Summary: Miss X complains the Council has not dealt properly with her daughter Y’s special educational needs (SEN). The Council did not comply with statutory guidance. Miss X did not suffer injustice as a result. The Council should review its policy.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council has not dealt properly with her daughter Y’s special educational needs (SEN) because it has not provided s19 alternative education since January 2023.
2. Miss X says her daughter has suffered loss of educational and SEN provision, and the family has suffered avoidable distress as a result.

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What I have and have not investigated

3. I have not investigated any events after 13 February 2023 as this is out of the Ombudsman’s jurisdiction as an EHC Plan was issued with appeal rights.

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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 considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)

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How I considered this complaint

7. I spoke to Miss X about her complaint and considered documents she provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
8. 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

Law, guidance and policies

9. 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.
10. 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))
11. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
12. 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])

Limits on jurisdiction

13. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
14. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
15. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

Statutory Guidance

16. All local authorities should have a written, publicly accessible policy statement on their arrangements for complying with the s.19 duty. The policy should link to related services in the area, for example:
• special educational needs and disability (SEND) services
• child and adolescent mental health services (CAMHS)
• education welfare and attendance improvement services
17. Where possible, the child’s health needs should be managed by the home school so that they can continue to be educated there with support, and without the need for the intervention of the local authority. However, as soon as it is clear the home school can no longer support the child’s health needs and provide suitable education, the school should speak to the local authority about putting alternative provision in place.
18. All medical evidence should be used to better understand the needs of the child and identify the most suitable provision. Local authorities, working closely with the child’s home school, medical practitioners (such as a GP or consultant) and the child’s family, should make every effort to minimise the disruption to a child’s education by identifying the most suitable provision.
19. Where specific medical evidence, such as that provided by a medical practitioner, is not readily available, the child’s home school or the local authority should consider liaising with other medical practitioners and consider other evidence to ensure appropriate provision can be arranged as soon as possible. The local authority should review any additional evidence to help them identify the most suitable provision.

The Council’s policy

20. The Council says, “A written recommendation must be obtained from a hospital consultant, senior clinical medical officer or specialist medical team stating that the child is unable to attend school and tuition is appropriate. This is to bring us in line with the guidance Ensuring a good education for children who cannot attend school because of health needs Statutory guidance for local authorities, January 2013.”

What happened?

21. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
22. The Council had worked with Y’s school to try to resolve Y’s attendance problems during 2022.
23. Miss X says Y has been out of full-time education since December 2022.
24. Y’s school made a referral to the Tuition service on medical grounds that Y was not being able to attend school due to anxiety and sensory issues.
25. The Council decided in February 2023 it would not provide alternative education for Y because there was no medical evidence to meet the threshold for tuition.
26. The Council attempted to gather information from medical professionals to confirm that Y was too ill to attend school.

Analysis

27. The Council has a statement on its website outlining its responsibilities in relation to s19 alternative education provision. This statement does not include what evidence the Council will consider in relation to making provision. There is also an ongoing review of alternative provision being undertaken by the Council.
28. The statutory guidance does not restrict the seniority of medical practitioner whose evidence can be considered. The Council requiring a written recommendation from a hospital consultant, senior clinical medical officer or specialist medical team fetters its discretion about whether to provide alternative education in any particular case. This is fault by the Council. Miss X did not suffer any injustice as a result because she did not provide medical evidence to the Council for it to consider up to February 2023.
29. The Council says, “Alternative provision was not explored in January 2023 because:
• No medical evidence was available which would meet the criteria for a referral to the tuition Service.
• The commissioning of an alternative provision is not a task undertaken by Education Welfare Service (EWS), particularly when this relates to a pupil of this age. This would be an option that would be discussed by SEND colleagues on the cusp of an EHC Plan being awarded.
• School and parent were working together to support Y in the school setting and an alternative provision had not been discussed.
30. The Council’s complaint response partially upheld Miss Y’s complaint. It said, “… that it hasn’t yet been determined whether it is reasonably practicable for Y to attend the mainstream provision specified in the EHC plan. This should have been clarified at an earlier stage and prior to discussions taking place about suitable alternative education.”
31. The Council says its SEN service and the education welfare service didn’t have an agreed view of the situation in relation to attendance and this created avoidable delay and confusion about respective roles and responsibilities.
32. I have seen the referral form from Y’s school in which it raised problems with the Council in accordance with guidance in paragraph 17 above.
33. Records of telephone conversations from the Council show the request for Tuition was rejected because there was no supporting evidence from CAMHS consultant.
34. Miss X submitted supporting medical information to the Council in June 2023.
35. Between January and February 2023, the Council did not properly consider whether Y could attend the educational provision made for her. This is fault by the Council.
36. Miss X and Y did not suffer any injustice, because on the balance of probabilities, the Council would not have provided alternative education in January and February 2023.

Action by the Council

37. The Council has identified necessary service improvements as a result of Miss X’s complaint, including the following:
• head of SEND and interim head of pupil engagement to ensure staff are aware of respective roles / responsibilities in relation to attendance related issues for children / young people with EHC plans.
• head of SEND and interim head of pupil engagement to arrange for other attendance related cases to be reviewed in order to provide assurance appropriate arrangements are in place.
• the head of SEND to review current SEND panel arrangements and membership.
38. I do not consider the Council’s action to be an adequate remedy.

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Agreed action

39. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Review its policy regarding medical evidence and children who cannot attend school because of health needs and include the relevant information on its website.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have found fault by the Council, which did not cause injustice to Miss X. I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman