Summary: Mrs X complained the Council refused to provide alternative provision for her child, who has not accessed full-time education since September 2023. We did not find fault in the Council’s decision-making.

The complaint

1. Mrs X complained the Council refused to provide alternative provision for her child, who has not accessed full-time education since September 2023 because of their autism, attention deficit hyperactivity disorder (ADHD), and anxiety.
2. Mrs X said her child missed about a year of education. They attended school for only one morning a week with a specialist teacher, but could not go into class.
3. Mrs X said her child cannot cope in the classroom as there are too many students. This was acknowledged by professionals working with her child, but Mrs X said the Council did not recognise this. Mrs X did some home schooling herself and arranged a tutor one hour a week, which she pays for.
4. The Council has now issued an Education, Health and Care (EHC) plan for Mrs X’s child. As part of this process, her child’s school told the Council it is unable to meet their needs.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I investigated the Council’s consideration of the request for alternative provision. I did not investigate the suitability of Mrs X’s child’s school or the Council’s decision to name the school in her child’s EHC plan. Mrs X can appeal this decision to the Tribunal.

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How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Mrs X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. 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

Alternative Provision

11. 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.
12. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
13. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
14. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
15. 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)
16. 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 medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
17. 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.
18. We made six recommendations. Councils should:
• Consider the individual circumstances of each case and be aware that it 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.

The Council’s educational support

19. The Council has a Communication, Learning and Autism Support Service (CLASS) offering support, advice and training to schools. It works with other services to support children and young people to access full-time education. 
20. The Council also has an Early Help Keywork Service which supports families with complex needs. A keyworker will build a relationship with the family and create an action plan to help achieve positive change.
21. The Council’s Teaching and Learning Provision service provides education support for children who cannot attend school full-time because of illness, physical health, or mental health.
22. Its services include:
• Meetings with the child’s school to plan their return to school.
• One to one teaching at home for children with physical illnesses.
• Online lessons for Key Stage three and four children.
• E-learning services for schools to buy as part of a child’s re-integration into school.

Special Educational Needs

23. A child or young person with special educational needs (SEN) may have an Education, Health and Care (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. 

What happened

24. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
25. Mrs X’s child, who I will call Y, started to become dysregulated throughout the school day in Year 4. Y became reliant on time out of class talking with a teaching assistant (TA) and had anxiety around school attendance.
26. The school agreed measures to support Y for the start of Year 5 in September 2023, including a reduced timetable where Y would attend school Monday to Thursday, and only in the morning.
27. The Council agreed to assess Y for an EHC plan in September 2023.
28. Mrs X contacted the Council in October 2023, because Y was not coping at school on the reduced timetable. The Council told Mrs X to ask for a meeting with school and discuss how Y’s needs can be met.
29. Mrs X requested alternative provision from the Council on 27 October.
30. The Council telephoned Mrs X about the alternative provision request in November 2023. It said Y’s school needed to make a referral to its Teaching and Learning Provision (TLP) if Y meets the criteria.
31. The Council referred Mrs X’s alternative provision request to its Locality Multi-service Group panel (the panel) for a decision. The referral form states Y’s school attendance was 50%. However, because the school was recording absences as either being educated off site or illness, the actual figure for days of school attended was said to be much lower. It confirms the strategies currently put in place by the school include:
• A reduced timetable consisting of Monday to Thursday mornings only.
• Learning breaks.
• A dedicated adult to speak about feelings.
• A sensory map.
• Work sent home.
• An additional needs plan.
32. It was recorded these strategies seemed to work at first, but the problem was getting Y to attend school in the first place. It was also recorded the school had now made referrals to CLASS and TLP for support.
33. The panel decision states, because of Y’s attendance level, the school should make a referral for an Early Help Keyworker, and the school should signpost Mrs X to support outside school.
34. The Council wrote to Mrs X on 29 November 2023 confirming it did not agree her request for alternative provision. It said the evidence suggested more can be done in partnership with the school to support Y to access the current provision. This included using support through Early Help services. The Council planned to contact Y’s school about other support available, and about an Early Help Keyworker. It also planned to review the situation in three months.
35. The Council emailed Y’s school advising it to make a referral for an Early Help Keyworker. It also suggested a pupil advice meeting with a CLASS link advisor.
36. Y’s school made a referral to the Council’s Early Help Keywork Service. However, this was declined as Y’s attendance level was too high. The school also made a referral to CLASS.
37. Mrs X complained to the Council in January 2024. She said Y attended school for less than two hours a week for one-to-one support with a specialist teacher. She said, while waiting for the Council’s decision about an EHC plan, she applied for alternative provision, but the Council rejected this as it said the school should provide work. She said the legal duty rests with the Council, not the school. Her complaint was the Council failed to provide education for Y. She said without funding the school could not provide further support as Y can only work one to one, and the school have no available staff. She said the school tried to refer Y for help. CLASS will not help because Y is not in school. The Emotionally Based School Avoidance toolkit advice was to get Y back into school without acceptable adjustments. And the Early Help Keywork Service rejected Y for a keyworker. Mrs X provided a report from a psychotherapist and an autism specialist working with Y who she said confirm Y is struggling and needs more help.
38. CLASS and the school’s SEN coordinator discussed Y’s case at a pupil advice meeting in February 2024. They sent an action plan to Y’s school. This included activities to support Y recognising signs of anxiety, targets on time without a key adult, and using strategies to help manage Y’s anxiety.
39. The Council reviewed Mrs X’s alternative provision request on 8 February 2024. It noted CLASS were offering advice and guidance. It therefore decided to continue to refuse alternative provision. It sent an email to Mrs X confirming this. It said the evidence continues to suggest more can be done in partnership with school to support Y to access the current provision. It said it discussed strategies with Y’s school, its CLASS team is working with the school, and the school will rerefer Y to Early Help now they meet the criteria.
40. The Council also sent its stage one complaint response on 8 February. It said most children with SEN can be supported in mainstream school. Barriers change over time, and, with the right support, they can achieve their outcomes. It discussed the alternative provision request at its Locality Multi-Service Group panel. The panel felt, as there had been no involvement from services before, there was more the school could do to support Y to access current provision. A three-month review was underway, and it will speak to the school about more support going forward.
41. The Council said every school has a CLASS link advisor offering support and guidance for pupils with SEN. The CLASS advisor can identify strategies to support the pupil and create an action plan. Due to Y’s low attendance, it would not have been suitable or possible to carry out the in depth work a referral involves. The Council therefore advised the school to make a referral to the Early Help Keywork Service. When the school made the referral to Early Help, Y’s attendance was too high to be eligible, but it will contact the school about making a new referral.
42. The school’s SEN coordinator gave their professional view to the Council as part of the EHC assessment process. This states Y’s time in school has dramatically reduced, only attending on a Wednesday morning when an autism advisory teacher can work with Y one-to-one. Y completes Maths work during collective worship time when the class is empty. Y then works outside the classroom and is currently working on the Emotionally Based School Avoidance toolkit. Y then completes sensory circuits before going home. Y has made progress, but it has been slow, with small steps to feel comfortable in school again.
43. The Council held a meeting with Mrs X and Y’s school on 11 March 2024. The school said it tried everything. However, the Council said the school had not made a new referral to its Early Help Keywork Service or taken up support offered by its attendance support team.
44. Y’s school made a new referral for an Early Help keyworker on 12 March 2024.
45. The Council wrote to Mrs X on 15 April 2024, confirming it would issue an EHC plan for Y to help meet their SEN.
46. The Early Help Keyworker service assigned Y’s case to a keyworker on 21 May 2022. The keyworker visited Y’s parents and spoke to Y’s school before completing an Early Help Plan in July.
47. The Early Help assessment says Y’s school raised concerns because Y’s attendance was 36.6%. Y only attended on a Wednesday morning with support from the school autism teacher, outside of class. A learning plan was provided for Y, which was reviewed in January and February 2024, and recently. CLASS advised the school to use the emotionally based school avoidance toolkit.
48. The Early Help assessment confirms Y’s provision included a plan with the class teacher to support Y in the classroom one to one, plus support on mornings Y attends from a qualified autism teacher. The school tried group work, but this was unsuccessful as Y shut down and did not want to attend. The school’s aim to increase Y’s time in school were unsuccessful. Y had a limited but agreed education within school for one half day a week, as this was when the school could provide an autism teacher outside the classroom. Y’s attendance was now at 28%.
49. The Council issued Y’s final amended EHC plan on 23 July 2024, naming Y’s mainstream school. This was despite the school saying it did not have the resources to meet Y’s needs. Y’s school said it would need to recruit someone to provide full time one-to-one support, which was not financially possible.
50. The Council agreed to give Y’s school exceptional extra funding to enable it to provide the support detailed in Y’s EHC plan. The Council said its expectation was for the school to reduce Y’s dependence on high levels of adult support over the coming twelve months while implementing the EHC provision and development of independent skills.

My investigation

51. Mrs X told me Y has been without proper education since September 2023, missing nearly all Year 5. She said the Council has not provided any alternative provision.
52. Mrs X explained problems built up slowly. Y had a bad finish to Year 4 and then burnt out at the start of Year 5.
53. Mrs X has been paying for home tutoring one hour a week since about February or March 2024. She also pays for a cooking class once a week.
54. Y attends school on Wednesday mornings. The school brought in a specialist as Y needed one to one support. He could not do group work or classroom learning.
55. Mrs X believes that, because Y attends school for three hours a week, the Council hopes they can build this up. Mrs X thinks this is why the Council refused alternative provision. However, Mrs X said this will not work, and the professionals involved in Y’s case confirmed this.
56. The Council told me it responded to Mrs X’s section 19 request in line with legislation. It determined the school could support Y to attend. It gave the school guidance on support and re-integration.
57. The Council said its attendance support team helped the school with strategies for Y’s attendance. This included:
• Looking at Y’s additional needs and learning plan.
• A dedicated adult to speak to about feelings.
• A sensory map.
• Work sent home.
• Small group sessions.
• A reduced timetable.
• Emotionally based school avoidance resources.
58. The Council held a three-month review, but decided it was too early to measure the impact of strategies in Y’s Pupil Action Plan.
59. The Council said Y’s current Early Help Keywork attendance plan has been in place since July 2024 and needs time to embed.
60. The Council also said to remove all school attendance and put alternative provision in place will not allow this work to happen and will not address the barriers to Y’s attendance.
61. The Council considers this support is essential to enable Y to attend any school setting. It also considers by supporting Y to increase their attendance and engagement it will achieve the best outcomes long-term.
62. The Council said Mrs X chose to use private tutoring during while the reduced timetable was in place because they were concerned about increasing Y’s time in school. But the Council considers increased time in school was available to Y.
63. The Council also said Y’s EHC plan enables the school to put in place the required provision to meet their needs.

Analysis

64. At the point of Mrs X’s request for alternative provision in October 2023, Y was already on a reduced timetable. However, I found Y’s school had not made successful referrals to the Council’s TLP, CLASS, or the Early Help Keywork Service at that time.
65. On that basis, there was no fault in the Council’s decision to say there was more support available to try to help Y access school provision.
66. When the Council reviewed its decision in February 2024, its Early Help Keyworker Service had rejected Y’s school’s first referral. However, Y’s declining attendance meant they did now qualify for keyworker support. The school had also started to receive guidance from CLASS, including a pupil action plan, and there was more support available the school had not accessed so far.
67. Again, the Council was therefore not at fault in saying there were more support options to explore, and in saying support strategies needed time to work. I therefore cannot criticise its decision to continue not to agree alternative provision at that stage.
68. I fully appreciate Mrs X disagreed with the Council’s decisions and considered trying to re-integrate Y would not work. However, it is for the Council to decide when to provide alternative provision, not the Ombudsman. I did not find fault or a lack of proper consideration in the Council’s decision-making process.
69. The Early Help Keywork Service later assigned a keyworker, and there was an action plan in place from CLASS. Y’s attendance had not improved, and the school considered there was nothing more it could do, especially after a specialist autism TA left.
70. However, circumstances changed because the Council then issued Y’s final amended EHC plan. I cannot comment on the Council’s decision to name Y’s mainstream school, but it agreed to provide the school with funding above the normal rate to ensure it could offer the provision in Y’s EHC plan.
71. Now the EHC plan is in place, the school has additional funding to support Y and meet their SEN. I understand Mrs X wanted Y to attend a special school, but that is a decision for the Council, or the Tribunal if Mrs X appeals. If support from the school is still not working, and the school cannot give Y the provision detailed in their EHC plan, Mrs X can ask the Council to review the situation.

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Final decision

72. I completed my investigation. I did not find fault in the Council’s decision-making.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman