Summary: Ms X complained the Council failed to ensure her child, Y, receives suitable education when they were unable to attend school for health reasons. I have found fault by the Council that caused Y to miss out on education and placed strain on the rest of the family who had to provide additional care during school hours. The Council has agreed to apologise, make a symbolic payment and implement service improvements.

The complaint

1. Ms X complains the Council failed to ensure her child, Y, received suitable fulltime education between Autumn 2022 and Summer 2024 when they were unable to attend the school where they were on roll.
2. Ms X says her child lost nearly two years of consistent education and this affected her confidence and emotional wellbeing. While her child is now in a specialist placement Ms X is funding private therapy to support her recovery.
3. Ms X say she had to leave her job and reduce business opportunities to care for her child fulltime. Ms X says they lost £10,000 of income and her child’s absence from education put a significant strain on the whole household.

Back to top

The Ombudsman’s role and powers

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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate:
• We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
• 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.
• 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)
6. 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.
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. I have exercised discretion to consider Ms X’s complaint from Autumn 2022. While this is over twelve months before Ms X brought her complaint to the Ombudsman, Ms X and her MP had been raising concerns from 2022. I note the Council’s responses did not address the Council’s legal duties and instead directed Ms X and her MP back to the school for a resolution, which created delay. There was also a period when the Council accepted a new school was required and was looking for a replacement. I consider it would not have been immediately obvious to Ms X this process would take so long.
9. I am satisfied Autumn 2022 is a logical start point for the investigation given it is when Y changed schools and circumstances significantly changed. The Council has also investigated this period in its own complaint process.
10. I have investigated up to Summer 2024 when Y started their new school. Any concerns after that date would need to be raised with the Council in the first instance and treated as a new complaint.
11. Ms X had rights of appeal which she has not used. We would have expected Ms X to have used her appeal right if she disagreed with the suitability of the school named in the Education, Health and Care (EHC) Plan. Suitability of placement is not a matter the Ombudsman can resolve, only a Council or Tribunal can make this judgment.
12. I am satisfied it was reasonable for Ms X not to appeal once the Council had agreed to find a new school.

Back to top

How I considered this complaint

13. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
14. I considered the Council’s policy for children with additional health needs unable to attend school.
15. I considered the Ombudsman’s published guidance on remedies.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
17. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Relevant law and statutory guidance

Alternative or s.19 education

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. The provision generally should be full-time unless it is not in the child’s interests due to health reasons. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. 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))
20. 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)
21. 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’)
22. 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)
23. 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.
24. 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.

EHC Plans

25. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.

26. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).
27. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.
28. There is a right of appeal to the Tribunal against the:

• 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;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment.

What happened

29. The Council issued Y with an Education, Health and Care (EHC) Plan in 2022 when they were in Year 6 attending a very small primary school.
30. Y moved to a large secondary school in September 2022, but transition was not successful.
31. In October 2022, following incidents with peers. Y stopped attending due to anxiety and alleged bullying. The school held an interim review of the EHC Plan recommending Y required a smaller provision.
32. The school notified the Council that Y was on a reduced timetable for mental health reasons. The school arranged Y would not attend school due to anxiety but would attend offsite provision (forest school) one day (5 hours) per week temporarily.
33. The Council’s decision after the review was to maintain the EHC Plan as currently. It found documents did not evidence a change of need. The Council’s panel did not consider a move to specialist provision was needed.
34. The Council told Ms X’s Member of Parliament (MP) the school should make a s.19 referral to see if any services can help Y with anxiety/trauma and get Y into a position to attend school.
35. The Council says the school contacted the inclusion team who advised Y would not meet the threshold for a medical tuition panel. After a further discussion the school was advised to do a communication and interaction referral and hold a further review. The Council says this referral was delayed as Ms X did not give consent.
36. The Council told me that the case never went to its s.19 panel. It told the MP the school remained responsible for Y’s education.
37. In December 2022 the alternative provision was reviewed by the school. Y was attending 4 hours at forest school one day per week with the aim to add 1 hour online tuition each afternoon.
38. In January 2023 Y was accessing forest school one day (4 hours) and had 1 hour per week online learning. By April 2023, this had increased to 4 hours forest school and 4 hours tuition. In May 2023 Ms X requested a mentor and intervention for emotional needs.
39. The school held a review meeting in June 2023. The Council told me after this funding of £8000 was allocated to support the school to fund alternative education. It told me this included onsite nurture and academic lessons, but the information in the review report states the provision was with external providers and Y had not attended onsite since October 2022. A target that Y would be settled into a new provision was made. It is not clear to me at what point the Council agreed Y would need to move placements.
40. The school notified the Council of a continued part-time timetable in Autumn 2023 for 16 hours, but Y was attending only two half days of forest school with no tuition. Ms X says the online learning failed as the nature of her child’s needs meant online tuition was not suitable.
41. Ms X attended mediation with the Council in Autumn 2023.
42. A further review meeting was held in December 2023; it was noted Y was not making progress and remained attending two half days of forest school only.
43. In February 2024 the Council issued an amended EHC Plan but it still named the current school, although the Council had agreed to look for an alternative. Ms X then had a new right of appeal, which she did not use.
44. Ms X complained to the Council in March 2024 it had not provided fulltime alternative provision for twenty months. Ms X says her child had no education for the first three months and then one-hour online learning which her child could not access. Later two days per week at alternative provision was arranged. Ms X says she had mediation with the Council in November 2023, but the Council did not send someone with authority to make decisions. The Council told her three special schools had replied to consults stating they could meet needs but when Ms X contacted the schools they disagreed with this view. The Council had agreed at mediation to increase alternative provision.
45. In Spring 2024 the Council responded to Ms X’s complaint about the lack of a decision maker at mediation, but the response did not reference s.19. The Council explained that temporary part-time timetables could be agreed between schools and parents in some circumstances and said this was a matter between her and the school. It said it had a statutory obligation to issue a final EHC Plan after review but that issuing the final plan in February naming the current school would not prevent it finding a solution for her child and consultations were ongoing. It confirmed the appeal process was open to Ms X.
46. Documents show in May 2024 there was an increase in Y’s timetable to three days (18 hours) due to ‘new funding’ being provided to school. Y then started their new school a month later. The increase in hours appears to be in part due to concerns that Ms X had to work while at home, and so Y was left to occupy herself for long periods of time during the day.

Council’s policy for children with additional health needs unable to attend school

47. The Council’s policy requires schools to notify it when a child has been absent for fifteen days or more because of additional health needs.
48. The policy says the Council keeps a weekly list of pupils whose education is disrupted by health needs and these will be reviewed by officers with remedial actions discussed with schools and if appropriate referred to a panel of senior officers to consider children missing education.
49. The policy says the Council discharges its s.19 duty by considering referrals at a weekly ‘s19’ meeting. This group decides what support is required either in school, or via alternative education.
50. The Council provides tiered levels of support:
• Tier one is a 6 week package and includes reintegration back into their school place.
• Tier two is a 12 week intervention that may include online or face to face tuition or attendance at a medical alternative provision.
• Tier three is a bespoke package where there is medical advice around the present need.

Each tier has the aim to reintegrate back into the existing school apart from in exceptional circumstances.

Analysis

Fault

51. The school notified the Council Y was unfit to attend school on medical grounds in Autumn 2022. The Council did not challenge this position as it advised the school to make a referral for s.19 education and, later, provided additional funding for s.19 education. It also took no action to enforce attendance.
52. The Council is correct to say that part-time timetables are permitted as part of short-term transition plans, but this was not the situation here. Y did not attend school from October 2022 until June 2024 and did not attend any reintegration sessions during this period. For the second year there was no intention to reintegrate Y as the Council was looking for an alternative school.
53. While statutory guidance ‘Arranging education for children who cannot attend school because of health needs’ says where possible health needs should be managed by the home school so the pupil can continue to be educated there with support, and without the need for intervention from the Council, it also says that as soon as it is clear a school can no longer support the child’s health needs the school should speak to the Council about putting alternative education in place.
54. The school contacted the Council in Autumn 2022 but was advised Y did not meet the criteria for medical tuition at that time. The school continued to provide copies of attendance data, part-time timetables and reviews advising the Council of continued absence and its view an alternative placement was needed. There is no documentation from the Council showing what it did with this information. This is fault.
55. Under the Council’s s.19 policy, as Y’s education was disrupted by health needs, Y should have been considered at the weekly ‘s.19 meeting’ and referred to the s.19 panel to consider if support was required in school or via alternative education. The Council told me Y’s case never went to its s.19 panel. This is fault and a breach of the Council’s own policy.
56. The Council can delegate funds to schools to source alternative education, but it cannot delegate the s.19 duty. Councils must satisfy themselves alternative education provided to a child unable to attend school is suitable for the age, aptitude and special educational needs of the pupil. It did not do so, this is fault.
57. The first part-time timetable provided by school to the Council indicated a period of offsite learning at forest school before attempting reintegration, including via support in the Council’s nurture unit. It would have been reasonable for the Council not to have intervened immediately to see if this plan was successful, but it should have kept the situation under review and intervened once it was clear Y was not successfully reintegrating into school. I am satisfied the Council should have carried out a s.19 review under its policy when the first part-time timetable between October and December was unsuccessful at achieving any reintegration into school.
58. The Council told me provision in the school’s nurture unit would meet the special educational provision in the EHC Plan (and discharge the Council’s duty under s.42 Children and Families Act 2014), however Y did not access the nurture unit. There is reference to this being available, but no evidence Y was well enough to attend it.

Injustice

59. Y attended forest school one or two days a week (this appears to be 4 hour sessions not full days) for a period of 20 months. Y also received 1 to 4 hours academic tuition in the first half of 2023, which then stopped. This is not equivalent to education Y would expect to receive in a school. This is fault and caused Y injustice through loss of education.
60. Y also missed out on much of the special educational provision in their EHC Plan during the 20 month period they were too unwell to attend school.
61. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision – full-time or part-time that was made during the period including special educational provision; and
• whether additional provision can now remedy some or all of the loss.
62. Where it is not clear what level of education a child with health needs could access, for example because there is no medical evidence stating what level of provision was appropriate or a child is not engaging with s.19 education available, then we may recommend a payment for distress or uncertainty (usually up to £1000) rather than a termly payment.
63. I am satisfied that it was not fault to trial a break from school followed by a reintegration plan between October and December 2022, and therefore there is no injustice arising from fault requiring a remedy for this period.
64. For the first two terms of 2023 some tuition was in place. It was not fault to decide to increase this gradually, however there is no evidence the Council had any oversight over the provision or that special educational provision was in place. While Ms X says online provision was not suitable, there is evidence it did increase between January and July, although still far below what would be expected in a school.
65. For the 2023/24 academic year Y received minimal education at forest school only until they started at their new school in late Summer.
66. As Y was at home fulltime this will inevitably have had an impact on Ms X’s own autonomy including her work opportunities and ability to earn money. However, the Ombudsman does not usually recommend remedies that reimburse loss of earnings. This is because we are unlikely to be able to reach conclusive findings (on the balance of probabilities) on such matters through our investigations. We cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. There are frequently other factors, personal circumstances and choices involved, including where a child with medical needs may have been absent from school even if there had been no fault.
67. It is not within the Ombudsman’s expertise to advise whether a child requires private therapy.

Agreed Action

Within four weeks of my final decision:

68. The Council will apologise to Ms X for the faults identified in this decision statement and acknowledge the injustice caused.
69. The Council will pay Ms X, on behalf of Y, £6500 to acknowledge Y’s loss of education calculated as follows:
• £1000 for the academic year 2022/3. This reflects some provision was being made and built up gradually but there is uncertainty whether additional input may have been available to Y had the Council followed its own policy.
• £5500 for 2023/4. This reflects Y received no academic tuition during this period and there was no expectation Y would return to the current school.
70. The Council will pay Ms X £1000 to acknowledge the separate injustice to her including her loss of autonomy due to the additional caring responsibilities because of Y being out of school and without suitable alternative support.
71. The Council has a s.19 policy and framework, but the policy was not followed in this case. There is also poor documentary evidence to show what the Council did with information it requires schools provide to it when children are missing school. The Council will reflect on why this happened in this case and provide the Ombudsman with a list of remedial actions it will take to ensure similar cases do not fall through the net and its policy is followed in future.
72. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

73. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman