Summary: Ms X complained about the Council’s failure to provide her child, Y, with a suitable education when he was unable to attend school. We did not find the Council was at fault because it was satisfied with action taken by the school to reintegrate Y back to school during the time we were able to investigate. We did not investigate what happened from April 2024 because Ms X appealed to the SEND Tribunal.

The complaint

1. Ms X complains that the Council failed to provide alternative educational provision for her son, Y, when he was unable to attend school from September 2023.
2. This had a negative impact on Y’s educational progress and overall well-being. Ms X also suffering significant distress and frustration because she had to give up work to support Y.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (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 cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
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)

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What I have and have not investigated

8. Paragraphs 12 to 15 apply to this complaint. I have investigated Ms X’s complaint about lack of educational provision from September 2023 to March 2024. The latter date is when the Council issued Y’s EHC Plan that gave rise to Ms X’s appeal rights. Ms X appealed to the SEN Tribunal about the content of the plan, including the name of the placement.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. 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

Special educational needs

Education, Health and Care Plans

11. 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.

SEND Tribunal and appeal rights

12. There is a right of appeal to the SEND Tribunal against the special educational provision specified, the school or placement or that no school or other placement is specified.
13. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the SEND Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin)
14. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person.

Children out of school and alternative provision

16. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can use various legal powers where it considers a child’s non-attendance to be unauthorised, including prosecution or issuing a fine.
17. Where a child’s attendance at school drops below a certain level, it is likely a council’s inclusion officer will become involved after a referral from the school. Inclusion officers have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
18. 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.
19. The courts have considered the circumstances where the section 19 duty applies. Case law 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 them to access. The applicable test is whether the educational provision the council has offered is “available and accessible to the child” (R (on the application of DS) v Wolverhampton City Council 2017).
20. 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 to medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
21. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

22. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
23. Ms X’s son, Y, has SEN and is of primary school age. In September 2023, he transferred from infant to junior school (School P).
24. Y found this transition overwhelming and stopped attending on a full-time basis from September 2023. His anxiety about attending school became overwhelming. His overall attendance during the autumn term was 11%.
25. School P advised Ms X to apply for an EHC Plan in November 2023. School P also alerted the Council’s inclusion service of Y’s poor attendance.
26. Working together with Ms X, School P put in place an integration plan, with a view to increasing Y’s attendance over time, with additional support including online provision. This was discussed with the Council’s inclusion service.
27. This proved unsuccessful, with Y only managing to attend one and a half hours per week.
28. A final EHC Plan was issued in late March 2024 naming School P as the specified placement. Shortly afterwards, Ms X lodged an appeal with the SEND Tribunal about this decision.
29. Ms X then complained about the Council’s failure to provide Y with a suitable, full-time education since September 2023. In response, the Council told Ms X there was no medical evidence to trigger the section 19 duty.
30. Ms X challenged this decision. She explained that Y’s GP, did not, as a matter of general principle provide “sick notes” for children. However, there was overwhelming evidence submitted with Y’s ECH Plan application that Y was unable to attend school for illness or “other reasons”.
31. The Council’s final complaint response confirmed its previous position that the inclusion service was satisfied that School P had taken appropriate action by working with Ms X and Y to gradually reintegrate Y back into the classroom, but this had to be gradual process so as not to overwhelm him.

Analysis

32. For the reasons I have explained above, I am unable to investigate (or consider remedying any resulting injustice) for Y’s lack of education or SEN support between from April 2024 onwards because it is inseparable from Ms X’s appeal to the SEND Tribunal.
33. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
34. However, just because a child does not attend school does not necessarily mean the Council has a duty to make alternative, full-time arrangements.
35. It is not in dispute that Y had minimal education between September 2023 and March 2024. But I am unable to says this was because of fault by the Council.
36. School P did not inform the Council about Y’s attendance until November 2023. I cannot hold the Council responsible for a situation it was not aware of. Once the inclusion service became involved, prompt discussions took place with School P, Ms X and Y. Ms X was asked to comment on the current situation as part of the EHC Plan process. In response she said Y was on a reduced timetable with a view to moving schools and the EHC Plan would steer appropriate support. She was also waiting a place at online school and Y was due to start therapy in January 2024.
37. Based on the evidence I have seen, I do not consider the Council’s section 19 duties were triggered before April 2024. A reintegration plan was in place and Y was attending school, albeit very occasionally. This plan included the measures we would expect to see, and it was reasonable to allow some time for this to be effective.
38. I understand Ms X was frustrated and disappointed by the Council’s decision to name School P in Y’s EHC Plan. Once it became evident School P was unable to meet his needs, Y then spent a lengthy period of time out of education that clearly had a negative impact on both Ms X and Y. However, for the reasons I have explained, I am not able to consider what happened then.
39. But for period of time I was able to investigate, I am satisfied there was no fault by the Council.

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Final decision

40. I have completed my investigation having found the Council not to be at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman