Summary: Ms X complained the Council failed to provide alternative provision for her son, S, after she told the Council he was unable to attend school. She said S has missed education and socialising with his friends. This has caused S and his family distress. The Ombudsman has found the Council at fault for failing to manage and review S’s situation.

The complaint

1. Ms X complained the Council failed to provide alternative provision for her son, S, after she told the Council in August 2023 he was unable to attend school. She said S has missed education and socialising with his friends. This has caused S and his family distress. Ms X would like the Council to apologise and make a financial remedy for S’s missed education. She would also like the Council to ensure this does not happen to other families.

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The Ombudsman’s role and powers

2. 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.
3. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
4. 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)
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 investigated the period from August 2023, when Ms X told the Council S was not attending school, until the beginning of April 2024 when the Council issued its complaint response. Anything after this date would be part of a new complaint and premature.
7. Complaints about the EHC Plan itself, should be referred to the SEND Tribunal, this is outside the Ombudsman’s jurisdiction.

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How I considered this complaint

8. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Education Act 1996, Children, Schools and Families Act 2010.
• Statutory guidance: ‘Summary of responsibilities where a mental health issue is affecting attendance’, ‘Working together to improve school attendance’, and ‘Arranging education for children who cannot attend school because of health needs’.
9. Ms X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant legislation

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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
11. 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)
12. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
13. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
14. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that 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, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
15. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.

Suitable education

16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
17. 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)
18. 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’)

Health needs

19. 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])
20. In guidance ‘Summary of responsibilities where a mental health issue is affecting attendance’ and ‘Working together to improve school attendance’ the Government says professionals should provide cross-agency support through a team around the family to alleviate a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness that is mental health related. Schools should inform the Council where pupils are likely to miss more than fifteen days. Councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education.

Ombudsman focus report

21. 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. Out of school, out of sight? published July 2022
22. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council 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.

23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

Part-time timetables

24. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
25. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

The Council’s policy and procedures

26. In response to my enquiries, the Council provided several versions of its section 19 policy and guidance for staff when they receive a request for alternative provision.
27. In the May 2023 edition, the policy and guidance are different depending on the reason for the request.
28. For requests for alternative provision by reason of illness, the Council decides if the duty applies after considering medical evidence. The Council discharges its duty through the ISEND Teaching and Learning Provision (TLP).
29. For requests for alternative provision by reason of otherwise for children and young people without an EHC Plan, the Council may discharge its duty under section 19 through the ISEND Education Support Services which includes the Education Behaviour and Attendance Service (ESBAS), and the Communication Learning and Autism Support Service (CLASS). These services work with the education setting, child and their family to assess underlying needs and recommend reasonable adjustments and provision to meet those needs.
30. When the Council receives a request for alternative provision, there are three possible outcomes:
• The request is agreed and alternative provision is arranged.
• The request is not agreed. The Council considers from the evidence the child can be supported to receive a suitable education in their education setting.
• The request is to be discussed at Inclusion Multi-Agency Resource Panel which will determine is the child can be supported to receive suitable education or whether alternative arrangements are needed.
31. The Council must communicate the decision with the requestor in writing and update them within ten days. For requests that were not agreed, a manager should check the case three months later to see if the child is attending school. They will decide if the child can be supported to receive suitable education or whether alternative arrangements need to be made.

What happened

32. I have summarised below the key events; this is not intended to be a detailed account.
33. Ms X says S was out of school full time from the middle of June 2023. Before this time, he was attending School on a reduced timetable.
34. Ms X emailed the Council in early August, during the school holidays, and explained S could not attend school because of Emotionally Based School Avoidance (EBSA). She sought an Education, Health and Care Needs Assessment.
35. S’s father, Mr X, emailed the Council again at the beginning of September and explained S was still not attending school. In response to my enquiries, the Council said it considered its section 19 duties were engaged from this point.
36. At the beginning of September, the Communication Learning and Autism Support Service (CLASS) engaged with the School and the family to assess S. CLASS recommended reasonable adjustments which it considered should be effective in helping S access education. The adjustments were communicated with the School and family.
37. The Council made a follow-up call with the school in late September. The School confirmed it was carrying out the recommended adjustments.
38. In early October, the Council reviewed the situation. S’s attendance had not improved. The Council recommended the School refer to CLASS for enhanced guidance. The School did not refer to CLASS.
39. At the October review, the Council should have scheduled a formal three-month review to take place in January 2024 to consider the extra support C may have needed to support his education. The review did not take place.
40. In early January 2024, the School sent a referral to the Council’s Teaching and Learning Provision (TLP) service explaining S could not attend School.
41. The Council considered if alternative provision was required by reason of illness. As there was no evidence of ongoing medical need, it rejected the referral.
42. The Council provided further advice and recommendations to the School at the end of January. In response to my enquiries, the Council said it should have escalated S’s case for further consideration of whether alternative provision was required but this did not happen.
43. At the end of February 2024, the Council issued a draft EHC Plan.
44. At the end of March, the Council issued a final EHC Plan.

Complaint to the Council

45. Ms X complained to the Council in the middle of March 2024.
46. The Council issued a complaint response at the beginning of April.
47. The complaint response explained the Council has a statutory duty to provide education for children who are too ill to attend school under section 19 of the Education Act. The Council provides this through TLP. It said the following criteria must be met for TLP to accept a referral:
• A medical need is the primary need.
• The child has been absent from school for more than 15 days.
• Evidence of a current consultant-led treatment plan for a medical need.
• The school has produced an Additional Needs Plan (ANP) which contains school-based reasonable adjustments.
48. The Council explained TLP rejected the referral because it did not contain an ANP and there was no evidence of a current consultant-led medical treatment plan. The letter said it had reviewed the complaint which it did not uphold.

Analysis

49. The section 19 duty was activated when the Council knew S was not attending school, during term time. Ms X asked for an EHCNA in August 2023, but at this time, S was on school holidays. He was therefore not missing education. Mr X contacted the Council in September, during term time. The Council used this as the first date it was aware S was not attending school. I agree this is the date the section 19 duty was engaged.

Medical evidence

50. The Councils complaint response dated April 2024 explains why it rejected the Schools application to TLP in January 2024. It said S did not meet the criteria for support under the service’s remit as there was no evidence of consultant led medical treatment plan or an ANP. The updated statutory guidance and caselaw says Councils need to consider s.19 education even when there is no medical evidence readily available such as that from a consultant. The Councils rejection of the application based on a medical needs criteria is fault.
51. In response to my enquiries, the Council accepts it should have considered the need for support for reasons of otherwise and escalate the case for further consideration if alternative provision was required.

Reasonable adjustments, the Schools actions and the Council’s oversight

52. CLASS became involved from the beginning of the new term starting in September 2023. It worked with the School, S and family to suggest reasonable adjustments and strategies to support S and improve his attendance. The Council followed this up a couple of weeks later and the School confirmed it was making the recommended adjustments. The Council put strategies in place to support S at this stage, it is not at fault.
53. At the October review, it was noted the adjustments had not been successful as S’s attendance had not improved. At this stage, the Council advised the School to refer back to CLASS for enhanced guidance. The School did not make the referral. While this is a failing of the School, the Council remains responsible for providing education for S. It should have done more at this stage. In its response to my enquiries, the Council accepted it should have ‘been more thorough in holding the school to account… we have not had sufficient management oversight of the issues in this case.’ The Council is at fault for failing to manage S’s case. This led to the failure to provide enhanced guidance following the October review.

Three-month review

54. The Council’s policy says it will conduct a three-month review where requests for alternative provision have been declined, to ensure the child is attending school. The Council should have scheduled a review in January 2024. It failed to do this. This is fault.
55. If the review had taken place, the Council would have known the recommended adjustments had not worked and S had not attended school from the start of the academic year.
56. In response to my enquiries, the Council said the three-month review would have ensured there was a multi-agency discussion of S, promoting a more holistic view of the situation.

Summary of fault causing injustice

57. The Council is at fault for referring primarily to medical needs when deciding if alternative provision is required, failing to have oversight of the case, and failing to conduct a three-month review.
58. This meant the School did not receive enhanced guidance to support S following the review in October 2023, neither did it receive further interventions in January 2024. This meant S missed out on education and socialising with his peers.

Action already taken by the Council

59. In response to my enquiries, the Council acknowledged that while it made efforts to support S’s education through advice and recommending reasonable adjustments, it should have had better management of the case to ensure the right support was in place. In correspondence with the Ombudsman, the Council recognises the impact this has on S and his family and apologises for the distress caused.
60. The Council explained it has already updated its section 19 policy to strengthen the guidance around the importance of the three-month review and holistic decision making. It also said it has considered the updated statutory guidance and amended its policy and guidance.

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Agreed action

61. In addition to the action already taken by the Council, within four weeks of the final decision, the Council agreed to:
• Apologise to Ms X and family and pay them £500 for the distress and uncertainty caused by failing to manage this case appropriately and keep it under review.
• Pay Ms X a symbolic remedy of £2,000 for S’s missed education from October 2023 (the date of the review after which the Council failed to manage the case) to April 2024 (the date of Ms X’s complaint).
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. I have completed my investigation. The Council is at fault for failing to manage and review S’s situation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman