Summary: Ms X complained about the level of support provided by the Council when her child was out of school. Ms X said her child’s education and mental health was negatively impacted. We have not found the Council at fault.

The complaint

1. Ms X complains:
• The Council did not put in place alternative education for her child when they stopped attending school in November 2022.
• The Council delayed putting in place a package of support for her child which was agreed in September 2023.
• The Council refused carry out an Education, Health and Care needs assessment for her child.
2. Ms X said she had to pay for tutors for her child and they have missed out on educational provision since November 2022.

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The Ombudsman’s role and powers

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 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)
4. 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)
5. 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.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. 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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What I have and have not investigated

8. I have not investigated Ms X’s complaint that the Council reused to carry out an Education, Health and Care needs assessment for her child. This is because the Council issued her with a decision with appeal rights. Ms X could have challenged the Council’s decision at the SEND Tribunal.

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How I considered this complaint

9. As part of this investigation, I considered the information provided by Ms X and the Council. I discussed the complaint over the telephone with Ms X. I made enquiries with the Council and considered the response received. I sent a draft of this decision to Ms X and the Council for comments.

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What I found

Law and guidance

10. 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.
11. 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)
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])
13. While there is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion, local authorities should ensure that such pupils are placed as quickly as possible. (Statutory guidance ‘Alternative Provision’ January 2013)
14. Alternative provision includes the education provided where pupils have been directed by their schools to off-site provision to improve their behaviour. Schools have the power to direct a pupil off-site for education to improve their behaviour. This applies only to schools maintained by the local authority, not Academies. Though the regulations and guidance do not apply, they can provide Academies with an example of good practice. Academies can arrange off site provision for similar purposes under their general powers set out in their Articles of Association. (Statutory guidance ‘Alternative Provision’ January 2013)
15. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
16. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says if the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.

What happened

17. There has been extensive correspondence between Ms X, and the Council since early 2023. In this section of the statement I summarise key events but I do not refer to every single contact and communication.
18. Ms X’s child, Y, attended a mainstream school, School W. In November 2022, there was an incident involving Y which met the threshold for Y’s expulsion from School W. The school instead sought to move Y off-site to an alternative provider, Provider Z, as a result of Y’s escalating behaviour. This move was intended to give Y support and help reintegrate Y back into school and to help with behavioural issues.
19. The decision to send Y off-site was considered by a multidisciplinary panel made up of headteachers in the local area and officers at the Council. The panel decided based on the evidence available that the off-site placement was suitable for Y.
20. Ms X did not want Y to attend this placement as Y had mental health issues and suspected autism and these were not behavioural problems. Ms X wanted Y to attend a different placement at Provider Z which was designed for pupils with medical, not behavioural needs. As a result, Y did not attend the placement and Ms X started to pay for tutoring for Y from January 2023.
21. In March 2023, Ms X asked the Council to carry out an EHC needs assessment for Y. The Council issued Ms X with a decision in April 2023, which said it would not carry out an assessment. The decision gave Ms X appeal rights to challenge this. The Council also agreed to a meeting with other agencies to discuss a way forward for Y.
22. In late June and July 2023, the Council held a meetings with other professionals who were engaged with Y. The outcome of these were that the part of Provider Z which worked with pupils with medical issues would put forward an offer of education and this would be considered to see if it was suitable for Y.
23. In late August 2023, Ms X complained to the Council. Ms X complained Y had been without support after being referred to Provider Z in November 2022. Ms X said she asked the Council to carry out an EHC needs assessment but it had refused. Ms X said from January 2023, she had been paying for tutors for Y.
24. In early September 2023, Y was offered a place at the part of Provider Z which worked with pupils with medical issues, however Ms X declined this as the family had lost trust with Provider Z. Ms X sent the Council a letter from Child and Adolescent Mental Health Services (CAMHS) which the Council interpreted as meaning Y could temporarily not attend school. As a result the Council offered a package of education to Y on 11 September 2023. This was to consist of a specialist teacher for Y to develop emotional regulation skills and life skills and tutoring.
25. Initially the Council visited Y on 20 September 2023 to discuss the package of support and offered dates for provision. Ms X told the Council that she wanted to use the tutors Y currently had, which she had paid for, to carry out the tutoring as part of the package of support. The Council agreed to this but told Ms X the tutors would have to meet its compliance checks.
26. In late September 2023, the Council responded to Ms X’s complaint. The Council said it did not think an EHC needs assessment was necessary for Y. It had allocated Y a specialist teacher who would help to fully understand what support Y needed. The Council said it had offered Y a package of education in early September 2023.
27. In early October 2023, the Council allocated Y a specialist teacher. Ms X also asked the Council to consider her complaint at the next stage of its process. Ms X said:
• The Council had not given Y the appropriate support and Y had been out of education since November 2022.
• There was a delay in putting in place a tutoring package for Y which was only agreed by the Council on 11 September 2023.
• The Council was forcing Y to attend a behavioural school and despite a psychologist advising against this.
28. In late October 2023, the Council provided its final response to Ms X’s complaint. The Council said:
• Provider Z completed assessment work with Y and the Council’s alternative education panel decided Provider Z was appropriate for Y at this time.
• It had now agreed to offer a package of education to Y.
• Recent medical evidence recommended mainstream education for Y. The Council said School W would take Y for discussion at an alternative education panel for a managed move to another mainstream school.
• Ms X’s tutors had been unable to evidence or provide the compliance information they needed to. The Council said it would look for other tutors for Y.
29. The Council contacted another tutoring provider in early November 2023 to deliver Y’s tutoring. Y’s package of support was fully in place by 23 November 2023.
30. In mid-December 2023, the Council told Ms X it had reviewed the evidence from Y’s specialist teacher and medical letters and decided mainstream education was suitable for Y. The Council said it would be ending its package of alternative education for Y and would discuss this with School W to ensure there was something in place to meet Y’s needs.
31. From January 2024, Y started to attend a placement at Provider Z with the view to integrate them into an alternative mainstream school to School W.

Analysis

The Council did not put in place alternative education for Y when Y stopped attending school in November 2022.

32. The Council did not put in place alternative provision for Y as it considered the placement off-site directed by School W was suitable and Y was able to attend this.
33. In November 2022, School W decided to move Y off-site to improve Y’s behaviour instead of permanently excluding Y. A multi-disciplinary meeting was held which reviewed this decision and decided this was a suitable placement for Y. The Council said Y’s referral to Provider Z followed previous breaches of School W’s behaviour policy and based on the evidence at the time it considered this was a suitable placement for Y.
34. I have not found the Council at fault for how it decided the placement was suitable. The Council considered the evidence from the school and Y’s record of behaviour along with the views of the multi-disciplinary panel who looked at the suitability of the placement.
35. Ms X disagreed with the suitability of this placement and decided to pay for tutors for Y instead of sending Y to the placement. This was Ms X’s decision and I do not consider the Council should refund the costs for this tutoring.

The Council delayed putting in place a package of support for Y which had been agreed in September 2023.

36. In early September 2023, the Council agreed to put in place a package of education. This was after Ms X sent it medical evidence which the Council interpreted as meaning Y could temporarily not attend school.
37. The Statutory guidance says the Council should put in place this package as soon as is reasonably practical. The package was not put in place until 23 November 2023. Y’s specialist teacher was put in place in early October 2023. The delays in putting in place this package were due to sourcing tutors. Initially, Ms X told the Council she wanted to put in place the tutors she was using to tutor Y. The Council agreed to this if these tutors could meet the Council’s compliance checks. The tutors were not able to provide the necessary information to meet the Council’s compliance checks so the Council had to find new tutors. The Council did this shortly after it became apparent that the tutors could not provide the necessary information.
38. While there was some delay in putting in place the full package of support for Y from early September 2023, I do not think this was as a result of fault by the Council. The Council tried to work with Ms X to use the tutors she preferred. When it became apparent it would not be possible to use these tutors the Council sourced alternatives.

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Final decision

39. I have completed my investigation and found there was no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman