Summary: Mrs D complained the Council failed to provide her son with a suitable alternative provision when he could not attend his schools. We found the Council at fault for failing to properly consider and provide alternative provision. The Council agreed to apologise and make payment to Mrs D to acknowledge the distress and loss of education and special educational needs provision its faults caused.

The complaint

1. The complainant, whom I shall refer to as Mrs D, complained about the Council’s handling of her son’s education when his attendance at school was low. She said the Council:
• was aware her son was not able to access his education in school from September 2020 to July 2022 but failed to provide a suitable alternative provision for him; and
• failed to provide her son with his special educational needs provision set out in his Education, Health and Care Plan (EHC Plan) from September 2021 to July 2022.
2. As a result, Mrs D said her son experienced distress, a loss of education and special education needs provision at an important time before he transitioned to secondary school.
3. Mrs D also said she experienced distress, had a loss of income due to reducing her work to support her son, and had educational costs to provide an education for her son.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal, or has already appealed, 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 appeal. (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 SEND Tribunal in this decision statement.
7. 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)
8. 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)
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

10. As part of my investigation, I have:
• considered Mrs D’s complaint and the Council’s responses;
• discussed the complaint with Mrs D and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law and guidance to the complaint.
11. Mrs D 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

12. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
13. 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”.
14. 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)
15. 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’)
16. There will be a wide range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the Local Authority – for example, where the child can still attend school with some support; where the school has made arrangements to deliver suitable education outside of school for the child; or where arrangements have been made for the child to be educated in a hospital by an on-site hospital school. We would not expect the Local Authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Council Policy

17. The Council’s Policy ‘Access to education for children and young people with medical needs’ says, in circumstances where a child cannot attend school because of health needs, it is a child’s allocated school’s responsibility to ensure the child receives a suitable education which meets their needs without the intervention from the Council. It expects a school to:
• work with the child and the family;
• work with support services to coordinate multi agency planning and a Team Around the Family (TAF) assessment;
• obtain medical evidence from medical professionals, which cannot be from a GP alone; and
• use specific forms to make a referral to the Council’s Education Access Team if a school is concerned a child is likely to be without access to education for more than 15 school days.
18. If the Council refuses a referral, its Policy says parents should liaise with the school regarding arrangement to support education of their child.
19. If the Council accepts a school’s referral it will allocate a case manager with the aim of arranging education as soon as possible. The manager will work with the parents and arrange a multi-agency planning meeting to decide the most appropriate education provision for the child and assist with reintegration to school. The Council has an arrangement with a specific school which provides alternative provision.
20. The Council expects parents to ensure their child attends suitable education provision whether this is provided by the Council or school.

What happened

21. Mrs D’s son (child X) had attended the same primary school (School Y) since reception year. She said his experience and self-esteem had gradually worsened, which had caused him some distress.
22. In 2020, following the national lockdown due to the COVID-19 pandemic, schools were closed and children did not attend school. However, after the lockdown ended, child X did not return to school.
23. In August 2020, child X’s GP signed him off with anxiety for four weeks. Mrs D told School Y and provided a copy of the GP’s letter. At the end of the four weeks, she provided a further GP sickness note to School Y as child X was still experiencing anxiety.
24. In October 2020, child X was diagnosed with Autism.
25. In November 2020, when child X was due to return to school, School X, Mrs D and some professionals around child X agreed for a temporary reduced timetable to be put in place. This was for five days education per week, but at reduced hours.
26. In December 2020, the reduced timetable had not worked as Mrs D had hoped and child X’s attendance had not improved. She made a request to the Council for an EHC Needs Assessment for child X.
27. A further national COVID-19 lockdown took place from January to March 2021 where schools were closed. Following the reopening of School Y, the Council agreed to complete a EHC needs assessment for child X.
28. Child X did not attend school during the national lockdown, and he did not return after. Mrs D continued to support child X at home with his education during this time. She also arranged for a tutor, online learning, and tennis lessons for child X to ensure he received some educational provision.
29. In Summer 2021 the Council decided it would issue an EHC Plan for child X. Its decision was based on the information it received from his school, Mrs D and other professionals.
30. The Council issued it EHC Plan for child X in September 2021. This listed a different school (School Z) which Mrs D had requested, and child X was placed on roll at School Z for the start of the academic year. The EHC Plan also set out the SEN provision he should receive.
31. Mrs D appealed the Council’s EHC Plan for child X to a tribunal.
32. Mrs D asked the Council for a personal budget to pay for the tutor, other educational provision she had arranged for child X, and some equipment to support his learning.
33. In March 2022, the Council told Mrs D it had allocated a secondary school for child X for September 2022. It also said for child X to transition into the school, it would explore whether the tuition Mrs D was paying for could be provided by School Z or through a personal budget.
34. Two weeks later the Council decided to refuse Mrs D’s request for a personal budget. It explained it School Z had implemented an Outreach plan which was a flexible arrangement child X could attend. Mrs D said it told her an education outside of school would be a barrier for child X to attend his education.
35. The Council issued a further EHC Plan for child X in Spring 2022 which listed his SEN provision and secondary school for September 2022.
36. Child X’s attendance at school between September 2021 to July 2022 remained very low at less than 20%.

Mrs D’s complaint

37. Mrs D complained to the Council in Spring 2022. She said:
• the Council had failed its duty under the Education Act 1996 to provide child X with alternative provision to his school when he was unable to attend between September 2020 and July 2022;
• the provision available to child X at School Y and School Z was unsuitable;
• it had wrongly refused her request for a personal budget to pay for the education provision she had arranged for child X and the equipment he needed; and
• it failed to provide her son with his SEN provision set out in his EHC Plan from September 2021 to July 2022.
38. In response the Council found it had not breached its duties towards child X. It explained:
• it first became aware of child X’s case in December 2020 when it received the request for an EHC Needs Assessment, and the EHC Plan was first issued in September 2021. Mrs D should therefore direct her concerns for this period to School Y;
• from September 2021, it placed child X in line with parental preference, and School Z said it could meet his needs set out in his EHC Plan. It had consulted with a specialist school and provided reasonable adjustments to meet child X’s needs in March 2022 when it put in place a flexible school placement for child X to attend with School Z, which Mrs D had agreed to;
• it had refused her personal budget request as it had no medical evidence to suggest child X was unable to attend school and it had taken steps to meet his needs. It said it had provided funds to School Z to provide his SEN provision and her request would therefore be for the school to consider; and
• it did not provide alternative provision as it found the arrangement in place was suitable for child X to attend. It also said it would need for non-attendance due to anxiety to be confirmed by a medical professional other than a GP.
39. Child X has since started secondary school which specialises in autism. His attendance has improved, but he is not yet attending full time.
40. In response to my enquiries, the Council said it had not taken formal action against Mrs D for failure to take child X to his schools as it had worked with her and School Z to support child X in attending and engaging with his education.

Analysis and findings

41. Mrs D complained about matters which occurred since September 2020, part of her complaint was therefore late. However, I have found it appropriate to exercise my discretion to consider her complaint from September 2020 as she continued to bring her concerns to the Council’s, the School’s, and the tribunal’s attention.

Educational provision from September 2020 to August 2021

42. The Council delegated its responsibility to provide child X’s education to School Y. However, while the School Y was required to provide the agreed educational provision, it remained the Council’s responsibility to ensure its duties under the Education Act 1996 were adhered to.
43. The Council said it did not become formally aware of child X until it received his EHC Needs Assessment request in December 2020. It said School Y had not escalated concerns about his attendance to its Education Welfare service through any statutory process. It also said he did not have a finalised EHC Plan at the time and it had provided School Y with funding for child X’s education.
44. While School Y put in place some specific provision for child X in 2021 and maintained its educational offer to him through the academic year, this did not result in child X attending school.
45. I found the Council at fault for its failure to properly consider what educational provision and setting child X could cope with. As a result, child X experienced a loss of education. This is because:
• once the Council became aware child X had not attended school in 2020, or his attendance was very low, it had a duty to consider what educational provision he could cope with. It had an obligation to become involved in the arrangement and work with School Y, Mrs D and professionals around child X to ensure he had access to a suitable education which met his needs;
• the Council required for School Y, or Mrs D, to provide medical evidence, other than from child X’s GP, which showed he was unable to attend school due to his health. Such requirement may help the Council decide whether absences should be authorised. However, a lack of medical evidence does not mean alternative provision should not be properly considered as its duty also includes children who are not attending education for other reasons;
• when considering whether to provide alternative provision, the Council’s reasons that child X did not have an EHC Plan at the time, it had provided funding to School Y and a reduced time timetable was in place were irrelevant. This is because child X was not attending a full-time education; and
• I have seen no evidence the Council considered alternative provision otherwise than in school. This would include its specific alternative provision school, home tuition or any other arrangement.
46. Also, if the Council believed it was Mrs D who failed to bring child X to school, it had a duty to take appropriate action against her to ensure he attended school. However, I have seen no evidence the Council did so or considered this was appropriate.
47. The national lockdowns due to the COVID-19 pandemic also had an impact on the amount of education child X could, or should, have received in the period. This is because School Y was closed for a two-month period in early 2021. As child X did not have an EHC Plan at the time, he could not attend school. While alternative provision could still be provided in this period, on balance, it is likely to have been relatively limited due to the restrictions in place. The injustice he experienced during this period was therefore limited.

Educational provision from September 2021 to July 2022

48. The Council did not provide any alternative provision for child X during the 2021/2022 academic year. It explained this was because:
• it had issued child X’s EHC Plan, which in line with parental preference listed School Z and set out a part-time timetable;
• School Z had confirmed it could meet child X’s needs;
• it had consulted with a specialist school for recommendations to support child X with inclusion and attendance at School Z, which was set out in his EHC Plan;
• it did not receive medical information from Mrs D or child X’s schools that he could not attend due to anxiety or any other medical need;
• advice from Health, obtained during the EHC Needs Assessment, said it was important for child X to return to school as soon as possible as the longer he was out of education the more difficult it would be for him to return.
49. I found the Council should have considered providing alternative provision to child X again shortly after the academic year started, as it should have been aware he was not attending his education.
50. The evidence suggests the Council did put in place a new educational offer at School Z as set out in child X’s EHC Plan. However, this did not mean the Council should not provide any alternative provision when child X continued to struggle to attend school. Its failure to properly consider this and put suitable alternative provision in place was therefore fault.
51. Mrs D and the Council disagrees about what was agreed in the Transition Meeting in Spring 2022 regarding the flexible placement arrangement for child X to attend School Z. The Council says Mrs D agreed School Z’s provision was appropriate, but she says child X could not attend the provision at the time, and she had therefore requested a personal budget to pay for home tuition.
52. I cannot say whether the Council’s or Mrs D’s view of the Transition Meeting is correct. However, the Council confirmed it had refused her request for a personal budget, and Mrs D has continued to pay for the home tuition and other educational provision she put in place. Apart from some limited online provision School Z started paying for in early 2022.
53. I found the Council continued to be at fault as child X could still not access the education available to him for reasons due to health, or otherwise. The Council should have properly considered and put in place alternative provision for child X which enabled him to access an education. This may have been:
• approving Mrs D’s request for a personal budget; or
• for the Council to arrange home tuition, or other alternative provision otherwise than at school, which child X could attend.
54. Alternatively, if the Council believed it was Mrs D’s fault child X did not attend School Z, it should have taken formal action against Mrs D for failure to bring her son to school. The Council confirmed it had not done so.

Special educational provision from September 2021 to July 2022.

55. I found the Council at fault for its failure to properly consider and provide child X with alternative provision for the 2021/2022 academic year. He therefore received less than 20% of the education available to him.
56. The Council’s EHC Plan for child X was issued in September 2021 and set out the SEN provision he should receive. While I acknowledge the Council had provided funding to School Z to provide child X’s SEN provision, it remained the Council’s responsibility to ensure this was delivered by School Z, or if this was not possible, through a separate arrangement by the Council.
57. Child X’s SEN provision was almost exclusively in a school setting. However, as he was unable to attend school for most of the time, he did not receive the provision he was entitled to. This was therefore fault.

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Agreed action

58. To remedy the injustice the Council caused to Mrs D and child X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs D and child X, and pay Mrs D £500 to acknowledge the distress and uncertainty the Council’s faults caused, including the time and trouble she had to bring her concerns to its attention and to arrange some alternative provision herself; and
2. pay Mrs D £7,000, to use as she sees fit for the benefit of child X, to acknowledge the loss of education child X had between December 2020 to July 2022, including the SEN provision he did not receive from September 2021 to July 2022.
59. Within three months of the final decision the Council should also:
1.  
2.  
3. remind schools within its area to provide information to the Council about children who are not attending school for reasons of illness, health or otherwise, which is expected to last for 15 school says or more without delay; and
4. review the Council’s Alternative Provision Policy to ensure it addresses the Council’s approach to absences for ‘other reasons’ in line with the Education Act 1996 and Statutory Guidance.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation with a finding of fault which caused an injustice.

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Investigator's decision on behalf of the Ombudsman