Summary: Ms X complained the Council failed to provide alternative provision for her son when his educational placement broke down. She is also concerned about the Educational Psychologist report, the Councils requests for medical evidence and its failure to consider her complaint at stage two. The Council is at fault for failing to offer a stage two investigation. This has caused Ms X distress for which I have recommended a remedy.

The complaint

1. Ms X complained the Council has failed to provide an alternative provision for her Son, S, since his educational placement broke down in March 2024. She said the Council ignored her request to support the provision which she had self-funded. She is also concerned the Educational Psychologist (EP) report does not follow the regulations, the Council has made unreasonable requests for extra medical evidence and failed to address her concerns at stage two of the complaints process. Ms X says this has caused her to son to miss out on education and caused the family emotional and financial distress.

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The Ombudsman’s role and powers

2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. 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)
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 only investigated Ms X’s complaint about the Council failing to provide her child with section 19 provision. I have not investigated the Education, Health and Care (EHC) Assessment or Plan. This is because Ms X has a right of appeal to the Special Educational Needs (SEN) Tribunal. The Ombudsman does not have jurisdiction over matters linked to the appeal. This means I cannot investigate Ms X’s complaint about the contents of the Educational Psychologist (EP) report. As this formed part of the EHC Plan, Ms X can challenge this through the Tribunal.
7. There is only a small timeframe which I can investigate. This is from when Ms X says the Council did not provide suitable alternative provision at the end of March 2024, until the time Ms X complained, which was late July 2024. Information outside of this timeframe is provided for background and context only.

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant legislation

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. [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.
11. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
12. 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)
13. 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.
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”.
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’)
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])

The Councils complaint process

20. The Council has a three-part complaint process.
21. The first stage is service resolution which sits outside the formal complaints process. If the Council cannot resolve the concerns, it will discuss this with the individual and progress to the formal complaints process if appropriate.
22. The first stage of the formal complaint process. The Council aims to complete the response within ten working days but can extend this to 20 working days if needed.
23. The second stage of the formal complaint process asks the complainant to provide new evidence about the complaint or the reason they believe the Council did not follow the first investigation procedure correctly. Alternatively, the Council will ask the complainant to go directly to the Ombudsman.

What happened

24. I have summarised below the key events; this is not intended to be a detailed account.
25. Ms X said S was unable to attend mainstream school from June 2022.
26. In July 2022, Ms X asked the Council to complete an Education, Health and Care Needs Assessment. The Council decided not to assess S in September. Ms X appealed. The Tribunal directed the Council to assess S in February 2023.
27. In November 2023, the Council agreed a section 19 package. The package included one day a week at an outdoor education centre and four hours a week one to one tuition in Maths and English at a tutor organisation.
28. In February 2024, both alternative provision providers gave positive feedback to S’s School. They said S was engaging well and he was building confidence.
29. In March, the tutor organisation said it considered S was ready to have sessions moved to School to start reintegration.
30. The Easter holidays were for two weeks at the end of March. S was unwell the first tutor session of the new term but attended the following two sessions. He did not attend the tutor session at the end of April due to anxiety.
31. At the end of April, Ms X emailed the School and the Council and said S’s mental health had deteriorated and he was struggling to attend his tutor sessions. She raised concerns with his provision and said she thought the sessions were not suitable for S. Ms X asked if tutor sessions could be provided at home, as suggested by S’s tutor.
32. At the beginning of May, S’s tutor emailed Ms X and said he thought S “…could not cope in a fast moving/learning, busy, noisy environment, even with 1-1 and would almost certainly refuse to attend to avoid anxiety and frustration.” He also said after speaking with S about returning to school, “…it was clear that he would hate this…”. Ms X emailed the School and Council and asked them to refer to the tutor organisation who would update them as to S’s experience during the sessions.
33. The School planned to hold a multi-agency meeting (MAM) to explore a reintegration plan for S. It wrote to S’s parents and invited them and professionals to a meeting in the middle of May. The parents responded and asked the following questions:
• What is the purpose of the meeting? The parents said they were still waiting for the Occupational Therapist report to progress the EHC Plan.
• The parents said the tutoring organisation was unsuitable and triggered S’s anxiety.
• The parents were waiting for a meeting with CAMHS and wanted to wait for that.

Ms X told me she did not get a response to the above questions. The parents were not able to attend the meeting due to work commitments. The meeting went ahead with representatives from the School, both alternative education providers and the Council. They agreed the alternative provision was appropriate, proportionate and reasonable and recommended it was extended.

34. At the end of May, Ms X emailed the School and the Council saying the alternative provision was not suitable for S and he was not attending the tutor sessions. She explained why she considered it was not suitable for S. Ms X said she did not receive a response addressing her concerns.
35. At the beginning of June, S stopped attending the outdoor education centre.
36. At the beginning of June, the School met with the Council senior education effectiveness officer. They decided the alternative provision was appropriate and the Council agreed to fund it until the end of the summer term. The group also noted S was not accessing the provision. They said there was no medical evidence to support S’s absence. Following the meeting, the Council wrote to S’s parents about the appropriateness of the section 19 provision and explained S’s absences would be unauthorised unless Ms X provided medical evidence. The Council said it did not receive any medical evidence. The School also wrote to S’s parents and said it considered the provision is appropriate and expected S to engage. Failure to do so would result in it considering S’s case under the attendance policy.
37. At the end of June, the School decided to pursue the matter as an attendance issue.
38. At the end of July, the Special Education Needs Panel agreed to 15.5 units for mainstream to support reintegration, this was to be reviewed after the autumn term.

The complaint

39. Ms X complained to the Council in July. There were four parts to her complaint:
• Alternative provision under section 19 was not suitable and S could not attend.
• The Council ignored requests for a different alternative provision.
• The Council failed to consider concerns about reports used in the EHC process.
• The Council repeated its request for medical evidence.
40. The Council issued a response in August. It said:
• Alternative provision was in place, the providers gave positive feedback and the professionals considered it was appropriate. It did not uphold this part of the complaint.
• As the alternative provision was considered appropriate, proportionate and acceptable, it expected S to attend. It did not uphold this part of the complaint.
• The complaint response made no finding about the reports and suggested Ms X seeks advice and complains to the Health and Care Professions Council.
• The complaint response disagreed with Ms X and said the Council requests medical evidence from all families to ensure fairness across the county.
41. Ms X asked the Council for a stage two investigation at the beginning of September. In her letter, Ms X agreed the director of the tutoring organisation reported good engagement with S. She also said the director may have been unaware of concerns and referred to the above referenced email from S’s tutor which contradicted the opinion of the director.
42. The Council refused to do a review and said Ms X did not provide any new evidence.
43. Ms X complained to the Ombudsman in October. As well as the above parts of her complaint, she also complained the Council did not complete a stage two investigation.

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Analysis

The section 19 duty

44. The Council has a duty to provide alternative provision to children who will otherwise not receive suitable education. In January 2024, the Council agreed to provide a package of alternative provision. This was for four hours one to one provision in Maths and English at a tutoring provider and one day a week at an outdoor education centre. The Council provided alternative provision for S. It is not at fault.
45. In February and March, the alternative education providers gave positive reports to the School and Council about S. They said he was engaging well and was building his confidence. There was regular correspondence between the providers and the School and Council as it monitored the provision. The professionals were satisfied the provision was working suitably. The Council is not at fault.
46. As the professionals considered the provision was positive for S, the Council agreed funding for another half term with the view to reintegrating S into School. The Council continued to monitor the provision and as it was considered positive and, agreed for it to continue. Alternative provision was considered appropriate and was provided. The Council is not at fault.
47. S stopped attending the tutoring provision in late April and Ms X told the Council. From this point, the Council was aware S was not receiving his tutoring provision I would expect it to check the provision is still suitable and appropriate for S. The Council arranged a multi-agency meeting with professionals and parents in the middle of May to discuss. The professionals met, discussed and agreed the provision was appropriate, proportionate and reasonable and agreed it should continue. The Council sought advice from the professionals within roughly two weeks of being told S was not attending the alternative provision before deciding what action to take. The Council is not at fault.
48. The Council met again in June to discuss and again agreed the provision was appropriate but unfortunately not being accessed. The Council are not at fault as it sought advice from professionals and made a new decision the provision was still appropriate, proportionate and accessible. It followed this up in writing to S’s parents and explained its decision. The Council agreed the funding for the alternative provision until the end of the summer term, it expected S to attend.
49. Ms X complains the Council did not provide suitable alternative provision for her son. I do not find this to be the case. The Council provided alternative provision at first which S engaged with. The Council reviewed the provision when it found out S was not attending, discussed with professionals and made a new decision the provision was suitable and notified S’s parents. It is the Council’s decision whether a child can attend educational provision, after taking account of all the relevant evidence. The Council met with professionals to discuss, before making these decisions. It is not at fault.

Request for medical evidence

50. The Council must consider all the evidence before it decides if it considers a child can attend an educational provision. The Council asked Ms X to provide medical evidence as part of this, when she said S could not attend the alternative provision. It was up to the Council to decide what weight to give to this evidence, should Ms X have provided it. This was part of the Council collecting evidence on which to decide if S's health needs preventing him from attending the provision.
51. Ms X complained the Council repeated previous requests for medical evidence. While I can understand Ms X’s frustration of having to provide information again, the previous medical evidence she provided was a year earlier and the situation had changed during that time. I do not consider the Council was wrong to ask for this information, as it is important it keeps up to date with any developments of S’s condition. The medical evidence would have formed part of the evidence base on which the Council made its decision. This is a reasonable request. I do not find the Council at fault.

The complaint

52. The Councils complaint procedure requires a complainant to provide new evidence before it will complete a formal stage two investigation. The Council considered Ms X’s request for a stage two investigation and said there was no new evidence presented. It therefore declined to complete a stage two investigation and signposted Ms X to the Ombudsman. The Council failed to consider in Ms X’s request for a stage two investigation, that she referred to the email referenced above in paragraph 32 from S’s tutor in which they said S “…could not cope…” returning to a busy school environment which she said contradicts the opinion of the director who attended the meeting.
53. I consider this is new information which should have triggered a stage two investigation. The Council should have considered this further, its failure to do so is fault. This has caused Ms X distress as she does not know what the result would have been, had the Council considered this information. It is clear the Council met with professionals before deciding the educational provision was suitable for S. The tutors that worked with S had a different opinion; this is new information which the Council had not had opportunity to consider. Had the Council considered this and completed a stage two investigation, on the balance of probabilities I consider it may have responded to Ms X’s complaint differently.

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Action

54. Within four weeks of the final decision, I recommend the Council:
• Apologises to Ms X and pays her £300 the distress caused by failing to consider the new evidence she submitted with her request for a stage two investigation.
• Write to Ms X and ask if she would like the Council to consider the new evidence as a stage two complaint. Allow Ms X four weeks to respond.
55. The Council should provide us with evidence it has complied with the above actions.

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Decision

56. I find fault causing injustice. I have suggested actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman