Summary: Mrs X complained that the Council delayed in providing alternative education to her daughter and that, when it was provided, it was unsuitable. We find that there was fault by the Council on the first complaint and a lost opportunity on the second but with limited injustice. The Council has agreed to make symbolic payments for the loss of education and opportunity. The Council has already amended its alternative education policy for pupils medically unfit to attend school and has agreed to consider further service improvements.

The complaint

1. The complainant, Mrs X, alleged that the Council delayed in providing alternative education to her daughter (Y) when she was unable to attend her allocated school, and that the alternative education offered was unsuitable. This has meant that Mrs X has had to fund appropriate tuition for Y, Y has missed out on suitable education and the family has been caused avoidable distress.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
3. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. We also will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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).
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

9. I am investigating events from January 2024 when the Council first became aware of Y’s non-school attendance to October 2024, when the Council refused Mrs X’s request for an Education, Health and Care (EHC) Plan and she had a right of appeal to the SEND Tribunal.
10. In March 2024, the Council had also refused to undertake an EHC needs assessment, and the parents had a right of appeal to the SEND Tribunal. But they were waiting for medical evidence, and I consider there were reasons why they did not resort to this remedy at this stage. So, I have exercised discretion to investigate events, after this date, even though there was this SEND appeal right.

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How I considered this complaint

11. I spoke on the telephone to Mrs X and I considered evidence provided by her and by the Council as well as relevant law, policy and guidance, set out below.
12. I issued a draft decision statement to the Council and to Mrs X. Both provided further comments and evidence. Accordingly, I issued an amended draft decision statement to Mrs X and the Council. I have considered their further comments before reaching a final decision.

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What I found

Inability to attend education due to health needs

13. Under section 19 (s19) 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.
14. 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))
15. 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]).
16. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
17. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
18. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
19. The guidance also says that “there will be a range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the local authority [council], for example where the child can still attend school with some support”.
20. In the statutory guidance of December 2023, it states all medical evidence should be used to better understand the needs of the child and identify the provision.
21. Where specific medical evidence is not readily available, the child’s school or the council should liaise with other medical practitioners. The council should review all the evidence.
22. The concept of ‘otherwise’ is not defined in legislation and guidance. Commonly used definition is that pupils unable to attend school in any situation where it is not reasonably possible for a child to take advantage of existing suitable school. The acid test is whether the education offered is ‘available and accessible’.

The Ombudsman’s Focus Report: Out of School, out of mind?

23. In July 2022, the Ombudsman issued a Focus Report about children out of school. It was updated in August 2023.
24. We made a number of recommendations. Where a council arranges for a school or other body to carry out its functions, the council retains responsibility. Therefore, it must retain oversight and control.
25. In practice, we would expect to see councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented and communicated promptly to the parents.
26. Also, all cases of parttime education should be kept under review with a view to increasing it if a child’s capacity to learn increases.

The Council’s policy

27. The Council’s Attendance Support Teams hold regular meetings with schools and colleges. The Council has very detailed guidance for schools and colleges setting out what they should do when a pupil is absent from school. The Council also has an Attendance ‘duty helpline’ which schools can call to notify concerns and seek advice.
28. The Council’s policy states the Council has a duty to provide packages of education due to a medical need, focusing on school reintegration when:

• the pupil has missed 15 days in one school year and is recorded as medical absences;
• the pupil is in current receipt of a consultant led medical treatment plan or they have been assessed and are on a waiting list and a treatment plan. This does not include a care plan following a hospital visit or support for autism and Attention Deficient Hyperactivity Disorder (ADHD).

29. The referral route is via the allocated school/college.
30. For pupils without an EHC Plan, as is the case for Y, the Council expects schools/colleges to make referrals to its designated education providers. In this case, Y was offered a place at Provider D. The Council says that the criteria for a placement here is:

• medical evidence confirming the pupil is unable to attend school;
• a documented history of the attendance difficulties along with evidence of the reasonable adjustments provided;
• an additional needs support plan from the school, or healthcare plan.

31. The Council provides alternative education (Interim Provision Service) for pupils who have an EHC Plan through a range of approved providers.
32. The Council says that decisions are normally based on available school reports, medical information, parents’ views and other professionals involved with the child. There is no duty to seek an Educational Psychologist’s (EP’s) assessment prior to offering alternative education.

Special Educational Needs (SEN)

33. Parents/carers and schools can ask the council to carry out an EHC needs assessment (EHCNA).

Background facts

34. Y attended a mainstream secondary college, College B. Mrs X says that her attendance started to become poor during Year 8 and was made worse during the Covid-19 period. College B has an attendance officer which the Council says is employed by the College. Mrs X says that the attendance officer would email them to say Y’s absences were not authorised. But there was no other input from that officer.
35. The Council says that College B offered a number of interventions and strategies. Mrs X agrees but she says they were ineffective in getting Y into school.
36. Y was predicted to take several General Certificates of Secondary Education (GCSEs). However, by February 2023, (at the start of her GCSE syllabus), Mrs X says that Y stopped attending. College B did not authorise the absences or refer Y to the Council. Mrs X has complained to the Governing Body about this. The complaint was not upheld.
37. Mrs X has now referred this to the Department of Education (DfE) because she considers that College B was at fault for not referring Y sooner to the Council.

Details of this complaint

38. In January 2024, Mr X contacted the Council’s Inclusion helpline, the telephone number being available on the Council’s website. Mrs X says that he asked for an Education, Health and Care (EHC) needs assessment of Y and for the Council to provide alternative education under section 19.
39. The Council says that there was no request for an EHC needs assessment or alternative education from Mr X. But the Council accepts that this is the first time it became aware of Y’s non-school attendance, and it had to consider whether alternative education should be provided.
40. In early February 2024, Mrs X wrote asking the Council to carry out an EHC needs assessment and to provide alternative education. She explained that Y had not attended College B since February 2023 because “of high sensory needs that lead to ‘crippling anxiety’ which can result in panic attacks, total withdrawal and inability to engage/learn” Mrs X told the Council that Y’s anxiety began back in 2021 which was acknowledged by College B’s pastoral care team.
41. Mrs X explained that they had arranged some limited education from private tutors, and this was providing some success on a one-to-one basis. Mrs X explained that in 2022 the local Child and Adolescent Mental Health Service (CAMHS) had rejected a referral, but the parents now had a referral from a doctor to an ADHD/autism private provider.
42. Mrs X provided evidence from Y’s General Practitioner (GP), her therapeutic tutor and a Physiotherapist in support of her request for alternative education.
43. Mrs X stated that a reduced level of education would be in Y’s best interests because she had been out of school for a year and she would not be able to manage a sudden fulltime curriculum. Y also had high sensory needs and needed a calm environment with a trusted adult.
44. The Council acknowledged the request. In early February 2024, it emailed Mrs X, explaining its criteria for alternative education was that:
1. your child has missed 15 days in one school year and it is recorded in the attendance certificate as medical absence;
2. your child is in current receipt of a consultant-led medical treatment plan from CAMHS or they have been assessed and are on a waiting list for a treatment plan;
3. the referral route is via schools.
45. The Council stated that College B was responsible for making a referral and it suggested that Mrs X arranged a meeting at College B providing the necessary medical information. The Council refused the request for alternative education but stated it would review the situation in three months (April 2024) and that Mrs X could resubmit a further request.
46. Mrs X says that the Council did not send a medical consent form at this time. The Council accepts this. Mrs X is concerned that the Council did not consider all the necessary information, which she provided, or seek information from Y’s GP and College B, who had a lot of evidence of Y’s anxiety which was preventing her attendance.
47. In mid-March 2024, the Council refused the EHC needs assessment. The parents did not appeal to the SEND Tribunal at this stage because they were waiting assessment from CAMHS and had an initial appointment due for the end of the month. The parents thought it best to await this first before appealing. (I have decided that this is reasonable).
48. Mrs X complained to the Council about the lack of alternative education and refusal of an EHC needs assessment.
49. The Council says that College B approached Provider D seeking advice and were told that more information was necessary before College B could make a referral to it.
50. In April 2024, the Council told the parents that College B had not recorded Y’s absences as medically related and that it remained for College B to make the referral for alternative education.
51. In May 2024, the Council received information from CAMHS of ongoing treatment for Y. The Council reconsidered Y’s situation and it was agreed that there was now medical evidence to explain Y’s school absences. It emailed Mrs X to tell her that it accepted a section 19 duty and explained again that it was for College B to make the referral to its provider, Provider D. The Council explained that it had contacted College B to ask it to make the referral.
52. Provider D accepted Y met its criteria. The Council says that Provider D provides:

• support to schools to keep pupils with medical needs in education;
• bespoke support plans;
• regular multi-agency reviews;
• eLearning (online access to structured teacher-led instruction);
• small group or 1:1 teaching;
• short-term to help children reintegrate;
• home tuition (where medically required) for children too ill to leave home.

53. The Council says face to face home tuition may be considered as a short-term intervention to support reintegration. Alongside the welcome letter from Provider D, a medical consent form was sent to Mrs X. The Council says that this was not completed until September once a misunderstanding about the form had been resolved.
54. In June 2024, there were various discussions between Mrs X and Provider D. The Council says that Provider D offered a practitioner to visit Y at home in order to build up a relationship with Y as a starting point. But the parents were reluctant to accept this. Mrs X says that the practitioner was not a teacher so was unable to provide tuition. And Provider D was attempting to introduce unfamiliar practitioners into Y’s safe space and Provider D recognized this may be difficult.
55. The Council says that the family said that they wanted to continue with the private tutoring which they had arranged, and it was agreed that this would be possible. The Council says the emails to Mrs X from Provider D emphasised that they could work flexibly with the family, and at Y’s pace.
56. Mrs X says this is not the case. She says that she received an email from Provider D: “Understandably, [Y] will be more comfortable in the private arrangements you have made for her and a change of this plan will be upsetting”. Mrs X understood this to mean that Provider D had acknowledged that what it offered was unsuitable for Y.
57. In mid-June 2024, Y visited Provider D. The Council has not reported any difficulties with the visit. But Mrs X says that Y had a significant breakdown after this visit.
58. Mrs X says that it was clear Y would not be able to cope or feel safe at Provider D. She says that the Council failed to assess Y, including her school-related post-traumatic stress disorder, sensory issues and autistic and hyperactivity traits. It was also the case that Y’s long absence from school meant she had difficulty with integration and that it is known that, a longer a child is out of school, the more difficulty it is for them to reintegrate back into a school.
59. The parents considered they could not ‘force’ Y to go to Provider D. They say that CAMHS advised that it was inappropriate to do so. In July, the placement at Provider D was terminated as Y was not attending.
60. In August 2024, Mrs X asked the Council to pay for the private tuition because the parents could no longer afford this, but it was proving successful, and it would have been detrimental to stop it.
61. The Council refused on the basis that Provider D was available for Y. Mrs X complained to the Council.
62. Mrs X asked for Y to be referred to the Council’s Interim Provision Service. The Council refused this because the Interim Provision Service was only for pupils with an EHC plan and with no allocated school.
63. In early September 2024, there was a meeting attended by College B’s deputy Head, CAMHS and Mrs X. The Council says that CAMHS confirmed that Y did not have a formal diagnosis of post-traumatic stress disorder (PTSD) and that the family preference was for the Council to fund the private tuition. The Council says that in October 2024 CAMHS told the parents that Provider D was appropriate.
64. Mrs X says that, at the meeting in September 2024, CAMHS and a trauma nurse agreed that removing the private tuition from Y at such a critical stage could cause significant harm. Mrs X also says that the Council has commissioned the tutor previously for other pupils. So, she does not understand why the Council was unwilling to consider this option for Y and it was refused outright.
65. The Council says that CAMHS considered Provider D was a suitable placement. The CAMHS letter stated:

• ‘it could not comment on educational placement, (but) [Provider D] is an appropriate service that CAMHS often works with to support young people’.

66. The Council acknowledges that the letter does not formally endorse the provision. But this letter followed a multi-agency meeting and was directly related to Y’s educational support.
67. Mrs X says that the parents received an email in October 2024 from CAMHS that stated: “Based on my last peer support session with [Y], it was clear that she feels overwhelmed by the amount of professionals being called in to help her. I would advocate a more gently approach where [Y] can soften enough to work with challenges with a regular one to one practitioner”
68. In October 2024, the Council refused the request for an EHC needs assessment which triggered a right of appeal to the SEND Tribunal. Mrs X has appealed successfully. However, the Ombudsman is prevented from looking at related matters once the right of appeal is triggered.
69. This also means that I cannot take into account events and developments post October 2024.

The Council’s consideration of Mrs X’s complaint

70. Mrs X complained to the Council about the delay in providing alternative education.
71. In August 2024, the Council wrote: “according to statutory guidance, the local authority has a duty to arrange suitable education for children who cannot attend school due to health needs”. The letter goes on to say: “We recognise that our process in requiring evidence of CAMHS involvement caused delays in providing alternative educational support”.
72. The letter concluded that this element (delay in providing alternative education) of the complaint was upheld.

The Council’s response to our enquiries

73. In the response to our enquiries, the Council says that the above complaint was wrongly upheld. This decision was made on the basis that it was thought Y’s alternative education had not been reviewed. But it had in May 2024, and the Council had contacted College B asking it to make a referral to Provider D.
74. Moreover, while the Council acknowledged that the requirement for additional medical evidence from CAHMS contributed to some delays, this did not impact the overall decision. The Council says it has updated its medical needs policy in line with the Department of Education (DfE) December 2023 guidance.
75. The Council told us that it provides education options for pupils unable to attend school due to illness, exclusion or otherwise.

Findings-delay in providing alternative education

76. When, in January 2024, Mrs X asked for alternative education, she provided detailed information about Y’s difficulties in attending College B and some evidence from Y’s GP and two other professionals. By this stage, Y had been out of school for nearly one year at a key stage of her school career (her GCSEs).
77. The Council’s email to Mrs X (when it refused the request for alternative education) referred to its policy where a pupil had been out of school for 15 school days in a school year, specifying that the Council would only provide alternative education if the absences were medically related and there was evidence of medical intervention/assessment from CAMHS.
78. There was no reference in this letter to the fact that the Council should also consider other reasons for a pupil’s absence under the criteria ‘or otherwise’. I consider that the Council’s failure to refer to or consider its duty under the ‘otherwise’ criteria amounts to fault. It wrongly restricts the circumstances whereby the Council might have to provide alternative education or ask a school/College to do so, and it is not in keeping with the guidance.
79. I also consider that the Council’s then requirement for there to be medical evidence from CAMHS was not in keeping with the DfE guidance of 2023, which states that all medical evidence should be used to better understand the needs of the child. (The Council has updated its medical needs policy). That too is fault.
80. It is also not clear from the Council’s email refusing alternative education what evidence it did consider. In early 2024, the Council did not ask Mrs X to provide any further medical information (or send her a medical consent form), and it is not clear how the Council weighed in the balance the professional evidence which Mrs X had provided in her January 2024 letter. This is even though the Council recognises the importance of medical evidence to make informed decisions.
81. I consider that the Council was at fault for not exploring further the reasons for Y’s school absence, not seeking further medical information, for not dealing with Mrs X’s stated reasons why alternative education was required and for not explaining its decision in the light of all information.
82. In addition, the key question for the Council at this point was for it to ask: Is College B ‘available and accessible’ to Y. My view is that the Council failed to consider this properly, and that is fault.
83. The Council did accept it had a duty to provide alternative education in May 2024 when it reviewed the situation in light of information from CAMHS. It is likely that the Council could have reached the same decision in February 2024 but for the faults identified. And alternative education could have been provided from February to June 2024 (approximately three school months).
84. Accordingly, I consider that there has been a delay in agreeing the provision of alternative education and this has caused a loss of education for Y and avoidable distress to the family.

Finding: Unsuitability of the alternative education provided

85. The Council says that in June 2024 the parents expressed a clear preference for the private tuition to continue when they had meetings with Provider D. Mrs X says that this is not the case. They would have liked Y to attend Provider D because they were struggling with the cost of the private tutoring. But it was unsuitable.
86. The legislation and guidance require alternative education to be ‘suitable’ for the child and to be kept under review. It should be on par with other pupils in school while recognising that decisions about the amount of education should take account of the pupil’s difficulties.
87. It is for a council to determine suitability, and I remain of the view that there is no fault initially in the Council considering Provider D would be suitable, based on Y’s difficulties, because it offered a range of approaches to learning and Y could start there promptly. That was important given Y was in her GCSE years.
88. Once the Council knew Y was refusing to attend Provider D, whatever the reason, and the placement had been terminated, it needed to review the situation and the suitability of Provider D, as Mrs X requested. It is often unsuitable for a child in their GCSE years to wait more than a short time before they receive suitable education.
89. When Provider D terminated the placement for Y, the Council did then seek some information, and there were various meetings between the parents and the Council. The Council says that CAMHS approved the placement at Provider D, although not specifically stated in its October 2024 letter.
90. Mrs X explained that the private tutoring, which the parents were providing, was having some success and that it would be detrimental to remove this. And Mrs X explained, after Y’s June visit to Provider D, why this option was not appropriate.
91. Mrs X and the Council have both provided further evidence which supports their views. From Mrs X’s perspective, her main arguments are that Provider D could not accommodate the flexibility required to accommodate Y’s private tuition, that Y could not cope with a ‘new’ practitioner building up a supportive relationship with her, that the Council failed to assess her needs when maintaining that Provider D was suitable, despite knowing Y was not accessing this and elearning was inappropriate.
92. The Council’s view is that the family were always reluctant to give Provider D a ‘try’ because they wanted the private tuition to continue, and they wanted the Council to meet this cost, that Provider D did offer flexibility so the private tuition could have continued and CAMHS considered Provider D offered suitable support/education for pupils in Y’s circumstances.
93. But where there is agreement between Mrs X and the Council is that they both considered that the private tuition was working well for Y.
94. I cannot say what would have been suitable alternative education for Y. But, after the summer holidays, when it was clear Y was not attending or receiving education from Provider D, the Council could have at least considered whether it could meet its section 19 duties by meeting the cost of this private tuition. I cannot see evidence it did so or that its approach was sufficiently child focused, taking into account that Y was at an important stage of her school career.
95. I cannot say what the Council would have decided. But I consider there is a lost opportunity here and I consider that this is fault albeit the injustice is limited.

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Action

96. We have a wide statutory discretion in determining the nature and level of any remedy (ss. 30(1A) and 31(2B)-(2BA) of the Local Government Act 1974). In exercising that discretion, we apply our guidance on remedies most recently updated in July 2024.
97. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
98. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
99. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
100. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

101. Within one month of the final statement, the Council will:
1. apologise to Mrs X for the faults and injustice identified and make a symbolic payment of £500 for the avoidable distress. 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.
2. make a symbolic payment of £2,400 to Mrs X for Y’s lost education to be used for Y’s benefits. This is for three school months of lost alternative education between February to June 2024; and
3. make a payment of £250 for the lost opportunity, after the summer holidays, to consider whether Y’s private tuition would meet the Council’s s19 duties.
102. To the Council’s credit, it has already amended its alternative education for pupils with medical needs unable to attend school which also sets out that the s19 duty applies to all children not receiving education. The Council has introduced a s19 panel to provide oversight and consistency and has introduced new letter templates for officers to explain the rationale for its decisions.
103. Within three months of the final statement, the Council will consider adding the following service improvements:
1. officers obtain information from the allocated school when deciding on whether it should provide alternative education; and
2. send a medical consent form to parents/carers when requests for alternative education are made or when the Council is made aware that a pupil is out of school for medical reasons.
104. It will be for the Council to decide how to incorporate these recommendations into its policies and practice. But the Council should provide us with evidence it has complied with the above actions.

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Decision

105. I find fault causing injustice. The Council has agreed the remedy. Therefore, I am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman