Summary: Mrs X complained that the Council failed to provide suitable education to her daughter who was out of school. We have found that there was no fault in the way the Council considered whether it should provide alternative education. There was delay in how it responded to Mrs X’s complaints, but this did not cause an injustice which requires further investigation. We have therefore completed our investigation and are closing the complaint.

The complaint

1. The complainant, Mrs X, complained that the Council failed to provide appropriate education for her daughter, Y, since October 2022 when she became too anxious to attend her secondary school (School B).
2. In May 2022, Mrs X says that Y received neurodivergent diagnoses, and was described as having complex needs.
3. Mrs X says she has been caused avoidable distress and frustration and Y has missed receiving suitable education.

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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.
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal… such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
7. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b)).
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).
11. 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

12. I have investigated the Council’s actions since October 2022 to September 2023 when the Council refused to assess Y’s special educational needs (SEN). At this point, Mrs X had a right of appeal to the SEND Tribunal, which she used.
13. Mrs X has also complained to the Governors of School B about the lack of appropriate educational provision and support. We cannot investigate the actions of School B. But I have taken into account the background information provided in School B’s complaint response to Mrs X to assess how the Council has acted.

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How I considered this complaint

14. I made enquiries of the Council and spoke to Mrs X on the telephone. Mrs X sent a copy of the SEND Tribunal decision of 30 January 2024.
15. I issued a draft decision statement to Mrs X and to the Council. The Council disputed the provisional findings of fault, so we reconsidered all the information, and issued an amended draft decision statement. I have taken into account the Council and Mrs X’s further comments when reaching my final decision.
16. I also took into account a previous complaint (23 009 858) published last year recommending the Council reviewed its alternative education policy.

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What I found

Inability to attend education due to health needs

17. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
18. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
19. 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])
20. 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
21. 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.

22. 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 their duties are properly fulfilled.

Attendance

23. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months.

The Council’s policy

24. Based on information from a previous investigation (22 008 214), under the Council’s Medical Provision guidance, the Council can arrange Medical Tuition for children unable to attend school because of mental health or anxiety reasons. The guidance says this service is usually delivered individually or in small groups dependent on need. Any decision on whether alternative education should be provided must be made by the Council’s Inclusion Support Panel.
25. The Council’s policy says it is for schools to make a referral to the Inclusion Support Panel when they consider alternative education is required.

Key facts

26. Y transferred to School B, a mainstream secondary school, in September 2022. Y’s attendance decreased over the course of the winter term (September to December 2022), until she eventually stopped attending altogether.
27. In November 2022, Mrs X wrote to the Council about her concern that Y was having difficulty in attending school. Mrs X asked for alternative education, and referred to Y’s neurodivergent diagnoses, providing a copy of a May 2022 report from the local Health Trust, stating Y had a diagnosis of attention deficit hyperactivity disorder (ADHD) and possible autism. A copy was sent to Y’s General Practitioner (GP).
28. Mrs X attended a meeting with staff from School B in October and November 2022 when she says it offered a part-time table.
29. In November 2022, Mrs X agreed that Y would try to attend a specialist programme to support her attendance, which was arranged by School B.
30. In December 2022, School B contacted the Council in relation to Y’s ongoing absences but did not make a request for alternative provision.
31. In January 2023 a report by a clinical mental health team referred to Y’s learning difficulties, anxiety and that she had ‘complex needs’, but did not say that Y was unable to attend school. The plan then was to try to reintegrate her back into classes.
32. In February 2023 the Council emailed Mrs X in respect of her November 2022 letter. It explained it had made enquiries of its special educational needs (SEN) team and School B about Y’s circumstances. It said it had also sought further updates from School B, following a GP’s appointment. The Council said there was no evidence to indicate Y was unable to attend School B, and that it was able to meet Y’s needs with the additional support it had offered. Mrs X says that School B did not provide any evidence to the Council about Y’s needs and how it was meeting them. It accepted what School B said at face value.
33. The Council invited Mrs X to submit any new and relevant information. Mrs X submitted a formal complaint to the Council about its decision.
34. During March and April, Mrs X contacted School B on several occasions to say the attempts to accommodate and support Y were not working. In May 2023, School B invited Mrs X to a meeting at her home to discuss the situation, which she declined. Mrs X has explained that she felt uncomfortable attending a meeting, because of her own needs and personal circumstances, and it was difficult because she was looking after Y.
35. The Council responded to Mrs X’s complaint in May. It said it had considered its legal duty to arrange alternative education. It had decided there was no duty to arrange alternative education as the evidence it had received from School B indicated that Y’s needs could be met there. It said that School B had asked the Council to start formal enforcement action for the ongoing non-attendance. It offered to meet Mrs X to discuss matters.
36. In June 2023, Mrs X made a request for a SEN needs assessment of Y. Y was still not attending school. Mrs X asked School B to provide online teaching. Mrs X says School B was unwilling to do this because it would discourage Y attending. For the summer term of 2023, School B produced a support plan to try to help Y back into school.
37. In July 2023 the Council received the letter from Y’s GP. The letter said Y’s medical diagnoses were not reasons for the school absences. It noted that Y’s case was complex with multifaceted emotional and educational needs, but it did not say that she was medically unfit for school.
38. In July 2023, School B wrote to the SEN department setting out all the adjustments it had made to try to encourage Y to attend school.
39. Mrs X received a fixed penalty notice for non-school attendance at the end of July. For personal reasons, she did not challenge the notice to avoid criminal prosecution. Instead, she made a formal complaint to the Council.
40. In August 2023, the Council provided its final response to Mrs X’s complaint. It said it had considered the medical evidence and the information from the school which indicated Y’s needs could be met in mainstream education. It said it would reconsider its position based on any future assessments and evidence, and encouraged Mrs X to meet the Council and School B to discuss support for Y.
41. In August 2023, the Council told Mrs X that it would not proceed with a SEN assessment. Mrs X appealed and in January 2024 the SEND Tribunal upheld the appeal. The Council has since issued a final EHC Plan. Y is now placed at a special school.

The Council’s further comments

42. In summary, the Council says that there was no medical, or other, evidence to suggest Y should not be attending School B. The Council notes that Y attended successfully for the first six weeks of the first term in 2022.
43. The Council points out that Mrs X was unwilling to meet, which might have helped resolve issues sooner. It says its position is that Mrs X presented no medical evidence to support alternative education on medical grounds, and that School B was offering appropriate support. The Council also invited Mrs X to provide more medical information.
44. The Council says that School B and the Council always made it clear that a part‑time timetable was not on offer. But Y was offered shorter school days.

Mrs X’s further comments

45. Mrs X says she preferred communication in writing and had difficulty in attending meetings for personal reasons. Mrs X considers that, if the Council required more information from her, it could have written to her directly. Mrs X says that the Council was aware of Y’s diagnoses because she told it in November 2022 when she wrote asking for alternative education.
46. Mrs X says that Y’s needs have created barriers to learning and accessing School B, and the curriculum.
47. Mrs X says that Y could not engage with School B’s efforts because the support offered did not meet Y’s SEN needs.

Findings

48. We cannot investigate events after August 2023 because Mrs X used her right of appeal to the SEND Tribunal against the Council’s decision not to start an assessment of Y’s special educational needs. This means we have looked at events in the 2022/23 academic year.
49. The law also prevents us from investigating the actions of School B, although we can look at how the Council took account of information it received from School B. Mrs X has complained to the Governors of School B about its actions.
50. Mrs X first told the Council about Y’s non-attendance in November 2022, and the Council was again alerted to the issues when School B contacted it about the issue in December 2022.
51. We note that Mrs X regularly updated School B about Y’s circumstances, but School B considered it remained able to meet Y’s needs throughout the 2022/23 academic year. School B did not make a direct referral to the Council for alternative education under the local procedure and recorded the absences as unauthorised.
52. As part of its complaint response, the Council invited Mrs X to submit more medical evidence and alerted her to its SEN service. It also suggested meeting her. These actions reflect good practice. Mrs X has provided reasons why she was unable to meet, preferring instead to communicate in writing.
53. The Council also sent warnings to Mrs X that it would enforce non-attendance by way of a fixed penalty notice. When the Council issued the fixed penalty notice Mrs X paid it without challenge to avoid prosecution. That was her decision to make.
54. Ultimately, the Council found there was no medical evidence to indicate Y was medically unable to attend school, and decided that School B was offering support which meant it considered School B was accessible and available to Y.
55. As such, the Council decided that it was not under a duty to arrange alternative education. In making this decision, the Council has shown that it took account of the relevant law and the individual circumstances of the case. This included consideration of Mrs X’s written representations, as well as relevant evidence from its SEN team, clinical evidence, and School B.
56. I consider this was a decision the Council was entitled to reach based on the evidence and facts. I have not seen any evidence of fault in how the decision was made or communicated to Mrs X. This means we cannot question the Council’s decision.
57. However, I consider the Council should have provided more timely responses to the representations and to the complaints which Mrs X raised. Mrs X first raised her concerns in November 2022, but did not receive a response until February 2023. Her subsequent formal complaint of February 2023 did not receive a response until late May 2023. Her second stage complaint did not receive a response until August 2023.
58. I consider this is fault. While I accept that this would have caused avoidable frustration for Mrs X, I do not consider this merits further investigation because I cannot say that an earlier response would have led to Y engaging in education.
59. Having reconsidered all the evidence, I find that there has been no fault by the Council in the way it considered whether it had a duty to provide alternative education to Y. I have found fault with the complaint handling, but I do not consider the injustice here merits further investigation.

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Final decision

60. I have completed my investigation with a finding of no fault regarding the Council’s decision not to provide alternative education. I find fault in the Council’s delays in dealing with Mrs X’s complaint, but this did not cause an injustice which merits further investigation.
61. Accordingly, I have completed our investigation and I am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman