Summary: Mrs X complains the Council failed to provide alternative education after her son, Y, became too ill to attend school. We have concluded our investigation having made a finding of fault. Although we found Y’s absence did not trigger the Council’s section 19 duty to provide alternative education, we found that it failed to review Y’s circumstances when he enrolled at a new school in September 2022. There was a missed opportunity by the Council to review the matter and contribute to any forward planning and further support. The Council has agreed to our recommendations.

The complaint

1. Mrs X complains the Council failed to provide alternative education after her son Y, became too ill to attend school. Mrs X would like the Council to provide a remedy to acknowledge the loss of opportunity and education. Mr X would also like the Council to reimburse costs incurred after it sought the services of Gecko Community, and a remedy to acknowledge distress imposed on the family.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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 not investigated

5. I have not investigated any complaint about failing to provide alternative education from September 2023. This is because Mrs X has an ongoing appeal where she is appealing sections B, F and I of Y’s EHC Plan, and seeks an EOTIS package for Y. As per paragraph 17 below, the restriction applies from the date the appeal right arose, which is when Y’s EHC Plan was issued in September 2023. Therefore, this limits the scope of my investigation to October 2021 – August 2023.

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How I considered this complaint

6. I liaised with Mrs X and considered the information she provided. I made enquiries with the Council and considered the information it provided in response. Mrs X and the Council were offered an opportunity to comment on my draft decision, and I considered any comments submitted before making a final decision.

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What I found

Relevant law and guidance

Alternative education

7. 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.
8. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
9. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established 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)
10. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
11. Suitable education means efficient education suitable to a child’s age, ability, and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
12. The education provided by the council must be full-time unless it decides 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)
13. 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’)
14. 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?’ July 2022)
15. We made seven recommendations. Councils should:
• consider the individual circumstances of each case and be aware 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;
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible, therefore, retaining oversight and control to ensure duties are properly fulfilled.

Special Educational Needs

16. 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. It will ‘name’ a school or type of school which the child will attend.
17. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. This includes the content of EHC plans. We refer to it as the SEND Tribunal in this decision statement.
18. 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 restriction applies from the date the appeal right arose to the date of the appeal hearing.

Home Bridging Team

19. The Council’s Home Bridging Team (HBT) support pupils with an EHC Plan who are not on roll at a school. The Council says the team consists of skilled professionals, including teachers experiences in supporting pupils with SEND. The HBT offer a range of provision and bespoke packages including tuition within the home or online.

Good administrative practice

20. The Ombudsman has issued guidance on good administration called “Principles of good administrative practice”. The guidance says we expect councils to be open and accountable. This includes keeping proper and appropriate records.

Discretion to investigate

21. As described in paragraph 18, the Ombudsman cannot investigate any complaint which is ‘inextricably linked to the matters under appeal’. I note that events in this complaint coincide with appeals lodged by Mrs X to the Tribunal.
• The first taking place between April 2022 - September 2022, where Mrs X appealed the Council’s decision not to assess Y.
• The second taking place between January 2023 - June 2023, where Mrs X appealed the Council’s decision not to issue Y with an EHC Plan.
• The third ongoing appeal, where Mrs X is appealing Sections B, F and I of Y’s EHC Plan.
22. I do not consider that Mrs X’s complaint is inextricably linked to matters appealed to the Tribunal in April 2022 nor January 2023. This is because Mrs X’s complaint centres around the Council’s failure to provide alternative education after she says Y became too ill to attend school, and these appeals were regarding the Council’s decision not to assess, and not to issue Y with an EHC Plan.
23. However, I do consider the ongoing appeal to be inextricably linked to matters Mrs X is complaining about. This is because Mrs X is appealing section B, F and I of Y’s EHC Plan, and seeks an EOTIS package for Y. As per paragraph 17, the restriction applies from the date the appeal right rose, which is when Y’s EHC Plan was issued in September 2023. Therefore, this limits the scope of my investigation from October 2021 – August 2023.

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What happened

24. I have included a summary of some of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place. This does not mean that I have not considered all of the evidence available to me.

Background

25. Mrs X’s child, Y, has a diagnosis of Autistic Spectrum Disorder. Leading up to events set out below, Y was on the roll at School A.

Events thereafter

26. The Council says it was first notified of Y’s difficulty attending School A in October 2021, when Mrs X made a request for an EHC Needs Assessment. The request set out that Y had begun to struggle with accessing full time education and details the support School A were implementing to support this.
27. The Council says it considered the request for an EHC Needs Assessment and concluded that an assessment was not required at that time. Mrs X appealed the Council’s decision not to assess Y, and the Tribunal ruled that an assessment should begin. A EHC Needs Assessment for Y took place in July 2022. The Council says that during the process, an Educational Psychologist assessment was refused by Mrs X.
28. In September 2022, Y was awarded a place at School B, and it is understood that Y did not attend. The Council says that as Mrs X declined the Educational Psychology assessment; the assessment concluded and the Council decided there was insufficient information to issue an EHC plan.
29. The Council says that during this time, meetings were held with members of School B and Mrs X to provide support and encourage Y’s return to education.
30.  
31. Mrs X raised a complaint with the Council and it says it investigated the families concerns regarding attendance and Y’s inability to attend school. The Council says it considered evidence provided by Mrs X, including, but not limited to, Y’s attendance report and advice provided by School A and that it did not conclude that Y was too unwell to attend school. The Council says the evidence provided by Mrs X detailed Y’s special education needs and the difficulties presented by attending school but did not state that Y was too unwell to attend.
32. The Council says the evidence provided by Mrs X recommended a ‘reduced timetable with to process and recover’. The Council concluded it had not received sufficient information to evidence that Y was unable to attend school, and that school staff liaising closely with the family and attendance services were considered an appropriate approach. The Council says there was not sufficient evidence that it had a duty to arrange alternative education and it encouraged the family to liaise with the school so that an integration plan could begin.
33. Mrs X appealed to the Tribunal against the Council’s decision not to issue Y with an EHC Plan. It is understood that during the appeal, the Council sought an order for Y to be made available for an EP assessment, which was granted. Once the EP report was received, the Council says it reconsidered its position and agreed to issue an EHC Plan for Y.
34. A draft EHC Plan was issued in July 2023, and then a final EHC Plan in September 2023. In Y’s ECH Plan, a placement was named by type; a mainstream school with an additional resourced provision, as no local settings were able to offer Y a place. The Council says it acknowledged that Y required interim provision and in September 2023, a referral was made to its Home Bridging Team (HBT) to secure the provision detailed in Y’s EHC Plan. The Council says Mrs X refused the support offered by the HBT.
35. Since issuing Y’s EHC Plan, the Council says it has not yet been able to secure a suitable school placement for Y and has therefore arranged suitable alternative provision through its HBT. The Council says the HBT has continued to liaise with Mrs X and the family, however the interim support has been refused to date.

Analysis

36. The Council first became aware about issues surrounding Y’s attendance to school in October 2021.
37. As per paragraph 7, councils 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”.
38. The Courts have said it is for a council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.

October 2021 - August 2022

39. It is noted that School A, where Y was on the roll to attend at the time is located in Solihull and as such, Solihull remained responsible for monitoring and supporting Y’s attendance. In November 2021, the Council requested information from Solihull regarding Y which it received some days later.
40. The information included a Specialist Autism Screener Report for Y, minutes from a meeting held in November 2021 attended by the Attendance and Welfare Officer, Head Teacher and a member of Solihull’s SENCo team, Y’s attendance record, and education advice about Y at school.
41. Of note, in the minutes from the meeting held in November 2021, it is acknowledged that a plan was in place to get Y back into school. It was agreed at this meeting for Y to attend school on a reduced timetable to support their reintegration. The additional information supplied by Solihull also demonstrates it was making reasonable adjustments and referring to its attendance services to support Y.
42. I understand that Mrs X maintains that Y was too ill to attend school at this time, but the Council did not share this view on consideration of the information. Rather the evidence demonstrates that there was a plan in place to support Y’s reintegration back into school, and as such, it maintained that the education offered to Y at the time was reasonably practicable for Y to access. Whilst I acknowledge Mrs X’s view that Y was too ill to attend school, the Council was entitled to decide that the education offered to Y was reasonably practicable to attend and therefore did not trigger its duties under section 19 to provide alternative education. I have not made a finding of fault for this period.

September 2022 – August 2023

43. In September 2022, Y was on the roll at School B, and it is understood that Y did not begin attending. From the evidence available to me, in November 2022, the Educational Psychologist sought information from Mrs X to establish what was described as the ‘current push/pull factors relating to Y’s non-attendance at school’. However, gathering this information, alongside completing the assessment was delayed by Mrs X’s original decision to refuse an Educational Psychologist’s assessment.
44. In December 2022, the Council liaised with the Academy Trust, again maintaining that Y had not been medically signed of as unfit to attend school and that it otherwise expects a continued effort from School B to support Y’s integration and that usual attendance protocol should stand.
45. As set out in paragraph 15, Council’s should work with parents and schools to draw up plans to reintegrate children to education as soon as possible, reviewing and amending plans as necessary. I have not seen evidence of a working plan, drawn up with the involvement of the Council, to integrate and support Y’s attendance at School B like there was in place when Y was on the roll at School A. As Y was on the roll at a new school, this presented an opportunity to review matters which were ongoing to this point. This was a missed opportunity to explore perhaps what ‘had’ and ‘had not’ successfully worked to date, what new support may be available at School B, and to consider up to date input from Mrs X. Here I have made a finding of fault.
46. This is not to say that there was a complete absence of a plan, as in February 2022, School B confirmed that it continued to engage with Mrs X and the family and was building relationships towards getting Y to attend some days in school. Instead, the evidence demonstrates a missed opportunity by the Council in line with recommendations our service have made in our published guidance. The guidance also says that Council’s should put the chosen action into practice without delay to ensure the child is back in education as soon as possible, which I accept could not have been done without such a review taking place, and an agreed action plan.
47. And so I must consider, how has this impacted Y and Mrs X? We cannot say whether a review undertaken in September 2022 would have successfully led to Y’s integration at School B. On balance, given that previous efforts to reintegrate Y at School A had not led to an improvement in their attendance, I do not find that the absence of a review to be a significant factor in Y’s attendance issues at School B. However, I recognise that a lack of process would have led to Mrs X and Y feeling frustrated and unsupported by the Council’s approach at the time.
48. Mrs X later complained to the Council, and it investigated her concerns about a failure to provide alternative education. The Council considered the information provided to request an EHC Needs Assessment, including the report provided by Mrs X, and additional reports provided by the Educational Psychologist and Consultant Community Paediatrician. The Council again reiterated that on consideration of the evidence, it did not consider that Y was too ill to attend school, and that there was no valid or lawful reason why Y’s attendance at School B had not been secured.

Summary

49. I have not found any evidence that the Council’s section 19 duty was triggered by Y’s absence at either School A or School B. The Council has maintained that the evidence available to it demonstrated that Y was not too ill to attend, and that the placements available to Y throughout events in this complaint remained available and accessible to him. I understand that Mrs X does not agree, but the evidence available to me does not conflict with this decision by the Council. The Council is entitled to reach this view, and we cannot criticise a decision otherwise made properly. This does not negate that Y has unfortunately been without education throughout events in this complaint, but I have not found a basis to criticise the Council for this.
50. I have found fault for the Council failing to review Y’s circumstances, and to work with either/both Mrs X and School B to draw up plans to support Y’s integration at School B. This is in line with our guidance issued in 2022, and I consider this a missed opportunity by the Council to offer additional help and support that would have been at its disposal. There is scope here to provide a remedy to Mrs X and Y to acknowledge the frustration experienced.

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Agreed action

51. As per our guidance on remedies, where we decide it is appropriate, we will normally recommend a remedy payment for distress of up to £500. When making such awards, we must consider the particular circumstances of the case. In these particular events, I note that Y had not been attending School A since October 2021, and had since enrolled at a new school, School B. Mrs X had also been liaising regularly with the Council, and despite not coming to an agreement with the Council about its duty to provide alternative education, I acknowledge a lack of process when Y newly enrolled at School B that have caused Mrs X and Y to feel unsupported and frustrated. Therefore, I have arrived at the highest end of the remedy award.
52. To prevent similar occurrences, and remedy injustice identified in this complaint, the Council have agreed to:
1. Pay Mrs X an amount of £500 to acknowledge distress caused as a result of not reviewing Y’s circumstances to aid in further planning and support to reintegrate him.
2. Write Mrs X and Y an apology based on the injustice described in point a above. The apology should be in line with our published guidance on remedies.
3. The Council should review its alternative education policy alongside our published guidance ‘Out of school, out of sight?’ July 2022. It should consider the recommendations we made, specifically that around reviewing and amending plans as necessary, and how it can incorporate these recommendations into its policy.
53. The Council will complete actions a and b within one month of the Ombudsman final decisions and action point c within three months of the Ombudsman final decision.

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Final decision

54. I have concluded my investigation having made a finding of fault. Although I found Y’s absence did not trigger the Council’s section 19 duty to provide alternative education, I found that it failed to review Y’s circumstances when he enrolled at a new school in September 2022. There was a missed opportunity by the Council to review the matter and contribute to any forward planning and further support. The Council has agreed to my recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman