Summary: We did not uphold Ms X’s complaint about school attendance support for her child, Y ending. This is because the Council provided support and attendance issues had resolved at the time support stopped. The Council offered ongoing support from its Inclusion Service around Y’s attendance and health issues and offered alternative provision it considered appropriate to her needs. As this is in line with caselaw and guidance, there was no fault.

The complaint

1. Ms X complained the Council:
1. ended support from the Education Support Behaviour and Attendance Service (ESBAS)
2. failed to arrange alternative provision when it became aware her child, Y was not attending school and so she did not have suitable education.
2. Ms X also complained the Council refused on two occasions to complete an Education Health and Care (EHC) needs assessment and the school recorded Y’s absences as unauthorised.
3. Ms X said this caused Y a loss of education provision and caused them both avoidable distress.

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What I have and have not investigated

4. I have investigated the complaints in paragraph one. I have not investigated the complaints in paragraph two because:
• Decisions not to carry out an EHC needs assessment have a right of appeal to the SEND Tribunal. We expect people to use a statutory appeal process in most cases and it was reasonable for Ms X to have appealed the first refusal.
• Ms X appealed the Council’s second refusal to carry out an EHC needs assessment to the SEND tribunal which means we have no power to investigate (see paragraph five).
• As I have set out in paragraph six, we have no power to investigate a school’s actions unless those actions are carried out on a council’s behalf. This does not apply to recording attendance which is a matter for the school and not for the Council.

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The Ombudsman’s role and powers

5. The courts have said where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended). The Council’s records have information from Y’s primary and secondary schools. These include complaints and informal concerns Ms X raised about actions or omissions by the schools, including how Y’s absences were recorded. We have no power to investigate the actions of schools. We can only look at what the Council did or failed to do.
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. Ms X complained to us in October 2022 so matters between October 2021 and October 2022 are not late complaints and I have investigated them. I have exercised discretion to investigate complaints from June 2021 because the complaint is about a continuing series of events and Ms X continued to raise concerns from June 2021.
9. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 considered the complaint to us, the Council’s complaint responses and documents set out in this statement. I discussed the complaint with Ms X
12. 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

13. 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. In East Sussex, the Council’s Education Support Behaviour and Attendance Service (ESBAS) provides education welfare services for children where there are concerns about attendance.
14. 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 ‘the Section 19 duty’ or ‘alternative provision’ (AP).
15. 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)
16. The Courts have found that it is a judgment 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])
17. The question of what is ‘suitable education’ is for the council. The High Court said ‘the question is not whether the parents have reasonable objections to attending school, the focus of the court’s attention is not upon the parental objections or the child’s objections, but upon the objective consideration of whether the education offered is reasonably possible or practicable to be accessed by the child in question’ (R v Kent County Council [2007] EWHC 2135 (Admin))
18. Ensuring a good education for children who cannot attend school because of health needs (January 2013, amended May 2013) says:
• Local authorities should address the needs of individual children in arranging provision
• Local authorities should review the provision offered regularly to ensure it continues to be appropriate.
• Provision should address a pupil’s individual needs, including social and emotional.
• Local authorities should work together with agencies and parents to ensure best outcomes
19. The Council’s service for children who are out of school for medical/health reasons is called Teaching and Learning Provision (TLP). Its policy says:
• TLP provides temporary packages of education for children who cannot attend school due to health needs, focussing on reintegration.
• There are termly meetings with the family and named professionals to devise an Additional Needs Plan (ANP) and time-limited practitioner sessions. TLP offers live e-learning groups in core subjects or a place at one of three centres.
• There needs to be medical evidence from a medical professional who has seen the child. Evidence which describes SEN but no illness or medical diagnosis will not be accepted.
• The package of support may include opportunities to attend school part time like coming in at break or lunch or after school, being met on arrival.

What happened

20. Y has autism, diagnosed in March 2021 when she was in the final year of primary school. Y had been receiving support from an Autism and Attendance Practitioner (A&A practitioner) from the Council’s Education Support, Behaviour and Attendance Service (ESBAS) from April 2021 because of concerns about poor attendance. The A&A practitioner was providing two hourly sessions a week in a nurture room at school. Ms X also arranged and funded weekly support from a specialist autism project.
21. In June 2021, Ms X applied for an EHC needs assessment for Y. She said Y had not been going to school since March; she had emotionally based school anxiety, autism, social anxiety and a demand avoidant profile. The Council refused to carry out an EHC needs assessment.
22. In June, Ms X complained to the Council. She said her request for temporary education while Y was unable to attend school had been refused. She said she had provided medical evidence (a GP letter and letter from a paediatrician which said Y had anxiety.) She asked for a home tutor who understood demand avoidance.
23. In July and August, the A&A practitioner provided support for Y to attend a summer camp at the secondary school she would be moving to in September. They also met on-line with Y and her parents during the summer holidays. The A&A practitioner shared information about Y and her needs with the secondary school including a support plan and information about Y’s conditions. The A&A practitioner contacted Ms X to make sure Y had attended her first day at secondary school in September. They checked with the school which had no concerns about Y and so the case was closed to ESBAS.
24. Responding to enquiries, the Council told me Y went into secondary school independently for the summer camp, sat in assembly near the front, raised her hand to answer a question, took part in games and produced a creative story. The Council also said feedback from Y and Ms X was they felt secondary school cared for her. School also confirmed they could meet Y’s needs and were advised they could re-refer to ESBAS if necessary. So ESBAS ended support.
25. Ms X raised concerns in emails and in later meetings about the decision to end ESBAS support. She said in a meeting, a council officer from ESBAS had said support would continue into secondary school and the Council went back on this.
26. In October 2021, Ms X contacted the Council’s Communication, Learning and Autism Support Service (CLASS) to raise concerns. (CLASS is part of the Council’s Inclusion and SEND services and provides support to teachers and schools where a pupil has communication needs around autism.) CLASS said the school could refer Y to it if it had concerns about her. In November, following further contact from Ms X, CLASS asked the school to complete a referral form to the Council’s Inclusion and SEND service and it did so.
27. On the referral, school requested support to improve Y’s attendance and said Y had anxiety. It noted she did not speak at school and communication was through Ms X. It explained the strategies school had tried (like a reduced timetable, meet and greet, fiddle toy and a quiet room) were not working well.
28. In December, ESBAS re-opened Y’s case. A home visit by an ESBAS practitioner was arranged for January 2022 and the practitioner spoke to Ms X, made an internal referral to CLASS and spoke to Y’s clinical psychologist for information about their input.
29. At the end of January 2022, professionals sought advice from the clinical psychologist. The psychologist provided a short letter which did not say Y was too ill to attend school. The letter said AP would be likely suitable for Y at this time to reduce the demands on her to get into her mainstream setting while she was struggling. The psychologist noted she had not yet met Y.
30. In February, the ESBAS practitioner referred Y to the Council’s provision for children with medical needs, called the Teaching and Learning Provision (TLP).
31. In March, practitioners from the TLP and ESBAS visited Y at home and spoke to her parents as well. Also in March, Ms X made a second request for an EHC needs assessment. The Council refused.
32. At the end of March, the clinical psychologist updated the Council on the two sessions Y had attended with her. They noted Y had high levels of stress from her educational experiences and that over the last few weeks, with pressure off around school and feeling listened to, Ms X had reported that Y was becoming more herself and was engaging in activities.
33. Case notes indicate TLP offered on-line learning in March. Ms X raised concerns about this being in the home and so alternative venues were suggested. Ms X said on-line learning would not work and so it did not go ahead. Ms X said she only declined options which she felt were unsuitable for Y because of her conditions.
34. There was a professionals meeting at the end of March to discuss roles. School staff, the ESBAS and TLP practitioners attended. TLP noted Ms X had refused on-line provision at home or in the library or a coffee shop although she had initially been receptive. The agreed actions were to hold a review meeting the next month to support the psychologist’s recommendations, to establish a working relationship with Ms X and improved attendance for Y.
35. In April, there was a review with professionals and Ms X. Y had been to some sessions at school. The plan was to identify a subject Y could attend, for Y to meet the teacher before starting lessons and for the teacher to discuss strategies with Y to manage the lesson, to build a relationship with her and to arrange an initial timetable for attendance. TLP noted it could re-offer e-learning if Y was able to access this.
36. In May, relationship-building sessions were offered with a named teacher and the school’s therapy dog. The clinical psychologist made some written recommendations and gave some literature for staff to read about Pathological Demand Avoidance (PDA). The recommendations for Y’s education were:
• Giving her as much control as possible
• Rephrasing demands using more tentative language or offering choices.
37. In June, there was a review meeting with professionals and Ms X. This looked at why some sessions at school were successful. School was arranging relationship sessions for Y. CLASS was delivering specialist training for school staff on PDA.
38. The clinical psychologist sent a closing report about Y in July 2022. This gave guidance on how to support Y in an education setting and said a ‘graded exposure’ approach was not appropriate. The psychologist went on to say she had not worked with Y for many sessions and that reintegration into school was not appropriate. She recommended the Council do an EHC needs assessment.
39. Also in July 2022, Ms X complained to the Council. It provided a long response in August. I have summarised the key points below:
• AP is considered when other options have not been successful. It did not provide AP during the transition to secondary school because the A&A practitioner was supporting Y.
• Officers from CLASS and ESBAS contacted the primary school to follow up on a review meeting in July 2021. The focus was on the transition to secondary school.
• ESBAS delivered face to face support and a link advisor from CLASS supported the school with strategies and materials to support Y.
• A standard block of support from ESBAS was usually 12 weeks. This was extended in Y’s case to provide transition support. ESBAS provided four home visits in May and June, six primary school visits in May and June, three secondary school visits in July and August (two of these during summer school), two virtual meetings with Mr and Ms X in August and documents provided to secondary school about Y and information about her condition. Contact with Ms X in September.
• ESBAS explained secondary school needed to be given a chance to get to know Y. It would have been better to discuss this face-to-face rather than in an email.
• Y’s summer camp went well and the A&A practitioner stepped back as she did not need any support. Secondary school had no concerns and so the case closed. Had school expressed concerns, support would have continued. Sometimes continuing support could have the opposite effect and it is helpful to see how a child responds without support.
• There was a plan to support Y’s reintegration into school, produced with input from Ms X, school, the psychologist, TLP, ESBAS and CLASS. Y’s private therapist had also attended some meetings. Everyone agreed Y was not ready for full-time education. The agreed plan was a phased approach to returning to school.
• TLP consulted with her and offered to consult with Y but she declined. It also consulted with school and medics to enable it to devise a suitable medical package focussing on reintegration. The package offered was: e-learning, for Y to choose one subject, school would then arrange a meeting with the subject teacher and Y and Y would then just attend for this subject of her choice. As the psychologist advised Y would benefit from one person to build a relationship, it was decided a school staff member was best placed and so no further TLP support worker provision was offered.
• In line with the Section 19 duty, the Council offered e-learning as an AP along with a plan of reintegration with an individual timetable.
• TLP’s focus is on present need and developing a return to school plan. The current plan was for Y to attend weekly relationship-building sessions with one teacher and the therapy dog.
40. In September Y attended sports day and a few other sessions at school. There was a further review meeting with professionals and Ms X. Y had attended the school sports day and some other sessions. School agreed to provide a mentor as well as planned sessions. The plan was for Y to continue building a relationship with one teacher and to attend school on as many days as she felt able. Ms X was to identify a lesson each day which Y could attend. School would then plan support for the session.

Was there fault?

The Council ended support from the Education Support Behaviour and Attendance Service (ESBAS)

41. There was no fault. Records indicate ESBAS provided intensive weekly support to improve Y’s attendance in the last term of primary school and during the summer holiday transition camp. ESBAS was not intended to be permanent and there is no legal requirement for open-ended support where issues around attendance are resolved. The Council ended support when the practitioner had completed work to support Y with the transition to secondary school. The practitioner established there were no current concerns about Y being able to attend and had provided relevant information to school about Y’s needs. The papers were clear that school could re-refer Y if there were further problems. I am satisfied the Council acted in line with the statutory guidance set out in paragraph 18. I note Ms Y felt continued support in year seven was necessary, but councils don’t have to accede to parental requests. Having provided support over the summer holidays and established secondary school was confident in supporting Y, the decision to end ESBAS support in summer 2021 was not taken with fault.

The Council failed to arrange alternative provision when it became aware Y was not able to attend school and so she did not have suitable education

42. The Council first provided support around attendance because school regarded the absences as unauthorised. Once medical evidence from the psychologist indicated Y’s mental health had deteriorated, the Council offered support and on-line provision through its medical needs team (TLP) through the duty in Section 19 of the Education Act. Officers liaised with the school to establish a focus on relationship-building with key staff in school. The latter (relationship building in school) was in line with the health professional’s advice. Case law says it is for the Council to decide what weight to give a health professional’s advice. I am satisfied the Council considered the recommendations of the clinical psychologist at the time and that the plans for Y’s reintegration into school were paused in line with their advice and then reviewed and amended during regular multi-disciplinary review meetings over the school year. Ms X wanted other therapeutic education (and sought to secure this for Y through an EHC needs assessment and plan) but nothing in law or guidance required the Council to provide this where it considered provision it had offered was accessible and available for Y. Case law says the focus should not be on the parent's objections but on an objective consideration of whether the education offered is reasonably practicable or possible to be accessed by the child. Ms X declined on-line provision on the basis that it had not worked for Y during lock-down and so in her view was unsuitable. However, lock-down on-line learning was organised by school and the provision the Council was proposing under Section 19 was through its medical needs team and so not the same as education during lockdown. It is not for the Ombudsman to say whether a specific provision is reasonably practicable or possible to be accessed. That is for the Council.
43. Officers from three areas of the Inclusion and SEND service worked in partnership with Y’s clinician and closely with the school as required by guidance I have summarised in paragraph 18. So there is no fault.

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Final decision

44. We did not uphold Ms X’s complaint about attendance support for her child Y ending because the Council provided support and attendance issues had resolved at the time support stopped. The Council offered ongoing support from its inclusion service around Y’s attendance and health issues and offered alternative provision it considered appropriate to her needs. Ms X did not agree on-line provision was suitable, but the Courts have said the question of suitability of provision is for the Council and not the parent. As the Council acted in line with caselaw and guidance, there was no fault.
45. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman