Summary: Mrs D complained the Council failed to make suitable alternative provision for her child when they were not able to attend school, and inappropriately took steps to take formal action against them. We did not find the Council at fault.

The complaint

1. Mrs D complains about the way the Council handled her child's special educational needs. Specifically, it:
1. failed to provide education in line with its section 19 duty when her child was not well enough to access school;
2. inappropriately involved its Legal Intervention Team in her child’s case; and
3. failed to obtain correct assessments during the Education, Health and Care (“EHC”) needs assessment process resulting in a final Education Health and Care Plan not reflecting her child’s needs and provision not being delivered.
2. Mrs D says this has caused the family significant distress, uncertainty and frustration in trying to get support with her child’s attendance and education.

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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 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. This means that if a child is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of alternative educational provision.
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. Mrs D says she first contacted the Council about her child’s attendance in June 2022. This is more than 12 months before she came to us in April 2024, and we consider it a late complaint (see Paragraph 4). It took some time for her complaint to complete the Council’s complaints process, so I have exercised discretion to consider the period from September 2022 to June 2023.
9. I am not investigating part c) of Mrs D’s complaint. The Council issued a final EHC Plan in June 2023. She exercised her right of appeal. She was dissatisfied with advice and reports obtained for the EHC needs assessment. These matters could be considered as part of the Tribunal. Any potential injustice relates to what was outlined in the Plan, which is the subject of appeal. Therefore, this point onwards is outside of the Ombudsman’s jurisdiction to consider (see Paragraphs 5-6).

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How I considered this complaint

10. I discussed the complaint with Mrs D and considered her views.
11. I made enquiries of the Council and considered its written responses and information it provided.
12. Mrs D 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 and administrative background

Education, Health and Care Plans (EHC Plans)

13. 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. The EHC Plan is set out in sections. Parents have a right of appeal to the SEND Tribunal. This is only engaged once a final EHC plan has been issued.
14. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this.

Children out of school and the Council’s Legal Intervention Team

15. The Education Act 1996 creates a duty for parents to ensure their children of compulsory school age are receiving suitable full-time education at school or otherwise. Councils can use various legal powers where it considers a child’s non-attendance to be unauthorised, including prosecution or issuing a fine. If a council decides to prosecute a parent, they will be formally cautioned and interviewed under the Police and Criminal Evidence (PACE) Act 1984.
16. Where a child’s attendance at school drops below a certain level, it is likely a council’s inclusion officer will become involved after a referral from the school. Inclusion officers have various responsibilities. These are typically a mix of providing advice and support to schools, parents and children, while also leading a council’s investigation and enforcement of the law around school attendance.
17. The Council’s Legal Intervention Team provides attendance support, and its primary consideration is to re-engage children with education. It ensures families are offered support, prior to deciding whether to pursue legal action where this is appropriate. The Council has good practice guidance to help support pupils with Emotionally Based School Avoidance (“EBSA”).

Alternative provision

18. 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.
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])

Background

20. Mrs D has a child (“J”). They were on the roll of the School. Mrs D says J had severe school anxiety which affected their attendance. In mid-June 2022, Mrs D contacted the Council’s Inclusion Support Service (“ISS”) to advise of J’s difficulties in attending and accessing education.
21. Between June and August 2022, the ISS was in contact with Ms D about the situation and actions of the School, including trying to implement a reduced hours timetable for J.

What happened – summary of key relevant events

22. The following is an overview summary of key events relevant to my consideration of the complaint. It is not a detailed record of everything that happened or all communication.
23. In early September 2022, the School made a referral to the Council’s Legal Intervention Team (“LIT”) about J’s low attendance. It told the Council what it had tried so far with J. It said to Mrs D the LIT could offer support and guidance.
24. The Council allocated an Attendance Intervention Officer (“AIO”) to J’s case. Between September 2022 and October 2022, there was various contact and ongoing conversations between Mrs D, the School and the Council (with support from the AIO) about proposed small steps to try and integrate J slowly back into school, considering an Emotionally Based School Avoidance (“EBSA”) approach. Mrs D disagreed with the Council and School’s approach. She said it was not in line with EBSA guidance and it was unrealistic for J. The Council said it understood Mrs D’s concerns and discussed them with the School and explained why it believed the plan could work.
25. The AIO made a home visit. J was not attending regularly. Mrs D said the plan was not working and meetings with the School were unsuccessful. The AIO agreed to feedback to the School.
26. In mid-November 2022, a Family Support Worker (“FSW”) was allocated after concerns about J’s wellbeing. Mrs D, the AIO and the School had a meeting. Mrs D said J was experiencing severe burnout and was unable to engage with learning. She provided a letter from J’s counsellor.
27. In mid-January 2023, Mrs D confirmed J had an Autism Spectrum Disorder diagnosis. She also shared a letter from J’s GP.
28. In January 2023, the School updated the Council about other steps it had taken with J. The FSW had created a plan and the AIO would monitor for improvements in school attendance. A meeting was held. Mrs D raised concerns about what the School had told her about other provision previously and a referral was in progress for an external provision provider.
29. In February 2023, Mrs D submitted a request for an Education, Health, and Care Needs assessment for J. She emailed the School saying she felt it was unable to meet J’s needs, it had impacted on J’s ability to cope, and the relationship had broken down. Mrs D said she later had a successful meeting with the School.
30. In March 2023, the School submitted a medical referral to the Council for J, to go towards the external provision provider referral. The School said it continued to try various methods to re-engage J back with support systems it had available but had not been successful. It did not have anything further it could put in place and noted medical evidence Mrs D provided.
31. Later that month, a meeting was held. Mrs D said she felt some positive progress being made with the referral and the School. The AIO noted the number of support measures and adjustments offered by the School, but J had not been able to manage or engage for a notable period. The AIO considered medical evidence about J’s anxieties, needs and abilities and decided they were not reasons to support nonattendance at school.
32. The AIO decided to issue a First Warning. They hoped formal action would help with a way forward, along with considering other provision options for J and improving attendance.
33. In late April 2023, the AIO decided to close J’s case with no further action. They noted J had taken steps to attend the School and engage with other external sessions. While attendance remained low, it reflected the provision and plans were in place for this to increase over time. The School also agreed there was no further role for the LIT.
34. In May 2023, Mrs D made a formal complaint to the Council.
35. In June 2023, the Council issued a final EHC Plan for J. Mrs D later appealed the contents of it.
36. In July 2023, the Council responded at the second stage. It said the School had developed plans to try to support J’s attendance. The School had tried from an early stage, and it was important that reasonable adjustments in the school environment were considered and attempted, prior to making decisions around arranging alternative provision. It had decided to issue a First Warning as measures had not resulted in improvement. After this action, it noted J made positive progress. Mrs D later escalated her complaint.
37. In March 2024, the Council sent a final complaint response to Mrs D. It maintained its position and did not uphold her complaints.
38. In April 2024, Mrs D complained to us.

Analysis

39. The investigation is limited to considering the role of the Council. Some actions complained of related to what the School did or said. We cannot consider the actions of the School as they are outside of our jurisdiction.
40. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot say it should have made a particular decision or reached a different outcome.
41. In the event a child cannot attend school, a council must decide if the current education arrangements are reasonably accessible by the child. If satisfied, a council’s section 19 duty is not triggered. It is not under a duty to provide alternative education simply because, for one reason or another, the child is not taking advantage of it. In such circumstances, the child’s parents are under a duty to ensure their attendance at school.
42. Mrs D said the School’s referral to the LIT was inappropriate. It met the criteria as J had 10 unauthorised absences within the last 100 school sessions. Mrs D said the School, upon advice from the Council, had been incorrectly marking J as unauthorised in order to make the referral or for other action to be taken. I appreciate Mrs D’s concerns, but this is ultimately a decision the School makes when marking attendance registers, not the Council.
43. The Council acted on the referral and the AIO became involved. Mrs D said she did not think the AIO gave much support. I am satisfied they had appropriate oversight on the case; the records show the Council:
• Discussed strategies the School had tried to improve J’s attendance by making several reasonable adjustments to remove or reduce barriers impacting J’s ability to access the education available, and regularly reviewed progress.
• Had regular contact with Mrs D and the School, including arranging various meetings with the parties to obtain their views and work or amend integration plans.
• Noted the School said it could meet J’s needs through supportive measures it offered, but J did not engage.
• Considered medical evidence which said J had anxiety but did not consider it was sufficient to show a medical reason why J could not attend school.
• Decided options had been exhausted in March 2023 which led to formal action, and the School made a medical referral so it could facilitate arrangements for alternative provision.
44. It is for the Council to decide what weight to give to medical evidence. Based on the information at the time, considering Mrs D’s views and the School’s, it decided J did not require alternative provision on the grounds of illness and the School said it could meet J’s needs. I do not find fault with its decision making process.
45. I am satisfied the Council tried to work with all those involved to try and re-engage J into school over a period of several months, keeping it under review, with flexibility to try and accommodate Mrs D’s requests and changes. She had made comments on several things the School had put in place as to why they were unsuitable or would not work for J. I appreciate Mrs D clearly wanted to try and make progress in the way she thought best for J to manage. She said the Council was not following EBSA guidance, but it is not for me to say what actions were needed to achieve this. I am satisfied the Council had its mind to this guidance. Mrs D strongly disagreed with the approach and strategies put in place and I recognise she felt frustrated with the difference of opinion for J’s best interests. While J could not always engage or there was limited success, I do not consider this is due to fault by the Council.
46. I recognise Mrs D was distressed with the First Warning and disagreed with it and what the Council based it on. But I do not find fault in how it made its decision; it reviewed the history of the case and its involvement with professionals and Mrs D and decided that support options had been exhausted. It took into account relevant information, and it decided to take formal action for non-attendance. It was a decision it was entitled to make at the time. I therefore cannot question whether that decision was right or wrong.
47. While Mrs D thinks provision may have worked for J had it been put in place earlier, on balance of probabilities I am unable to say this. Overall, in coming to the above decisions, I do not consider there is fault in how they were reached. I do not find the Council at fault for taking the actions it did from September 2022.

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Final decision

48. I have completed my investigation on the basis I do not find fault in the actions of the Council relating to J’s non-attendance at school.

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Investigator's decision on behalf of the Ombudsman