Summary: Miss X complained the Council failed to provide appropriate education for her son Y, when he was unable to attend school from April 2022 and failed to respond to her complaint on the matter. There was no fault in how the Council considered Y’s education. There was fault in how the Council considered Miss X’s complaint. The Council agreed to apologise to Miss X and pay her £100 to recognise the frustration and confusion this caused.

The complaint

1. Miss X complained the Council failed to provide appropriate education for her son Y, when he was unable to attend school from April 2022 and failed to respond to her complaint on the matter. Miss X said this caused her and Y distress, meant Y lost out on education and she had to fund education for him. Miss X wanted the Council to apologise, provide appropriate education for Y and compensate them both for the distress and cost of education she had funded.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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.
5. 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).
6. 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)
7. 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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What I have and have not investigated

8. Miss X complained about the education provided to Y between April 2022 and March 2023. I have investigated matters between April 2022 and November 2022.
9. I have not considered matters after November 2022. This is because the Council issued an Education, Health and Care (EHC) plan for Y in November 2022. Miss X appealed the specialist provision and named school in that plan to the SEND Tribunal. The appropriateness of the education available to Y after that date cannot be separated from the matters appealed to the Tribunal and so I have not considered it, as set out in paragraph five.

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How I considered this complaint

10. I considered the documents Miss X provided and I discussed the complaint with her on the phone.
11. I read the documents the Council provided in response to my enquiries.
12. Miss 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 legislation and guidance

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.

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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
15. 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])
16. 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

We made recommendations, including that councils should:

• 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; and
• 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.

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

Early Help

18. Early Help aims to significantly improve the outcomes for children, young people and families. To do this, local agencies work together to identify and assess individual needs, and provide targeted support. An Early Help meeting is held with those professionals involved with the family and a plan is formed to help the family meet whatever goals are identified. The lead agency (often a school) sends the plan to the Council for oversight and central record keeping.

Child in need

19. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. This is a voluntary service and so a family or individual can decline to engage with a section 17 assessment, or subsequent plan. (Working Together to Safeguard Children) 

What happened

Background

20. In the academic year 2021/22 Y was in year 5 at primary school. He had moved to a new school (School A) and began attending in September 2021.
21. The Council states that due to concerns about Y’s attendance the Council’s Education Welfare Officer (EWO), suggested an early help assessment in November. The records show that Miss X requested the assessment. At that time Y’s attendance at school was below 70%. School A met with Miss X and discussed how it could support Y. It recorded the school nurse was already helping Y in managing his anxiety. It planned out the actions it and Miss X would take to support Y’s attendance.
22. School A reviewed the EHP with Miss X in January 2022. It recorded School A had completed the actions identified however Y’s attendance had decreased. The new plan said School A would offer a reduced timetable on Miss X’s request to support Y’s attendance and it would review it in three weeks’ time. School A sent the early help plan to the Council.
23. Miss X asked the Council to assess Y for an education, health and care (EHC) plan in February 2022.
24. School A met with the Council’s autism specialist teacher in February 2022 about Y’s attendance. The Council provided advice to School A about how it could support Y. It advised School A to obtain and consider any medical evidence offered about Y’s absence.
25. School A confirmed to the Council that it could meet Y’s needs when he attended in March 2022. School A asked Miss X to complete medical forms for Y and provide permission for it to speak with Y’s GP about his medical needs. Miss X declined and told School A that Y was on the waiting list for three alternative provisions she had identified.
26. Miss X provided a letter from the GP about Y’s absence. It referred to Y having low mood and anxiety. The Council said the EWO contacted Miss X and explained the Council did not consider the GP letter was sufficient medical evidence to say Y could not attend school.
27. The Council declined to assess Y for an EHC plan in March 2022.

Events from April 2022

28. The Council met with School A in April. It reviewed the support school was offering Y. The EWO recommended School A begin a formal attendance process to support Y’s attendance. They recommended regular school attendance meetings as initial actions. School A said it had employed a staff member specifically to support Y to attend and help him stay in school every day.
29. Miss X wrote to the Council in April 2022. She asked the Council to provide Y with alternative provision under its section 19 duty. She said Y had missed more than 15 full days due to his anxiety and mental health. Miss X said School A said it could meet Y’s needs but he was not making any progress. She said he was on a part-time timetable and was waiting for an appointment with the children and adolescent mental health service (CAMHS). Miss X also provided an Occupational Therapist (OT) report for Y and a GP’s letter. Miss X asked the Council to explain why if it would not provide it.
30. Various meetings were held between School A, the Council and Miss X to discuss and plan the support that should and was being offered for Y’s attendance at school in April and May 2022.
31. The Council said its Inclusion team received Miss X’s April 2022 request for alternative provision at the end of May 2022. Miss X sent a GP letter that said Y suffered mental health difficulties which very often stopped him attending school.
32. The Council agreed to complete an EHC needs assessment for Y in June 2022.
33. The Council said it spoke to School A at the beginning of June and School A confirmed it could meet Y’s needs when he attended. The Council said it held a professionals meeting about alternative provision for Y later that month. It decided it was in Y’s best interest to try a phased return to school. It said it considered:
• the need to maintain friendships and support networks in preparation for upcoming move to secondary school;
• services were available from the PMHS and a SEND service who could provide targeted support to re-engage Y with school which had not yet been tried;
• School A was able to meet Y’s needs including the needs and provision specified in the OT report provided by Miss X; and
• Y did not meet the criteria for CAMHS which indicated his mental health needs could be met at a community level.
34. At the attendance meeting in July, School A said it had secured funding to offer mentoring for Y over the summer to continue in school in September to aid reintegration. School A said the GP’s letter did not recommend a period of absence from school.
35. In August Miss X, in correspondence with an educational needs and disability (SEND) officer, asked if the Council was responding to her request for alternative provision, referring to its section 19 duty. The SEND officer said it decided it was in Y’s best interest to try a phased return to School A and set out the reasons. They said alternative provision would be considered as part of the EHC needs assessment. The SEND officer was referring to the provision or school named in the EHC plan. Miss X responded and said she disagreed and said Y needed alternative provision.
36. A Council educational psychologist (EP) completed an assessment of Y in July 2022 as part of the EHC needs assessment. The EP attended the next early help review meeting with School A and Miss X in September 2022. The early help plan recorded School A would provide a reintegration timetable beginning in October, which was endorsed by the EP.
37. The Council issued a draft EHC plan for Y in September. It told Miss X that it considered Y’s needs could be met in a mainstream school.
38. In October 2022 Miss X asked the Council if she had exhausted the complaints process with her complaint about alternative provision.
39. In the middle of October the PMHS considered Y’s case. It agreed the reintegration plan was appropriate and suggested some additional actions for School A to support his reintegration.
40. School A completed a safeguarding referral to the Council about its concerns for Y’s mental health as reported to it by Miss X. The Council considered the information and offered to support Miss X through a child in need assessment. Miss X declined. It reiterated its advice to continue with the attendance procedure to encourage Miss X to ensure Y attended school.
41. The Council issued a final EHC plan for Y in November 2022 and told Miss X of her right to appeal to the SEND tribunal if she disagreed with the content of the plan. Miss X later appealed to the SEND Tribunal about sections B (special educational needs), F (specialist provision) and I (named school or placement) of that plan.
42. In November the Council discussed Miss X’s complaints with her. She said she had two complaints, one about educational provision and one about a separate matter with the SEND department. She said she was confused about who was responding to either or both complaints. The Council did not respond to this complaint.
43. In April 2023 we asked the Council to consider Miss X’s complaint at stage two. The Council sent Miss X a copy of its response to a different complaint.
44. The Council confirmed to me it has taken action to develop a new complaints database to ensure complaints are passed to the correct team for consideration and response. It is in the process of testing the database which it says will be in use by the end of this year, which will improve its handling of complaints.

My findings

Alternative provision

45. The Council considered the medical evidence Miss X provided to support her view that Y was too unwell to attend school. It discussed the matter with the professionals involved with Y’s case. It considered the adjustments School A had made and would continue to make to support Y’s attendance. It decided Y’s health needs did not prevent him from attending school and that suitable education was available and accessible to Y at School A. Case law states that it is for the Council to decide whether a child’s health needs prevent them from attending school. There was no fault in how the Council made that decision and so I cannot question the outcome.
46. The Council required Y’s attendance at school, kept the case under review via regular meetings and assured itself School A was providing the additional support and could meet Y’s needs. The Council acted in line with our guidance and there was no fault in its actions.

Complaint handling

47. Miss X asked the Council if she had exhausted the complaints process about the alternative provision in October 2022. However, at that stage she had not made a complaint, only a request. The Council did not recognise that Miss X wished to complain about the section 19 duty and therefore did not respond. The Council also failed to recognise Miss X was trying to raise a separate complaint when we asked it to consider the matter in April 2023.
48. The failure to recognise Miss X wanted to complain about the section 19 alternative provision was fault and caused Miss X frustration and delay as her complaint was not considered by the Council. The Council has set out the action it is taking to improve its complaint handling in the future, which is appropriate. I have made a further service improvement recommendation below.

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Agreed action

49. Within one month of this decision the Council will:
• apologise to Miss X and pay her £100 to recognise the frustration and confusion caused to her by its delay in recognising and considering her complaint about the matter; and
• ensure relevant staff in the Inclusion and SEND teams are able to recognise and respond to a complaint properly, with reference to our Guidance on Effective Complaint Handling for Local Authorities.
50. The Council will provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice and avoid the same fault in the future.

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Investigator's decision on behalf of the Ombudsman