Summary: Ms X complained the Council failed to provide her child with education when they did not attend school due to anxiety, from May 2023 to date. We cannot investigate the period after November 2023 when the Council issued an Education, Health and Care Plan which Ms X appealed. The loss of education is too closely linked to the matters subject to appeal. For the period May to November 2023, we have found no fault.

The complaint

1. Ms X complains the Council failed to provide her child with suitable fulltime education from 2023 until a Tribunal order was implemented in January 2025.
2. Ms X complains the Council placed responsibility for providing alternative provision in 2023-4 on the school and failed to step in when the school decided it could not meet needs.
3. As a result of the alleged fault Ms X says her child became isolated and reluctant to leave the house and their mental health deteriorated.
4. Ms X says she had to spend money providing educational and enriching activities at the same time she lost her income due to the additional caring responsibilities associated with her child being at home fulltime.
5. Ms X also raised concerns about how provision was implemented after the Tribunal decision.

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The Ombudsman’s role and powers

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. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
8. 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)
9. 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)
10. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
11. 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

12. I have not investigated events after a final Tribunal order in late 2024. This period has not yet been considered under the Council’s own complaint process, so it is premature for the Ombudsman to consider it. (Local Government Act 1974, section 26(5))
13. I have not investigated matters where a right of appeal has been used, or which would overlap with matters the Tribunal was asked to consider and would risk the Ombudsman trespassing onto the role of the Tribunal. (Local Government Act 1974, section 26(6)(a), as amended). This means the period from November 2023 to November 2024 is also outside our jurisdiction. I have explained this further below.
14. I have investigated the period May to November 2023.

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How I considered this complaint

15. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
16. 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

Key events

17. Ms X’s child, who has special educational needs (SEN) was attending mainstream school but began to become anxious about attending school in 2022. Attendance deteriorated in Spring 2023 and stopped in May 2023. An attempt to return to school in Autumn 2023, for Year 6, was unsuccessful, and attendance stopped again in October 2023.
18. The Council confirmed to me it was aware of attendance issues from May 2023. Its attendance officer was involved and gave advice to the school and family, including to submit a request for an Education, Health and Care (EHC) needs assessment and follow a gradual reintegration plan.
19. The attendance officer carried out three reviews between May and December 2023. In Autumn 2023, a gradual reintroduction was tried again. Attempts to re-engage Ms X’s child were not successful due to their level of anxiety. Attendance for the first half term was 57% but then Ms X’s child was absent fulltime. Ms X requested home tuition. The school agreed to make a referral for tuition and said the attendance officer had advised they should continue attempts at reintegration while waiting for the case to be heard at panel.
20. The Council carried out an EHC needs assessment and issued a first final EHC Plan in November 2023, naming the current mainstream school. Ms X appealed this decision. Ms X’s child did not return to school.
21. Ms X’s appeal to the Tribunal was against sections B (needs), F (provision) and I (setting) of the EHC Plan. Ms X said a mainstream school was not suitable and expressed a preference for an independent special school. Ms X’s grounds of appeal said her child was not able to perform basic daily functions or leave the home and would need ‘specialist therapeutic outreach support to be able to re-engage with education’. Ms X said her child wanted to go to their preferred choice of school which had a track record of re-engaging anxious pupils through its nurture programme.
22. The Council considered the case for home tuition at a panel in January 2024. The panel decided Ms X’s child did not meet the criteria. It suggested a referral to mental health services as well as other advice, but no tuition.
23. In January 2024 the school told the Council it could meet needs but not remotely, only if Ms X’s child attended in person.
24. In February 2024 a further EHC Plan was issued naming a mainstream secondary school as the next placement and continued to name the current mainstream primary school for the remainder of Year 6.
25. Following the panel’s decision a mediation meeting was held with the current school and led to further attempts to re-engage Ms X’s child via a weekly forest school session and through sending work home for completion. The attendance officer reviewed the case again in April.
26. In May 2024 the Council confirmed its decision that needs could be met in mainstream school had not changed. Ms X says while the school told her it believed it could meet need if her child attended, she was unable to get her child to attend due to their anxiety
27. In July 2024 the Tribunal part-heard the case and issued an interim decision the type of school should be changed from mainstream to special. The Tribunal adjourned a final decision to a second hearing. At this point the Council made a referral for tuition pending a special school place being found.
28. In August 2024 a special school confirmed it could offer a place. Ms X’s child started there in October after a short transition. Unfortunately, the placement subsequently broke down.
29. In November 2024 the Tribunal held a second hearing to conclude the matter. It was agreed by the parties that Ms X’s child was not able to access any school currently and the ‘placement’ should be Education Otherwise than at School (EOTAS). The Tribunal agreed with this decision and issued a final order in December. The placement at the special school ended in late February with EOTAS arranged.

Relevant law and guidance

School attendance

30. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school.
31. Where a child’s attendance at school drops below a certain level, it is likely a council’s Education Welfare Officer (EWO) will become involved after a referral from the school. EWOs 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.

Alternative provision

32. 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.
33. 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])
34. 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)

EHC Plans

35. A child or young person with special educational needs 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.
36. The EHC Plan is set out in sections which include: 

• Section B: Special educational needs.  
• Section F: The special educational provision needed by the child or the young person. 
• Section I: The name and/or type of educational placement 

37. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
38. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
39. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
40. 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.
41. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded. We would not usually look at the period while any changes to the EHC Plan are finalised, so long as the council follows the statutory timescales to make those amendments.
42. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example, alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the Tribunal; commonly this is where there it is evidenced and agreed that a child is medically unfit to attend any school.
43. 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 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). 

Education otherwise than at School (EOTAS)

44. Under s.61 Children and Families Act 2014 Councils can make provision for a child with an EHC Plan out of school but only if satisfied it would be inappropriate for the provision to be made in any school, not just a specific school.

Analysis

45. Ms X has used a right of appeal to the SEND Tribunal against the EHC Plan issued in November 2023. At that time the dispute was about the type of school. Ms X considered her child could attend an independent special school following a period of therapeutic outreach support to re-engage in education, and the Council’s view was her child’s needs could be met in mainstream. Subsequently the Tribunal made an interim order the Plan be amended to name a type of school (special) in July 2024 and Ms X’s child subsequently started at a special school in Autumn 2024.
46. Given these facts the Ombudsman cannot investigate the failure of the Council to provide s.19 education for the period of the appeal. We cannot investigate from November 2023, when Ms X received the decision that she subsequently appealed, until the appeal was concluded in November 2024.
47. The only situation when we can investigate is when a child is judged medically unfit to attend any school and we are therefore able to separate the loss of education from the dispute about suitability of a school or type of school. The appeal papers indicate that this was a dispute about the type of school that was suitable, and there was no decision made by the Council or Tribunal that Ms X’s child had medical needs preventing attendance at any school. This situation changed only in November 2024 after the special school placement had also failed.
48. I have not investigated the period after EOTAS was ordered by the Tribunal as I am not satisfied the Council has had an opportunity to consider a complaint.
49. The only period which it is within our jurisdiction to investigate is therefore the period from May to November 2023.
50. The Government has issued statutory guidance in this area including: Alternative Provision; Working together to improve school attendance; Summary of responsibilities where a mental health issue is affecting attendance; and, Arranging education for children who cannot attend school because of health needs. The Guidance says councils do not need to become involved in arrangements unless they have reason to believe that education provided by the school is unsuitable. The courts have made clear that decisions whether to provide alternative education are for councils. The Guidance includes examples of use of gradual reintegration plans and monitoring by attendance officers / EWO’s.
51. The evidence shows the Council’s attendance officer was involved on three occasions during this period, which spanned the school summer holidays. There were two attempts at reintegration into school either side of the school holidays. Attendance in the first half of the Autumn term was 57% which indicates there was some increase in attendance from May.
52. The Ombudsman would not criticise the decision by the Council to trial a short break from education in May and then a gradual reintegration programme, or to trial this again after the Summer break. This is consistent with statutory guidance. The Ombudsman expects councils to keep provision under regular review. This happened in this case for the period we can investigate (up to November 2023 only).

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Decision

For the period the Ombudsman can investigate, May to November 2023, I have found no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman