Summary: Ms X complained that the Council failed to provide alternative education to her son after he was unable to attend school for medical reasons, and that there were delays in completing an Education, Health and Care Plan. This caused a loss of education and avoidable distress. We find fault causing injustice. The Council has agreed to make symbolic payments for the lost education and avoidable distress, and to review its policy on providing pupils out of school alternative education.

The complaint

1. Ms X complained that the Council:

• failed to provide alternative education for her son, Y, who was unable to attend his school (School Z) for medical reasons and had a fit note from his General Practitioner (GP) in February 2024;
• that the Council wrongly regarded her request for help in December 2023 as a request for an Education, Health and Care (EHC) needs assessment and proceeded with this without her consent or informing her of her right of appeal when it was refused. Y’s school subsequently requested a needs assessment; and
• that the Council delayed in the EHC planning process. The Council agreed an EHC Plan was required, but there was a delay in issuing a draft and, in turn, a final EHC Plan. In the meantime, Y was still not receiving alternative education.

2. Ms X says that the Council’s faults caused avoidable distress and time and trouble and a detrimental impact on family life. Y also lost out on receiving appropriate 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 must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’.
4. 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).
5. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b)). But, where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability-SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
8. We will not normally investigate a complaint whereby the complainant had an alternative remedy by means of appeal to the SEND Tribunal unless we consider that there are reasons why the complainant could not resort to this remedy.
9. 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)
10. 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)
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

12. The Council has not investigated the complaint about the delay in issuing a final EHC Plan. Normally, we allow councils an opportunity to investigate complaints before we will. But this complaint is a continuation of Ms X’s concerns. So, with the Council’s agreement, I included this aspect within the Ombudsman’s investigation.
13. Ms X also had a right of appeal to the SEND Tribunal in April 2024 when the Council refused to assess Y’s possible needs. Ms X used that appeal right. But, by this stage, Y was out of school for medical reasons and therefore the Council had to consider whether it should provide alternative education. I am also satisfied that the Tribunal was looking at whether a statutory needs assessment was required, and that this is sufficiently separable from the question of whether the Council should be providing alternative education to a child out of school.
14. Therefore, I looked at how the Council considered its duty to provide alternative education even though the complainant exercised her right of appeal to the SEND Tribunal.
15. Accordingly, I investigated complaints from December 2023 to December 2024 when the Council issued a final EHC Plan. At this point, Ms X had a right of appeal to the SEND Tribunal if dissatisfied with the final EHC Plan, which it was reasonable for her to use.

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How I considered this complaint

16. I made enquiries of the Council and spoke to Ms X on the telephone. I have considered both the Council and Ms X’s written information.
17. I issued a draft decision statement to the Council and to Ms X. I have considered their further comments when reaching my final decision.

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What I found

Special educational needs

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 SEN 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 SEND Tribunal;
• if the council subsequently agrees to undertake an EHC needs assessment, or is ordered to do so by a SEND Tribunal, the council then has fourteen weeks to complete the process;
• if the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHC Plan and express a preference for an educational placement.

19. There are exemptions to the timescale. In this case, where the educational institution was closed for at least four weeks, this would have delayed the submission of information, and that is a legitimate exemption.

Alternative education

20. 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.
21. 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))
22. In more general terms of educational provision and attempts at reintegration, the Department of Education (DfE) statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states “there will be a range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the local authority, for example where the child can still attend school with some support”. The guidance envisages that in the first instance schools are responsible for managing attendance issues relating to ill-health and special educational needs.
23. The DfE updated its guidance in August 2024.  
24. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
25. 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)
26. So, if the Council has arranged for the provision of education which is suitable for a child and which he/she is reasonably able to attend, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
27. In R v Croydon Council [2015], the issue was whether a child of compulsory school age could reasonably be expected to attend the school. The Court decided that, where a child or young person had a medical reason or special educational needs, which explained the non-attendance, a council’s duty to arrange alternative education would be triggered, and alternative provision should be made pending finding a suitable school.
28. In practice, we would expect to see councils acting quickly and consulting all the professionals involved in a child’s education and welfare, as well as listening to parents, and taking account of the evidence in coming to a decision. If – having considered all relevant evidence – a council decides that the school place remains available and accessible to the child, we would expect this to be clearly documented and communicated promptly to the parents.

The Council’s policy

29. The Council has a s19 alternative education policy dated September 2021. It is due to be reviewed every three years.
30. The policy states that all schools should have a graduated response to identifying and meeting a range of additional needs. The Council commissions a hospital school to provide outreach support for mainstream schools. When medical needs of a pupil become too complicated, or risks too great, a school is expected to make a referral to the hospital school for additional support.
31. The policy states that the Council will provide suitable fulltime education (or an amount which a pupil can manage) for pupils who, because of illness would otherwise not receive suitable education. Provision can include home tuition, tuition in a community venue, or ‘robot’ supported learning.
32. Decisions about who should receive alternative education are made by a multi-agency panel after a school has arranged a team around the child meeting.

Key facts

33. In December 2023, Ms X contacted the Council’s EHC planning team, explaining Y’s difficulties and that he was not attending his school, School Z. School Z is a secondary school Academy.
34. The Council was aware that Y was not attending School Z in December 2023. The Council says that School Z told it that it was trying to re-engage Y by offering a part time timetable, counselling and was collecting information to make a referral to the hospital school.
35. The Council considered Ms X’s contact was a request for an EHC needs assessment, which it declined. But it did not tell Ms X of her right of appeal to the SEND Tribunal.
36. In early February 2024, Y’s GP signed a ‘fit note’ stating that Y was unable to attend ‘work’ for the next three months and that he was awaiting an Autistic Spectrum Disorder (ASD) and Attention Deficient Hyperactivity Disorder (ADHD) assessments. From this point, School Z authorised Y’s absences from school.
37. The Council told us that the fact Y’s absences were authorised by School Z on the grounds of medical reasons did not “impact on its s19 duties being followed”. School Z was collecting information to make the referral to the Council’s hospital school.
38. In late March 2024, School Z requested an EHC needs assessment, which the Council refused. Ms X appealed to the SEND Tribunal. In May 2024, Y was formally diagnosed with ASD and learning difficulties.
39. On 3 July 2024, the Council agreed to assess Y’s special educational needs. The Council says that School Z told it that it had offered counselling to Y, a reduced timetable and access to its inclusion unit. School Z said that it was awaiting medical advice. Y remained on School Z’s roll.
40. Ms X says Y tried the parttime timetable in October. But this did not work and effectively Y has been without education since December 2023.
41. The Council issued a draft EHC Plan in November and finalised this in mid- December 2024, naming a special school, in which Ms X had expressed a preference.

Findings

Failure to provide alternative education

42. It is right that, in accordance with the Council’s policy and guidance, School Z initially tried to manage Y’s additional needs and secure his school attendance. It recorded the absences as unauthorised.
43. But, by early February 2024, School Z accepted Y could not attend because of his medical needs, and it had evidence of this from Y’s GP. The Council would have been aware of this.
44. The Council relied upon School Z to manage Y’s absences even though the GP had signed off Y as unable to attend school. It seems that the Council considered that, because School Z was gathering evidence to support a referral to the hospital school, this was sufficient, and Y’s authorised absences did not ‘impact’ on its s19 duties.
45. The Council should have considered whether it had a duty to provide alternative education under s19 at the point Y’s GP stated Y was unfit and awaiting key assessments. This failure is fault by the Council. The Council’s own policy on s19 states that suitable alternative education should be provided when a pupil cannot attend school for medical reasons. And this can take the form of individual tuition.
46. The Council would have required a little time to arrange the alternative education. So, I consider that alternative education should have been provided to Y from March 2024. In September/October 2024, School Z continued to offer a parttime timetable and other adjustments. But Ms X says these were unsuccessful. I consider that the Council should have had oversight of this and, as soon as it was apparent that Y remained out of education, it should have stepped in.
47. In November 2024, when the Council issued a draft EHC Plan and invited Ms X to express a preference for a different school placement, there was acceptance then by the Council that School Z was not suitable and available to Y.
48. So, I consider that Y missed one month of education in March 2024, and two terms of education between April to December 2024.

Failure to offer Ms X a right of appeal to SEND Tribunal when it refused an EHC needs assessment

49. Ms X says that she was not requesting a needs assessment in December 2023. But, as she has said, Y did need one. The main fault is that the Council did not tell Ms X that this was taking place and then did not tell Ms X in January 2024 of her right of appeal when it refused to assess.
50. Had Ms X been told, she may have appealed at this stage or waited until School Z submitted the request with all the required information. So, I consider that there was a lost opportunity and choices for Ms X, which might have resulted in an EHC Plan sooner.
51. In April 2024, the Council refused School Z’s request for a needs assessment. Ms X was told of her right of appeal which she exercised. We cannot consider a complaint about this refusal because of the right of appeal to the SEND Tribunal.

Delays in the EHC process

52. On 3 July 2024, the Council agreed to carry out an EHC needs assessment. The Council then had fourteen weeks to complete the process and issue a final EHC Plan. A draft was issued in November and a final EHC Plan in mid-December 2024.
53. During this period, there were the summer holidays and that would have delayed information from School Z. So, I consider that the Council did not unduly delay the issuing of the final EHC Plan. So, I find no fault.

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Agreed action

54. We have a wide statutory discretion in determining the nature and level of any remedy (ss. 30(1A) and 31(2B)-(2BA) of the Local Government Act 1974). In exercising that discretion, we apply our guidance on remedies most recently updated in July 2024.
55. Our primary aim is to put people back in the position they would have been in if the fault by the council had not occurred.
56. When this is not possible, we may recommend the council makes a symbolic payment. Where that takes the form of a payment, it is often a modest amount (up to £500) whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
57. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
58. Our guidance on remedies also says that “where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss”. What is proportionate in an individual case will take account of factors such as:

• the severity of the child’s special educational needs;
• any educational provision the child received that fell short of full-time education;
• whether additional provision can now remedy some or all of the loss;
• whether the period concerned was a significant one for the child or young person’s school career.

59. Within one month of our final statement, the Council has agreed to:
1. apologise to Ms X for the faults identified in this statement and make a payment of £500 for the avoidable distress and frustration and lost opportunity to have appealed to the SEND Tribunal in January 2024;
2. pay Ms X £800 for the loss of education for Y during March 2024 which she should use for his benefit;
3. pay Ms X £2,400 for the loss of education for the summer term 2024 to be used for Y’s benefit;
4. pay £1,800 for the winter term 2024, again to be used for Y’s benefit. I am recommending less than our full tariff for this term on the basis that some parttime education was offered; and
5. the Council is due to review its alternative education policy. The Council has agreed to take into account the findings of this complaint to ensure officers are fully aware of when the Council’s s19 duties might be triggered.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. There has been fault causing injustice. The Council has agreed the recommended remedy. Therefore, I have completed my investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman