Summary: There was no fault in how the Council considered its general section 19 duty, to provide alternative education provision for Mrs X’s son when he stopped going to school. Nor was there any fault in the time it took in issuing a decision it would not make an Education, Health, and Care Plan for Mrs X’s son. However, the Council was at fault in how it dealt with Mrs X’s complaint about these matters and that caused her an injustice. The Council have agreed to my recommendation on a remedy for this injustice.

The Ombudsman’s role and powers

4. 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)
5. 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)
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 Mrs X and considered the information she provided.
8. I considered the Council’s comments and the documents it provided.
9. I considered the special educational needs and disability (SEND) code of practice which sets out legislation and guidance that councils have a duty to follow.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments before making a final decision.

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What I found

What should have happened

General section 19 duty

11. 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.
12. 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))
13. The education provided by the council must be full-time unless the council determines that 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)
14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that 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)
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])

Focus report- Out of school, out of sight?

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.
17. We made several recommendations and in so far as this complaint is concerned, we said the Council should:
• 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, and;
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

Timescales and process for EHC needs assessment 

18. 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 SEND Regulations 2014. It says the following: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• 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.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
19. Where the Council cannot obtain advice from a school because of the summer holiday period, SEND regulations (2014) allows the Council to disapply the usual time limits where it decides to conduct an EHC needs assessment.

Appeal rights

20. There is a right of appeal to the Tribunal against:
• a decision not to carry out an EHC needs assessment or reassessment, and;
• a decision that it is not necessary to issue a EHC Plan following an assessment.
21. We can only look at matters that do not have a right of appeal, and that are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started, and;
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

What happened

22. Mrs X told me Y started year seven in 2022 and was regularly attending school up until the October half term. In late November 2022, Mrs X told the Council that Y had stopped going to school because of anxiety and could not settle in the larger secondary setting. At the same time, Mrs X asked the Council for alternative provision (AP) for Y.

General section 19 duty

23. In December 2022, Y’s school also sent the Council a referral and in late December, the Council considered whether Y needed support from an emotionally based school avoidance (EBSA) officer.
24. Following this, a panel considered Y’s case. The case notes reflect the Council asked Y’s school to consider a referral to an NHS triage service to ensure Y could obtain any necessary mental health support. The notes also show it was aware Y was waiting for a medical assessment and it advised Y’s school to submit a further assessment if the school remained concerned after this assessment. The Council decided not to allocate an EBSA officer.
25. In mid-January 2023, the Council held an internal meeting where they discussed Y’s case, following which, they discussed additional support options directly with Y’s school, to try and encourage Y to return to school.
26. In early February, the Council received another referral relating to Y, and Mrs X also sent the Council additional medical information. According to the case notes, the Council then agreed it would provide Y with AP.

Spring term 2023

27. In early March, the Council met with Mrs X and agreed Y’s AP would start with online lessons rather than a tutor at their home and this was in line with Mrs X’s wishes. The Council also said the school would monitor Y’s progress through weekly reports. Mrs X was happy with the level of provision the Council had secured at this stage.

Summer term 2023

28. In mid-May, Mrs X told the Council that Y started to have trouble with how the online tutor was providing support and this was beginning to affect how much tutoring he accessed.
29. Mrs X asked the Council for advice and around this same time, Mrs X also told the Council she thought it unlikely Y would be able to return to school in September. Mrs X and the Council agreed they would closely monitor the situation, but Y’s AP would continue being delivered by the initial tutor service.
30. The Council and Mrs X also had an exchange about how this provision may be delivered from September onwards. Alongside this the Council was aware Mrs X had asked it to assess Y for an EHC Plan.
31. Also in May, Mrs X made a complaint to the Council as she was unhappy with the Council’s earlier responses about her request for an EHC Plan.
32. In June, Mrs X told the Council that things had not improved for Y as they had not gone back to their lessons. Shortly after this the Council arranged another tutor service to start before the end of the summer term. It also told Mrs X it would plan for the new tutoring service to provide AP for Y from September onwards.

Autumn term 2023

33. In late August, a local Councillor made another complaint on Mrs X’s behalf. In response, the Council spoke to Mrs X about her complaint, as well as the AP it was arranging for Y.
34. Mrs X was content with the offer of AP the Council had been making up until then. However, following this meeting, and in line with Mrs X’s wishes, the Council planned for additional education provision.
35. This additional provision was intended to prepare Y for transition to either a mainstream school or specialist setting. The evidence also shows, at this stage, the Council were still waiting for an Educational Psychologist to review Y’s case for an EHC Plan.

EHC needs assessment 

36. The Council told me alongside it’s contact with Mrs X relating to Y’s alternative provision, in late February 2023, Mrs X asked it to consider assessing Y for an EHC Plan.
37. After Mrs X made her request, the Council consulted with other services in early March. In early April, it initially told Mrs X it would not assess Y for an EHC Plan. In the decision letter the Council sent, it told Mrs X she could appeal this decision to the SEND Tribunal.
38. Mrs X lodged an appeal and in late July, after a further review of the request, the Council agreed it would carry out an assessment, to decide if it would issue an EHC Plan.
39. In early November, 14 weeks after the decision to assess Y, referred to in paragraph 38, the Council told Mrs X it would not issue an EHC Plan for Y. The Council told Mrs X she could appeal this decision.
40. In response to an earlier draft decision, the Council provided me with additional reasons as to why it reconsidered its earlier decision and then agreed to carry out an EHC needs assessment.

Complaint handling

41. During the complaint process, the Council acknowledged it had poorly handled some aspects of its communication with Mrs X. In response to my enquiries, it said the complaint Mrs X sent it in May (paragraph 31) had been missed. It also said it had subsequently altered the way these complaints are tracked to avoid this happening again.

My findings

General section 19 duty

42. When the Council first became aware that Y was not going to school, it decided it did not need to make any alternative provision for them at that point. The Council gave advice to Y’s school about how it could support them back to school.
43. This was a decision the Council was able to make, and I have not seen any evidence of obvious fault in how it considered this decision. Because of the restrictions on our powers (paragraph four), in the absence of any obvious flaw in the Council’s decision-making, I cannot criticise it, or say that decision was wrong.
44. In February, the Council revisited its earlier decision when it had more information and then decided it owed a general section 19 duty at that point.
45. There was no fault in how the Council then considered its general section 19 duty after that point. It agreed suitable provision in line with Mrs X’s wishes, and at the point when Mrs X asked for additional provision, it responded.

EHC Needs Assessment

46. The Council made two decisions in relation to Mrs X’s request. The first decision was to refuse to assess Y for an EHC Plan. This decision was made within the required time limits and so was not fault.
47. After the Council subsequently agreed to carry out an EHC needs assessment, in late July (paragraph 38), it then ordinarily has a further 10 weeks to issue a decision it would not make an EHC Plan. The SEND regulations allow for this period to be extended in the case where advice cannot be obtained due to the school holidays. The Council complied with the regulations by issuing a decision by week 14 and therefore there was no fault in the time it took to tell Mrs X it would not make an EHC Plan.

Complaint handling

48. The Council acknowledged fault in how it handled Mrs X’s complaint and I note it has already taken steps to address how it tracks complaints. Because of this I do not need to make any recommendations about a service improvement.
49. However, I find there is remaining personal injustice that is unremedied because Mrs X was put to unnecessary time and trouble in pursuing her complaint. The Council have agreed to carry out my recommendation to fully remedy Mrs X’s injustice here.

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Agreed action

50. Within one month of the date of my decision, the Council have agreed it will pay Mrs X £100 for avoidable time and trouble in handling her complaint.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation with a finding of fault in relation to complaint handling. That fault caused an injustice and the Council have agreed to my recommendation to remedy Mrs X’s injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman