Summary: Mrs X complained the Council failed to provide her son with suitable alternative education while he was unable to attend school. Mrs X says the Council’s actions caused her avoidable stress and resulted in her son disengaging from education which negatively impacted his mental health. We found some fault regarding this matter and the Council has agreed to make some service improvements.

The complaint

1. Mrs X complained the Council failed to provide her son with suitable alternative education while he was unable to attend school. She complained the Council did not provide suitable alternative education prior to issuing an Education, Health and Care plan. Mrs X says the Council’s actions resulted in her son disengaging from education, and that this negatively impacted his mental health and self-esteem. She says the Council’s actions also caused avoidable stress to her. She would like the Council to acknowledge its actions and to ensure other families do not experience similar issues.

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What I have and have not investigated

2. I have investigated Mrs X’s complaint for the period January 2022, (when Mrs X’s son stopped attending school) to 5 July 2022, (when the Council issued the final Education, Health and Care plan).
3. I have not investigated Mrs X’s complaint for the period after the Council issued the final Education, Health and Care plan.

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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. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. (Local Government Act 1974, section 25(7) as amended)
6. The Special Educational Needs and Disability Tribunal (SEND) is a tribunal that considers special educational needs. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.
7. 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 was engaged 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).
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. I discussed the complaint with Mrs X and considered the information she provided.
11. I made enquiries to the Council and considered the information it provided.
12. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Education, Health and Care plans

13. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.

Education Act 1996 and alternative provision

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 section 19 or alternative education provision.
15. “Suitable education” means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
16. The courts have considered the circumstances where the section 19 duty applies. 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)
17. 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. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
18. 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)
19. 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.

20. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils are responsible for retaining oversight and control to ensure their duties are properly fulfilled.

Background

21. Mrs X’s son, Child Y, has a diagnosis of ADHD and learning difficulties. Mrs X says Child Y can be fearful and hyper-vigilant and says this meant Child Y was unable to engage fully with the mainstream school he was attending, School A. As a result, in late 2021, School A introduced a reduced timetable for Child Y.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Mrs X asked the Council to undertake an Education, Health and Care needs assessment. In December 2021, the Council agreed to carry out the assessment.
24. Child Y was absent from school during January 2022 due to medical reasons.
25. In early February 2022, Mrs X attended a meeting with School A to discuss educational provision. Mrs X said Child Y was unable to return to school at this time because it was unable to meet his needs. Mrs X asked School A to provide alternative provision for Child Y.
26. Later that month, Mrs X told the Council she was concerned Child Y was missing school. She said Child Y was experiencing anxiety and could not return to School A at that time.
27. In early March 2022, Child Y visited an alternative provision provider, Provider B. Mrs X told the Council and School A that she did not consider Provider B to be suitable. Mrs X said she would prefer Child Y to access provision from a different provider, Provider C, instead.
28. School A wrote to Mrs X and said although Child Y had enjoyed a temporary placement at Provider C, it did not consider this had demonstrated any positive impact on Child Y’s behaviour or his ability to engage in education. School A said placing Child Y with Provider C may be detrimental to his progression. It said it considered Provider B was suitable for Child Y and was the best available option. School A said the issue of an EHC plan may allow Mrs X to request specialist provision. However, until then, it said Child Y remained on School A’s roll, with an available place, and that Child Y needed to attend school.
29. Shortly afterwards, Mrs X wrote to School A and said she agreed for Child Y to attend the provision offered by Provider B.
30. Provision from Provider B started on 14 March 2022 for three days a week. School A set online learning for Child Y to complete at home for the remaining two days.
31. In April 2022, the Council issued a draft EHC plan.
32. On 4 July 2022, School A told Mrs X that due to funding issues, Provider B was not able to offer provision from the end of the week. School A suggested a potential return to school for Child Y, on a reduced timetable, or alternatively, it could provide an online learning package for the last two weeks of school term.
33. On 5 July 2022, the Council issued the final EHC plan, which named School A as the setting for Child Y.

What happened next

34. In August 2022, Mrs X appealed to the Tribunal regarding the named setting, as she said Child Y could not attend a mainstream school.

Mrs X’s complaint

35. Mrs X complained to the Council on 9 November 2022. She said Child Y had not been in education since July 2022, and prior to that, had not been at school since January 2022. Mrs X said the Council had refused an application for a placement at a special school and said she had appealed to the Tribunal regarding this decision. Mrs X said the Tribunal hearing was due to take place in March 2023. Mrs X complained Child Y was without provision despite her sending numerous emails to explain the situation.
36. The Council issued its stage one complaint response on 1 December 2022. It said it had consulted with five specialist provision providers to secure an appropriate educational placement for Child Y. The Council said it asked School A what steps were needed to ensure it could meet Child Y’s needs, and what level of funding was required. It said School A described the type of setting required but initially did not ask for further funding. The Council said it later received a funding request from School A, which it agreed in time for Child Y to start after the October half term. The Council said School A had provided alternative provision via Provider B, but this was cut short. The Council said School A did not inform it that Child Y was not attending, and the Council became aware of this via the Tribunal process. The Council said it was continuing to work with School A to ensure a suitable package was in place, and said it was negotiating with other providers to secure a specialist placement.
37. Mrs X escalated her complaint to stage two on 1 December 2022. She said the Council had not offered anything further and had failed to respond to the overarching request regarding provision for Child Y.
38. Later that month, School A wrote to Mrs X. It said it had agreed with the Council to seek to commission a package of three days’ a week alternative provision with another provider, Provider D. School A said Child Y needed to attend online lessons for the remaining two days a week.
39. In January 2023, Mrs X told the Council and School A of her concerns regarding the online learning programme.
40. On 11 January 2023, the Council provided its stage two response. It said it understood Child Y had been without a satisfactory education package since July 2022 and said it had made a number of attempts to rectify this. The Council said it understood that a specialist educational setting, Provider E, had offered a place to Child Y and said it would make arrangements for Child Y’s transition to the setting. The Council said that following Mrs X’s complaint, it would communicate with all school leaders to set out the responsibilities of schools and the Council when a child is not in education. The Council also said it would review its funding and panel processes to ensure timely decisions are made when a child is not in education. The Council also said it would carry out a learning review with School A to understand what lessons could be learned.
41. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

Subsequent provision for Child Y

42. Child Y started attending Provider E at the end of January 2023.
43. In February 2023, Mrs X withdrew her appeal to the Tribunal. The Tribunal service formally closed the appeal in May 2023 by the issue of a consent order.

Analysis

44. Mrs X complains the Council failed to provide suitable alternative provision while Child Y was unable to attend school. As stated at paragraph two, this investigation looks at the period January 2022 to 5 July 2022.
45. The Council says School A commissioned and provided alternative provision for the period in question. The information provided in response to my enquiries supports the explanation that it was School A who commissioned alternative provision (with Provider B for the period 14 March 2022 to 6 July 2022). I also acknowledge Mrs X’s comments that the Council advised her to contact the school when she asked for alternative provision.
46. As previously stated, 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. 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 they properly fulfil their duties.
47. As part of my enquiries, I asked the Council to provide evidence of the actions it took to secure alternative provision for Child Y for the period in question. The information provided shows the Council’s actions regarding the EHC plan process but does not demonstrate how it maintained control or oversight of providing alternative provision. The Council’s explanation for its involvement with alternative provision between January 2022 and July 2022 refers only to its explanation that School A commissioned and provided alternative provision at that time.
48. The evidence indicates the Council’s approach in this case was to delegate responsibility for securing alternative provision for Child Y to School A. This view is supported by a lack of evidence to demonstrate the Council’s oversight regarding the procurement of alternative provision, Mrs X’s comments that the Council told her to contact School A regarding this matter, and School A’s comments that it considered the Council’s view was the school was responsible for providing alternative provision.
49. As a result, the evidence indicates the Council did not take sufficient steps to retain oversight and control of the alternative provision provided to Child Y for the period January 2022 to July 2022. The Council is therefore at fault regarding this aspect of the complaint.

Section 19 duty

50. School A states at no point was the offer of a mainstream placement withdrawn for Child Y. It says it made several reasonable adjustments to facilitate Child Y’s attendance, including providing a reduced timetable and 1:1 support. However, School A says Mrs X elected not to send Child Y to the mainstream setting because she considered this provision was not enough to meet Child Y’s needs.
51. I acknowledge Mrs X’s comments that Child Y was unable to attend or engage with education at School A due to his hyper-vigilance and anxiety. I also acknowledge School A’s comments that the Council maintained it was the school’s responsibility to provide offsite alternative provision for Child Y because Child Y’s special educational needs prevented him from engaging in mainstream education.
52. As previously stated, the section 19 duty requires councils to 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. However, the duty does not apply simply because a parent refuses to send a child to the educational provision. 
53. Education offered, regardless of its rejection by the parent, must be “reasonably available and accessible” to the child. From the information provided, there is no indication the education offered by the mainstream setting at School A was not reasonably available and accessible; Child Y had attended this setting prior to his absence from school and School A confirms the offer of a placement was not withdrawn.
54. Although I acknowledge Mrs X’s comments regarding the reasons she considered Child Y could not attend School A, this does not demonstrate the education offered to Child Y at the time was not “reasonably available and accessible”. This is because the placement at School A was still available and Child Y remained on its roll, and because the final EHC plan issued on 5 July 2022 named School A as the educational setting.
55. As a result, the Council satisfied its section 19 duty for the period January 2022 to July 2022, and is therefore not at fault regarding this aspect of the complaint.

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Agreed action

56. To address the fault identified, the Council has agreed to take the following action within one month of the final decision:
1. Remind staff of our 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.
57. The Council has also agreed to take the following additional action within three months of the final decision:
1. Review its policies and procedures to ensure it retains oversight and responsibility for its duties to children unable to attend school.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman