Summary: Miss X complained the Council failed to provide her child, Y, with suitable alternative provision during their absence from school due to school-related anxiety. We found the Council was at fault as it delayed providing Y with alternative provision which caused Y to miss education. It also caused Miss X distress and frustration. The Council has already made service improvements to prevent a recurrence of fault. In addition, the Council has agreed to apologise to Y and pay them £1200 to recognise the education they missed and apologise to Miss X and pay her £150 for the distress and frustration the matter caused her.

The complaint

1. Miss X complained the Council failed to provide her child, Y, with suitable alternative provision during their absence from school due to school-related anxiety. Miss X said Y stopped attending school in June 2021 and is still not attending. Miss X said it has negatively affected Y’s learning and social development and has caused Miss X distress. She wants the Council to provide Y with alternative provision.

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What I have and have not investigated

2. I have investigated Miss X’s complaint from June 2021, when Y stopped attending school until February 2022.
3. I have not investigated beyond February 2022. This is because in February 2022, the Council issued Y’s final Education, Health and Care Plan (EHC Plan). Miss X was unhappy with the placement named in the EHC Plan and had the right to appeal to SEND Tribunal which she had exercised.

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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 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.
6. The law says we cannot normally investigate a complaint when someone can appeal 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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How I considered this complaint

9. I spoke with Miss X and considered the information she provided.
10. I considered information the Council provided.
11. Miss X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Alternative provision

12. Section 19 of the Education Act 1996 states 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.
13. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have.
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.
15. Our 2022 focus report on children out of school, “Out of school, out of sight” highlights what action we expect councils to take to fulfil their responsibilities when children of compulsory school age cannot go to a school. This includes councils to:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible; and
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases.

Education, Health and Care Plans

16. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.

Appeal rights

17. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final EHC plan is issued.

What happened

18. Miss X’s child, Y, has neurological development disabilities and special educational needs.
19. At the beginning of June 2021, Y stopped attending school due to anxiety which was related to their school. Miss X gave the School a letter from Y’s General Practitioner (GP) which said Y had severe anxiety and was not able to attend school. However, the School told Miss X the evidence was not sufficient to support Y’s absence from school.
20. Around the same time, Miss X told the Council’s Attendance Team Y had stopped attending school and that the School required more evidence to support Y’s absence. Miss X asked the Attendance Team for support.
21. Between June 2021 and July 2021, the Council’s Attendance Team:
• asked the School to re-consider the evidence Miss X had provided in relation to Y’s absence from school;
• liaised with the School and asked it to make a referral to an independent organisation which supported parents and their children who have neurological development disabilities. It said the organisation would be able to provide appropriate guidance to the School and how it could support Y;
• informed the Specialist Advice and Support team for children with special educational needs and disabilities; and
• encouraged Miss X to work with the School to help Y reintegrate back into school.
22. Miss X told the Council’s Attendance Team she wanted Y to attend another school as she felt the current school was not appropriate to meet Y’s needs and it had caused Y anxiety. The Team told Miss X until she had found a place for Y at another school, Y remained on roll at the current school.
23. Towards the end of June 2021, Miss X submitted a request to the Council to complete an EHC needs assessment for Y to have an EHC Plan.
24. The School planned to visit Miss X and Y at their home with a specialist worker in children with neurological development disabilities. The purpose of the visit was to assess Y and refer them to the Council’s service called Education Support for Medical Absence (ESMA). By mid-July 2021, Miss X told the Council’s Attendance Team this visit had still not happened. She asked the Team again for support. The Team responded and said the School had closed for the summer term and so no home visits would take place until the new academic year. It was unclear whether this visit happened.
25. In mid-October 2021, a specialist advisory teacher from the Council’s Special Educational Needs and Disability Team (SEND) visited Miss X and Y in their home. During the visit, the Specialist Advisory Teacher discussed with Miss X and Y their views on Y returning to school and a plan of action to support Y’s reintegration.
26. Towards the end of October 2021, the Council’s SEND Team told Miss X it would be completing an EHC needs assessment for Y.
27. At the beginning of November 2021, the School referred Y to ESMA. By mid-November 2021, ESMA began providing Y with part-time educational support to help Y reintegrate back into school. As part of the support, Y had access to online learning for core subjects with a gradual increase to other subjects such as digital learning. The initial support was delivered virtually however, there was a plan in place for Y to access one-to-one learning at another location.
28. Whilst ESMA provided support to Y, it reviewed the support regularly to ensure the support was appropriate and what it needed to work towards to help Y reintegrate back into a school setting. The review records note Miss X did not want Y to return to the current school.
29. ESMA liaised with the School and the School offered to send work home to Y which included subjects of Y’s choice as well as core subjects. Y had the opportunity to attend the School and access one-to-one learning.
30. In February 2022, the Council issued a final EHC Plan. Miss X was unhappy with the content of the EHC Plan including the placement named in it which was the current school. In May 2022, Miss X appealed to the SEND Tribunal.
31. In September 2022, Miss X complained to the Council. As part of her complaint, Miss X said the Council had known about Y’s absence since June 2021 and it had failed to provide Y with alternative provision. The Council investigated Miss X’s complaint and did not uphold it. As part of its response, the Council said it only became aware of Y’s absence in April 2022, when it spoke with Miss X.
32. Miss X remained unhappy and complained to us.
33. In response to my enquiries, the Council found its Attendance Team was aware of Y’s absence from school in June 2021. It recognised its internal services had not worked collaboratively with Y’s case.
34. Since Miss X’s complaint, the Council completed a review of its Attendance Team, the SEND Team and ESMA to establish a new way of working together so in future, the need for alternative provision is promptly identified and put in place.

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Findings

June 2021 – July 2021

35. Y stopped attending school at the beginning of June 2021. Miss X approached the School and the Council’s Attendance Team for support. The Council’s Attendance Team was aware of Y’s absence from school since June 2021.
36. Between June 2021 and July 2021, the evidence shows the Council’s Attendance Team liaised with the School about Y’s absence and provided Miss X with advice. This was appropriate. However, no educational support was provided to Y, despite Miss X asking for it. The Council should have considered whether it had a statutory duty to provide alternative provision for Y as soon as it became aware they were not attending school. Not doing so was fault.

September 2021 – November 2021

37. Y remained out of school between September 2021 and November 2021 without any provision. There is no evidence the Council had any oversight or considered whether it was appropriate or necessary to put provision in place during this period. The SEND Team visited Y in their home and discussed a plan to help Y reintegrate back into school but there is no evidence this plan was implemented. This was fault.

November 2021 – February 2022

38. Between mid-November 2021 and February 2022, Y had access to educational support via ESMA. ESMA worked with the School and Miss X and had a plan in place to help Y reintegrate back into school. ESMA regularly reviewed the plan and made changes where necessary to ensure the plan remained appropriate for Y. This was in line with guidance and what we would expect the Council to do. The Council was not at fault. I recognise Miss X believes the educational support was not suitable for Y. However, ESMA considered Y’s school-related anxiety and so tailored a part-time plan to suit their needs, with a view in mind to re-introduce Y to school.

Injustice

39. Y missed out on educational support between June 2021 and July 2021. Y continued to miss out on educational support between September 2021 and November 2021. This equated to approximately 16 weeks. It affected their learning and social development. It also caused Miss X distress and frustration. The recommendations below are to remedy the injustice caused to Y and Miss X.
40. There was poor communication between the Council’s services. The Council’s Attendance Team, SEND Team and the Education Support for Medical Absence Team were all involved with Y’s case however, it is clear that they did not share information with each other which is what contributed to the delay in putting in place alternative provision for Y. The Council recognised this and made service improvements. This was appropriate and what we would expect the Council to do.

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Agreed action

41. Within one month of the final decision, the Council has agreed it will:
• apologise to Y and make a symbolic payment to them of £1200 to recognise the educational support they did not receive between June 2021 and July 2021 and between September 2021 and November 2021; and
• apologise to Miss X and make her a symbolic payment of £150 for the distress and frustration she experienced when Y was not receiving educational support between the periods mentioned above.
42. The Council will provide us with evidence it has complied with the above actions.

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Final decision

43. I have now completed my investigation. The Council was at fault. It has agreed to action the recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman