Summary: Miss X complained the Council failed to provide her child, Y with a suitable full-time education since she was unable to attend school for medical reasons. We found fault by the Council because it did not properly consider its section 19 duty resulting in Y missing education she is entitled to. The Council agreed to apologise to Miss X and Y and make a payment in recognition of the injustice caused.

The complaint

1. Miss X complained the Council failed to provide her child Y, with suitable full-time education since she was unable to attend school for medical reasons in October 2022.
2. Miss X stated Y missed education she is entitled to, and her mental health declined.

Back to top

The Ombudsman’s role and powers

3. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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. 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.
6. 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)
7. 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)

Back to top

What I have and have not investigated

8. The Ombudsman expects a person to complain to them within 12 months of knowing something has happened which affects them. I have decided to exercise discretion and investigate matters dating back to October 2022. This is because Miss X has been engaging with the Council throughout this period.
9. I have not investigated matters which have happened since Miss X complained to the Ombudsman in May 2024.
10. I have not investigated Miss X’s concerns about the Council’s decision to refuse her request for an Education, Health and Care Plan needs assessment (EHCNA) for Y. This is because Miss X had a right of appeal to the SEND tribunal which she used.
11. I have not investigated Miss X’s concerns about the actions of Y’s schools. This is because of the restriction set out in paragraph 3.

Back to top

How I considered this complaint

12. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
13. I set out my initial thoughts on the complaint in a draft decision statement and invited Miss X and the Council to comment.

Back to top

What I found

14. 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.
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. 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.
17. 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))
18. 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”.
19. 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

20. 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))
21. 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)
22. 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’)

Ombudsman focus report

23. 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
24. 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.
25. 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.

Education Health and Care (EHC) plan needs assessment

26. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the Tribunal.

What happened

27. What follows is a summary of the key events. It does not show everything that happened.
28. In September 2022 Miss X’s child Y started the last year of junior school (School1).
29. In October Y stopped attending School 1 because she was too anxious to do so.
30. In December School 1 told Miss X that if Y was not back in school by later that month it would view her as a child missing in education.
31. Miss X asked the school for help. It said it could not provide homework for Y and that it did not have a budget for alternative provision. Instead it put her on a part time timetable with a view to integrating her back into school.
32. Meanwhile School 1 and Y’s doctor made a referral to the Children Adolescent Mental Health Service (CAMHS) but this was rejected. Miss X paid for a private clinical psychologist to work with Y as her mental health was deteriorating.
33. In March 2023 a referral was made to the Council’s Out Of School Tuition service (OOST) because Y was still not attending school. Y’s clinical psychologist said Miss X should stop trying to get Y to go into school and provided a letter saying she was medically unfit to attend due to her anxiety.
34. Y’s case was heard by the Council’s panel in April. It considered information from Y’s clinical psychologist, her school and her doctor who had made a new referral to CAMHS for Y. The panel decided to provide it’s OOST service to Y.
35. In May the Council wrote to Miss X explaining it had approved Y’s referral to OOST and a tutor would start working with her for five hours per week. The letter explained:
• Y’s school retains responsibility for her learning ; and
• Y’s school will need to work with her family, medical staff, OOST and other agencies to provide appropriate work and support Y’s integration back into school. Education Plan meetings will be held regularly for this purpose.

The letter did not clearly state the service would be for available to Y for a limited period.

36. In June Y’s OOST provision began. An Education Plan meeting held that month said Y was engaging well with the tuition, but she continued to struggle with her mental health.
37. In July Y’s clinical psychologist wrote another letter saying she was still medically unfit to attend school.
38. In September Y was due to start secondary school (School 2) but she was not well enough to do so. The OOST service received a referral from School 2, and it continued to provide its OOST service to Y, with the support of her school.
39. In November an Education Plan meeting took place. It stated there were concerns about Y’s anxiety levels. It said Y had not managed to visit her school. It said Y was receiving OOST tuition in the core subjects and School 2 was providing French work.
40. In January 2024 an Education Plan meeting took place. The minutes say Y’s anxiety was increasing. The minutes also say Y was continuing to receive OOST tuition in the core subjects but did not mention work being provided by School 2.
41. Also in January Y received a diagnosis of autism following a private assessment arranged by Miss X. Following the assessment Miss X asked the Council for Education Health and Care Needs Assessments (EHCNA) for Y.
42. In February the Council told Miss X the OOST service would be ending. It gave her four days’ notice. It told Miss X the OOST service was a short-term measure and now Y had a diagnosis of autism it was for her school to arrange suitable alternative provision. It also said Miss X did not provide medical evidence Y was unfit to attend school
43. Unhappy Miss X complained to the Council. She complained:
• the approaches of Y’s school have been unlawful and not within in contemporary guidelines.
• it took too long to get CAMHS help for Y.
• the OOST service ended with little warning
• the agencies involved in Y’s case have not worked together to meet her needs.
44. In early March the Council reinstated OOST for Y. It did so after receiving clarification that Y was on the CAMHS waiting list. Y’s tuition recommenced later that month.
45. In March the Council replied to Miss X’s complaint. It said:
• OOST is a temporary measure for those unable to attend school for medical reasons.
• Y was accepted to its OOST service following a referral from School 1, which was also supported by Y’s doctor making a referral to CAMHS. It also accepted the letter from Y’s private clinical psychologist because they worked for the NHS.
• School 2 made a referral to OOST because transition visits by Y to the school were not successful in reducing her anxiety.
• In December 2023 the Council wrote to Miss X saying the OOST service would end in February unless medical information was provided.
• In January and February 2024 the OOST service contacted School 2 to see if there was a medical reason for Y not attending. School 2 said it had asked Y to attend a consultation with its Educational Psychologist, but Miss X had refused.
• Y’s school is responsible for arranging provision for children with special educational needs. School 2 confirmed to the OOST service that it had plans to support Y to integrate back into school.
• It cannot consider concerns about Y’s schools.

The Council did not uphold her complaint.

46. In April the Council decided Y’s EHC needs assessment. It said it would not assess her. Miss X appealed to the SEND tribunal.
47. Also in April Miss X escalated her complaint to stage two of the Council’s complaints procedure. She complained that:
• nobody told her Y’s case had not been referred to CAMHS
• she was advised OOST was stopped because of Y’s autism diagnosis. There was no reintegration plan at this time and a meeting with Y’s school did not take place until 2 weeks after the OOST tuition stopped.
• she did not decline to meet with School 2’s Educational Psychologist. It was agreed that it would be counterproductive for Y, but it would be helpful when she is ready to move towards integrating back into school.
48. In May the Council replied to Miss X’s complaint. It said:
• OOST services were reinstated for Y in March.
• it used information from School 2 to inform its view that Miss X had refused a consultation with the school’s Educational Psychologist.
• a reintegration plan back into school is the responsibility of Y’s school.
• it accepted it could have communicated better with Miss X and said it was assumed School 2 had contacted her. It will make changes to its service to avoid a recurrence.
• it acknowledged Miss X had been caused unnecessary time and trouble because of its poor communication and it offered her £500 in recognition.
49. Unhappy Miss X complained to the Ombudsman.
50. In response to our enquires the Council said:
• it was unaware Y was not attending school until March 2023.
• its OOST service only provides 5 hours of one to one tuition per week. Independent work and school provision should make up the shortfall so 25 hours of education is provided.
• in June 2024 it decided, in response to Miss X’s appeal to the SEND tribunal to carry out an EHCNA for Y. If the assessment finds Y needs an EHC plan, then it will meet her needs. If not her education provisional falls outside the remit of the Council.

Finding

51. The law is clear that councils must provide alternative provision under Section 19 if no suitable educational provision has been made for a child who is missing education through exclusion, illness or otherwise.
52. When a child refuses to go to school because of anxiety, the Council needs to consider whether the education offered to the child is “reasonably available and accessible”.
53. The Council became aware on 21 March 2023 that Y was not attending school and so its section 19 duty became engaged from this point.
54. The section 19 duty requires the Council satisfy itself that Y was receiving a suitable education. The Council’s panel considered the referral made by School 1 and it decided to provide her with five hours of one-to-one tuition.
55. However I have seen no evidence demonstrating the Council considered what education Y could cope with and what School 1 was providing. The minutes of the Education Planning meeting held in June 2023 do not state School 1 was providing any substantive education for Y.
56. Furthermore the minutes of an Education Planning meeting held in November 2023 also state Y was only receiving French work from School 2. The minutes of the meeting held in January 2024 state no work was being provide by School 2.
57. I therefore conclude that Y was not receiving a full-time education despite there being no evidence she was unable to manage this. While I accept one to one tuition is more intensive, I do not consider five hours per week of such provision amounts to a full-time education. This is fault.
58. In February 2024 the council ended Y’s one to one tuition. It did so because it said there was no medical evidence Y could not attend school. I have seen nothing to suggest the Council made enquiries of the professionals working with Y but instead relied on information from School 2 alone. I note the Council reversed its decision when Miss X provided medical evidence. This is fault.
59. I would also have expected a decision to end the one-to-one tuition service would have considered Y’s current needs. There is no evidence it did so. Education Plan meeting minutes show Y’s anxiety was getting worse and so I am unsure how it concluded the service was no longer necessary and that Y would be able to engage with integration back into school.
60. I am also concerned the Council has argued that Y’s provision falls outside of its remit unless she is issued with an EHC Plan. A child does not need an ECH Plan for the Council to decide what alternative provision is suitable for them.

Agreed Action

61. Within one month of my decision the Council will:
• apologise to Miss X for failing to properly consider its section 19 duty to Y which led to her missing education. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• pay Miss X £3150 in recognition of Y’s missed education. This figure considers that Y received five hours of OOST tuition from June 2023 onwards and that the tuition was stopped temporarily in February 2024. It also recognises the period investigated covers Y’s transfer to secondary school and the impact of Y missing education during this important period.
62. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final Decision

63. I have completed my investigation and found fault with the Council. I consider the actions above are suitable remedy to the complaint.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman