps in C’s education. She said it would also need to deliver the provision in his EHC plan.
24. Ms B provided a GP report, which said she needed help to get C back into a school routine.
25. Ms B also provided an email from a paediatrician. However, this did not mention C’s anxiety or that he needed to be off school.
26. The Council met with C’s school and, after the meeting, told Ms B that it would not arrange alternative provision for C. It said his school could meet his needs, and there was no medical evidence that he could not attend.
27. Ms B was unhappy with this decision. She wrote back to the Council in December, and said:
• C was marked as absent from school because of ‘illness’, which met the threshold for alternative provision.
• His school records also confirmed that he suffered from anxiety and had been distressed at school.
• The school had confirmed that it could not deliver part of the provision in his EHC plan.
• He had not been receiving the therapy provision in his plan.
28. Ms B also provided a paediatrician’s letter to C’s school. The letter said, “Unfortunately, I cannot make recommendations about Emotionally Based School Avoidance or school placement because it is not in my capacity to do so”.
29. In January 2024, the Council met C’s school and reviewed its earlier decision. It noted that there was still no medical evidence to say he could not go to school. It decided, again, that the education offered by C’s school was accessible and suitable. It did not change its mind about offering alternative provision.
30. In March, the Council agreed that Ms B could home-school C, and he was removed from the school roll.

My findings

Alternative provision

31. The Council followed the right procedure after hearing about C not going to school. It looked at relevant medical evidence (including from C’s GP) and considered the availability and suitability of C’s school before reaching a decision. It also reviewed its decision after Ms B provided new evidence.
32. The Council’s decision – that there was no medical reason that C could not go to school – was not obviously out of step with the evidence I have seen.
33. Although Ms B provided evidence that C suffered from anxiety, I have seen nothing to suggest that – as a special school chosen precisely to meet C’s special educational needs – C’s school was obviously unprepared to deal with this.
34. Furthermore, a school’s administrative decision to mark an absent pupil as ‘ill’ is not, in itself, medical evidence.
35. Consequently, I have found no fault with how the Council dealt with C’s case.
36. I know Ms B feels the school was unsuitable, and also believes this was proven by the school’s own view – expressed informally in an internal email in July 2023 – that it could not deliver part of C’s EHC plan.
37. It is not for me to say whether the school was suitable or not. But the Council tells me that it would have ensured C received the right provision.
38. There was little chance for this to be tested before C stopped attending school, and he is now home-schooled, which means it is no longer a relevant issue. Consequently, I will not comment on it further.

EHC plan provision

39. For around a month after C’s EHC plan was issued in September 2023, he did not receive the therapy provision in the plan.
40. This was not a significant delay. However, the government guidance allows no implementation period in this situation (as it does in others), so the expectation is that provision is in place on the date an EHC plan is issued.
41. The Council was, then, at fault for the delay. And C suffered an injustice, because he missed out therapy which he needed.
42. Ms B has implied that C’s difficulties at school were, in part, because he was not receiving the right support. This is a perfectly plausible view (albeit one which cannot be tested because C stopped going to school once the right support was available).
43. The benefit of the missed therapy can no longer be recovered, particularly as C is now home-schooled. So the Council should make a small, symbolic remedy payment to Ms B to recognise C’s injustice.
44. After C stopped attending school, he continued not to receive any of the provision in his EHC plan. However, the provision was available at his school.
45. As I have already found no fault with the Council’s view that C’s school was accessible and suitable during this period, I have also found no fault with the availability of his EHC plan provision during the same period.

Back to top

Agreed action

46. Within a month, the Council has agreed to make a symbolic payment of £200 to Ms B, on behalf of C, to recognise that C missed out on support for his special educational needs for a month.
47. The Council will provide us with evidence it has made this payment.

Back to top

Final decision

48. The Council was not at fault for refusing to deliver alternative provision to C while he was out of school. However, there was a delay to some of his special educational needs support, for which the Council was at fault.

Back to top

Investigator's decision on behalf of the Ombudsman