Summary: There is no evidence of fault in the way the Council decided it should not arrange alternative educational provision for a child who was not attending school. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Ms P.
2. Ms P complains:

• the Council issued an unsuitable education, health and care (EHC) plan for her daughter, C. As a result of this, Ms P says the Council has been unable to secure an appropriate secondary school placement for her to start in September 2024; and that
• the Council has not arranged alternative provision for C while she has been unable to attend school for health reasons.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.

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What I have and have not investigated

7. I have investigated the second point of Ms P’s complaint, that the Council has not arranged alternative provision for C.
8. I have not investigated the first point of Ms P's complaint, that the Council has issued an unsuitable EHC plan for C. This is because Ms P has used her right of appeal to the SEND Tribunal in this matter. As explained at paragraphs 4 and 5, this means we have no jurisdiction to investigate it.

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How I considered this complaint

9. I reviewed Ms P’s correspondence with the Council, the Council’s case notes and correspondence with other relevant parties, and asked it to clarify several points.

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What I found

10. In March 2023, Ms P asked the Council to carry out an EHC needs assessment for C. In April, the Council contacted Ms P to discuss the process, and Ms P said C had dyslexia and was struggling to attend (primary) school because of anxiety.
11. In May, the Council decided not to assess C. This was because her school had told the Council she was making progress, and that her needs related to a physical health problem for which there was no current diagnosis.
12. Ms P objected to the Council’s decision and said C needed 1:1 support to attend school. The Council noted the school had already referred C for an educational psychologist (EP) assessment, and told Ms P she could resubmit her request once the report was available.
13. The Council also discussed C’s attendance problems with the school. The school said this had become more of a problem since Easter, and that there had been a recent multi-agency meeting, which included Ms P and her social worker. It explained it was sending work home for C, and putting support measures in place to increase her time in school. The school noted C appeared relaxed when she was there and wanted to see her friends, but Ms P had expressed concerns that her return was moving too fast. The school also explained it had arranged for C to see an EP in June, but Ms P had insisted she must also be present.
14. After Ms P requested mediation, the Council agreed to carry out an EHC needs assessment for C in June.
15. In July, the EP told the Council he had been unable to see C in school due to her absences, and now intended to do some work with her online. Then, in August, the EP submitted a report to the Council.
16. The Council agreed to issue an EHC plan for C, and issued a draft version in September. Ms P requested amendments to the plan and also enquired about a possible personal budget for C.
17. In November the Council issued an amended draft version of the EHC plan, and also received a formal request for a personal budget from Ms P.
18. In December the school agreed the new draft of the EHC plan was suitable. The Council considered Ms P’s personal budget request but declined it, as it considered C’s needs could be met in a mainstream school. The Council told Ms P it intended to finalise the EHC plan, naming C’s school as her placement. Ms P said she disagreed with this decision and expressed a preference for specialist provision in a different (secondary) school.
19. In January 2024, the Council sent a consultation to the other school, but it responded to says its specialist provision was at capacity. However, in February the Council issued a revised final EHC plan, naming the mainstream part of this school as C’s placement from September, when she was due to enter Year 7.
20. In February Ms P submitted a stage 1 complaint to the Council. She said C had long experienced developmental and physical health problems, and that she had been unable to attend school full time since 2021 because her needs were not being met. Ms P complained the finalised EHC plan was not suitable for C, and that her case had been handled by several different officers. She also complained the Council had not arranged alternative provision or ‘education other than at school’ (EOTAS) for C, despite her being unable to attend school.
21. The Council responded a few days later. It said the correct route for Ms P to dispute the content of the EHC plan was to appeal to the Tribunal, which it noted she had now done. The Council also explained it was of the view C should be attending school. It noted the support the school had put in place and that C appeared relaxed while she was there. The Council said it did not agree an EOTAS package was appropriate.
22. Ms P then submitted a stage 2 complaint. She said she had highlighted what she considered to be inaccuracies in the draft EHC plan several times, but complained the Council had not made the relevant amendments. Ms P also reiterated her view that C was unable to attend her current school, and said it would not be beneficial for her to return there. She said the school could not correctly determine whether it could meet C’s needs because the EHC plan was inaccurate, and asked for information about what alternative provision was available in the area.
23. The Council responded in March. It said it had made amendments to the initial draft of the EHC plan, but had not received Ms P’s comments in time to make changes to the final versions. The Council reiterated its view C was able to attend school with the support the school had put in place, and said it had refused Ms P’s request for a personal budget for this reason. It said it was open to the school to make a referral to the local hospital school, if it felt C was to unwell to attend, but that such a referral would need to be supported by medical evidence.
24. Ms P then referred her complaint to the Ombudsman.
25. In April the school informed the Council it would use the additional funding it was receiving because of C’s EHC plan to arrange alternative provision, albeit the school noted again it believed it could meet C’s needs.

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Legislative background

26. 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. We call this the ‘s19 duty’.
27. The statutory guidance 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”.
28. 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)
29. 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’)

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Analysis

30. Ms P complains the Council has not arranged alternative provision or agreed an EOTAS package for C, despite the fact she is unable to attend school.
31. The Ombudsman’s role is to review the way councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not taken into account relevant information, or not properly explained a decision it has made. We call this ‘fault’, and, where we find it, we can consider the consequence of the fault and ask the relevant council to address this.
32. However, we cannot make operational or policy decisions on councils’ behalf, and we do not provide a right of appeal against contested decisions. If a council has made its decision without fault, then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because a person believes a council should have made a different decision.
33. I will first explain that, were the Council to agree an EOTAS package for a child with an EHC plan, we would generally expect that to be recorded as their placement on the plan. This being so, if Ms P considers C should have an EOTAS package, instead of a school placement, then this is something she can present to the Tribunal as part of her appeal about the EHC plan. I will therefore not consider it further as part of my investigation.
34. The Council’s s19 duty to arrange alternative provision is a different matter. The s19 duty applies when a child is not attending school due to exclusion, ill health or “other” reasons. In the case of ill health, the duty applies once the child has been, or it is clear they will be, absent for at least 15 days. The 15 days can be continuous, or cumulative over the course of a school year.
35. I do not have any exact data to document when C’s absences reached this threshold, but it appears common ground that she became persistently absent during the early months of 2023. I therefore accept it is likely she had met the threshold at the latest by the start of the 2022/23 summer term, in April of that year. But, since then, Ms P says the school sent essentially no work home for C, and that C has received no alternative provision except for two hours per week of tutoring, which Ms P arranged and paid for.
36. However, while the Council’s duty to arrange alternative provision is absolute when the relevant criteria are met, this does not mean it is obliged to agree that any child who is not attending school is doing so for a qualifying reason.
37. In this case, the Council has made absolutely clear it does not agree C is unable to attend school. It has explained the school has consistently said it can meet C’s needs, and the support it has put in place to help her attend. The Council has also highlighted the school’s reports that C is relaxed when she attends, and is keen to see her friends there. For the same reasons, the Council has refused to provide Ms P with a personal budget to arrange alternative provision for C.
38. I appreciate Ms P is strongly of the opposing view. But it is for the Council to determine whether its s19 duty is engaged in any particular circumstance, and it has clearly explained the rationale for its decision. This a decision it is entitled to make based on the evidence it has seen. There is no evidence of fault here.
39. I acknowledge the school belatedly said it would use C’s EHC plan funding to arrange alternative provision for her. However, it did so while maintaining its view it could properly support C; and, either way, this does not mean the Council is obliged to change its view on C attending school.

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Final decision

40. I have completed my investigation with a finding of no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman