Summary: Ms X complains the Council failed to provide alternative education to Y under s.19 Education Act when she was too unwell to attend school. The Council considered Y was fit to take advantage of the education made available to her by her school and that this was suitable. The Ombudsman cannot question this professional judgment by the Council. There was therefore no obligation on the Council to offer an alternative and no fault in failing to do so. The complaint is not upheld.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains on her own behalf and on behalf of her daughter, who I shall refer to as Y. Ms X complains the Council has failed to provide alternative education and special educational provision in an education, health and care (EHC) plan in the following periods:
• Alternative education under s.19 Education Act 1996 when Y was unable to attend school between February 2020 and October 2020.
• Alternative education under s.19 Education Act and special educational provision under s.42 Children and Families Act between October 2020 and November 2021 (except for sixteen days in November 2020 when Y attended School B).
• Alternative education (s.19) or special educational provision (s.42) from November 2021 onwards.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
8. 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.
9. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
10. 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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How I considered this complaint

11. I have considered information provided by the Council and Ms X including:
• Documents about Y’s special educational needs including her EHC plans
• Early Help documents
• Complaint correspondence
• Tribunal documents
• Judicial review proceedings
• Correspondence between Ms X, the Council and education providers.
12. I have also spoken to Ms X by telephone.
13. I have considered relevant law and statutory guidance including:
• Children Act 1989
• Children and Families Act 2014
• Education Act 1996
• Statutory Guidance ‘Ensuring a good education for children who cannot attend school because of health needs’.
14. I have considered the Ombudsman’s Focus Report ‘Out of School…out of mind? How Councils can do more to give children out of school a good education’.
15. I have considered the Council’s policy for children with medical needs who cannot attend school.
16. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Alternative education provision

17. 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.
18. ‘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))
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. Councils are not bound to follow medical advice unless it would be irrational not to do so. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
20. Statutory guidance says there will be a wide range of circumstances where a child will receive a suitable education without the intervention of the Council – for example where the child can still attend school with some support or where the school has made arrangements to deliver education outside of school. The guidance says ‘we would not expect the local authority to become involved…unless it has reason to think that the education being provided…was not suitable, or while otherwise suitable, was not full-time or the number of hours the child could benefit from without adversely affecting their health. This might be the case where…the child can attend school but only intermittently’.
21. The guidance says there is no specific point in law when the Council becomes responsible for a child with health needs, but councils should provide education once it is clear the child will be away for fifteen days or more, whether consecutive or cumulative. Councils should liaise with the appropriate medical professionals to ensure minimal delay in arranging provision for the child.

Special educational needs (SEN)

22. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections which include:
• Section B: The child or young person’s 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 school. 
23. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
24. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
25. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan we cannot seek a remedy for lack of education after the date the appeal right arose if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).

COVID-19

26. On 20 March 2020 all schools closed except for key worker children or children deemed ‘vulnerable’
27. The Government issued guidance about ‘vulnerable’ children in March 2020. It said these included children with a social worker or EHC plan. The guidance said a child ‘may’ also be deemed to be vulnerable if they have been assessed as being in need or otherwise meet the definition in section 17 Children Act 1989. All disabled children are considered children in need under s.17.
28. The guidance said those with an EHC plan should be risk assessed by their school in consultation with the Council and parents to decide if they should be offered a school place to meet their needs, or whether they can safely have their needs met at home. The guidance said ‘we know that schools…may also want to support other children who are vulnerable where they are able to do so’.
29. Where a child was under assessment for an EHC plan the guidance said they would not necessarily fall within the definition of ‘vulnerable’ children, however the school and council ‘have discretion to undertake a risk assessment and offer support’.

What happened

30. Y had attended a mainstream primary school (School A) for several years. In the Autumn term of 2019, she had 95% attendance. This dropped in Spring 2020 to 79%. This is stated to be due to Y’s anxiety about attending school.
31. Ms X says Y had been absent for fifteen days by 28 February 2020. My understanding is this was not continuous absence, but intermittent.
32. Ms X requested Y’s Education, Health and Care (EHC) needs be assessed by the Council on 6 March 2020, shortly after Y received a dyslexia diagnosis. The Council refused an assessment as, although Y had SEN, it said her needs could be met through the resources of her school without an EHC plan.
33. On 20 March 2020, schools closed due to COVID-19. School A provided remote learning to all its pupils, including Y. The Council says this was differentiated for Y’s SEN. This is also documented in early help meetings in May and June 2020.
34. Ms X obtained private assessments in April 2020 which led to Y being diagnosed with two additional conditions that can affect learning. Ms X reapplied for an EHC needs assessment. The Council refused for the same reason as before.
35. Ms X had a right of appeal against this decision which she used. The Council conceded the appeal and agreed to carry out an EHC needs assessment in mid-July 2020. The Council decided it was necessary to issue an EHC plan for Y. It agreed to consult schools with smaller class groups.
36. In May 2020 School A actioned an early help assessment and meeting. Y had received several diagnoses in quick succession and was struggling to engage with remote learning. The assessment considered the whole family context. An action plan was developed with the outcome set that Y’s anxiety around school would decrease and parents and school would work in partnership with effective communication. The plan said School A would obtain educational psychology advice, and the Council’s specialist teacher service would become involved. A second early help meeting was held in June to review progress.
37. From 1 June 2020 schools were encouraged to widen the group of children who could attend in person during COVID-19. Vulnerable children were expected to attend unless they were clinically vulnerable, or the family were ‘shielding’. Parents were not penalised if children did not attend. The Council says Y was offered a place in school, via a reintegration plan, as although Y did not have an EHC plan, School A had concerns about her engagement with remote education.
38. In June 2020 a clinical psychologist wrote a letter setting out Ms X’s view that Y was too anxious to attend school. Y was waiting for mental health support at that time.
39. In early July 2020 Y’s General Practitioner (GP) provided a letter stating Ms X’s view was that Y’s anxiety was preventing her attending school and Ms X’s view was that Y should receive home tuition until she was placed in a school appropriate for her needs. This was before the Council agreed to assess Y for an EHC plan.
40. The Council told me it did not regard either of these letters as amounting to a clinical assessment Y was medically unfit to attend school. The Council considered clinicians repeated what Ms X’s views were but did not make any recommendations of their own about school attendance.
41. In mid-October 2020 the Council issued a final EHC plan naming School B. School B is an independent mainstream school with small classes and SEN expertise. Ms X gained a right of appeal about the content of the Plan which she has used. The appeal was concluded in November 2021.
42. Y attended School B for only sixteen days. Ms X says Y was unable to attend due to anxiety. The Council says no medical advice to support this was provided. It says School B considered it could meet Y’s needs, that Y had settled in well and School B offered remote learning and a reintegration plan. The Council says Ms X’s view was that School B was not suitable and Ms X appealed for an independent special school.
43. The Council says meetings were arranged with Ms X and School B, but Ms X did not attend. It says Ms X’s representative asked in January 2021 for Y to receive home tuition.
44. In February 2021, when it was clear Y was not going to return to school before the appeal was heard, the Council offered to provide Y with tuition and activities outside of school. The Council says there was a delay putting this in place. In its complaint response the Council said it could have agreed to alternative education via a personal budget earlier. It offered a financial payment to remedy this.
45. In November 2021 the Tribunal directed changes to the EHC plan. Y’s placement was changed to Education Otherwise than at School (EOTAS) with provision to be made via a personal budget for tuition, activities and equipment. Ms X has issued judicial review proceedings because she says the Council has not implemented the November 2021 plan and is not providing Y with suitable education.

Jurisdiction - what I have investigated

46. Ms X had a right of appeal to the SEND Tribunal about the content of the final EHC plan issued on 16 October 2020 which she has used. The Ombudsman cannot investigate where someone has used an alternative remedy, such as to a Tribunal, about the same matter. There is no discretion in this situation, it is an absolute bar on us investigating. (Local Government Act 1974, section 26(6), as amended)
47. The Court in R (on the application of ER) v the Commissioner for Local Administration, 2014 confirmed that we cannot investigate a decision which has been appealed to the SEND Tribunal, and we also cannot consider the consequences of that decision. This means that where a pupil does not attend the school named on their EHC plan because their parent considers the school is unsuitable, and a council does not provide alternative educational provision (s.19), the Ombudsman cannot investigate any failure to provide s.19 education if the parent has made an appeal to the Tribunal about the school’s suitability. The Court said in ER that the decision (to name a school parents consider ‘unsuitable’) and the consequence (that the child does not attend the school and missed education) were ‘inextricably linked’ and outside our jurisdiction.
48. We can investigate where we can separate the loss of education from the matters being appealed. This may arise where a child was deemed medically unfit to attend any school during the appeal period (that is their absence was unrelated to the suitability of the school).
49. Here the evidence shows Y’s absence, and the suitability of School B, were ‘inextricably linked’. The Council considered School B suitable. Ms X disagreed. The Council considered Y did not have health needs that prevented her attending given the adjustments School B was willing to make. It did not consider there was medical opinion that supported Y was unable to attend a school because of health needs. School B withdrew the place because of a breakdown in its relationship with parents, not because it considered it could not meet needs.
50. For the reasons given above I cannot investigate the period from 16 October 2020, when Ms X obtained a right of appeal, until November 2021 when the appeal was completed. The loss of education during this period was due to the dispute about the suitability of School B, which is the same matter the SEND Tribunal has considered. As Ms X has used an alternative remedy, I cannot investigate the same matter.
51. The lack of an available financial remedy from a court or tribunal also does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (R v the Commissioner for Local Administration ex parte PH, 1999)
52. The fact the Council has chosen to offer a financial remedy for part of this period does not alter that we are legally barred from considering this period.
53. I also cannot investigate the period after November 2021. Ms X has issued judicial proceedings about loss of education and special educational provision for this period. As Ms X has used an alternative remedy to the courts, we are barred from considering the same matter.
54. Limits on our jurisdiction mean the only part of Ms X’s complaint I can consider is the period prior to the issue of the EHC plan in mid-October 2020.

Analysis

55. Between February and October 2020, Y did not have an EHC plan. It was therefore expected that her needs would be met at SEN support level by her school without the intervention of the Council.
56. We cannot investigate the actions of schools.
57. The Council would be expected to intervene under s.19 Education Act to provide alternative education only if it considered:
• There were medical grounds for Y’s absence, and
• the School was not providing suitable education or, education was not full-time or for the number of hours Y could benefit from without adversely affecting her health.
58. Ms X says Y had been absent for fifteen days (cumulatively) by 28 February 2020. Attendance data confirms attendance dropped after January 2020.
59. The law does not say councils must provide s.19 education after fifteen days of medical illness. The guidance says generally councils should be ready to take responsibility for a child whose illness ‘will prevent them from attending school for 15 or more school days…over the course of a school year where suitable education is not otherwise being arranged’.
60. In Y’s case the pattern of illness was not predictable. I have not seen evidence the Council was aware of Y’s illness or the level of absence in March 2020. If it was, the Council should have sought medical evidence about her future attendance to establish if she was eligible for medical tuition and asked the school what provision it was able to make. It is not certain that s.19 education would have been needed, this would have depended on Y’s predicted level of attendance and what provision or adjustments the school could offer.
61. There is not enough evidence for me to say it was fault by the Council that Y was not provided with medical tuition before 20 March. There is no medical evidence to support Y was too unwell to attend school.
62. After 20 March face to face tuition would have stopped in any event due to COVID-19 restrictions. There was no need for the Council to provide Y with remote learning to Y after 20 March because this was being provided to all pupils by the school.
63. Y did not have an EHC plan or social worker, so it was appropriate for the school to do the COVID-19 risk assessment. When Y did not engage with remote learning, an early help process was begun to consider reintegration and she was offered a place in school.
64. The Council says when it received medical evidence in Summer 2020, it did not give this much weight as it just summarised Ms X’s views, clinicians did not give their own advice.
65. It was a professional judgment for the Council whether Y was medically unfit to attend school and what weight to give this evidence. The Council says it was not satisfied Y was medically unfit to attend school. The Ombudsman cannot question the merits of this decision. (Local Government Act 1974, section 34(3), as amended) As the Council was satisfied Y could attend school, and a place was available to her, there was no requirement for the Council to provide alternative education. My understanding is that Y’s school place remained available to her until her new school was named in the EHC plan. I cannot therefore say that Y missed out on education due to fault by the Council.

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Final decision

66. I have completed my investigation. The evidence does not support that there was a duty on the Council to provide Y with alternative education between March 2020 and October 2020. The Council considered Y was medically fit to take advantage of the education made available to her by her school, that this was suitable, and there was no need for it to intervene under its s.19 duty. The Ombudsman cannot question this professional judgement by the Council. The complaint is not upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman