Summary: We found the Council at fault for failing to properly consider its duty to provide alternative education for Mrs X’s child, Y, or document its decision-making. However, we cannot say the Council’s decision would have been different, but for these faults. The Council agreed to apologise and pay a symbolic financial remedy in recognition of the avoidable uncertainty this caused. It also agreed to provide guidance to its officers.

The complaint

1. Mrs X complained the Council delayed completing an Education, Health and Care (EHC) needs assessment for her child, Y.
2. Mrs X also complained the Council failed to put the provision from Y’s EHC Plan in place, and failed to provide Y with any education since January 2024.
3. Y’s mental health subsequently declined. This caused Mrs X distress, and she spent many hours chasing the Council for support.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. The Council accepted fault for a nine-month delay issuing Y’s final EHC Plan. It offered of £900 in recognition of the impact of this delay. This is in line with the Ombudsman’s remedy guidance, and I therefore did not investigate this element of the complaint.
8. Mrs X appealed the content of Y’s EHC Plan, and the placement, to the Tribunal. It is therefore out of the Ombudsman’s jurisdiction, and I cannot investigate the lack of provision whilst an appeal outcome is awaited. I appreciate Y did not receive the provision outlined in their final EHC Plan, but the Courts have decided that we cannot investigate in these circumstances.
9. I investigated whether the Council properly considered its duties under Section 19 of the Education Act 1996, to provide alternative provision from January 2024, up to the point of the appeal in July 2024.

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How I considered this complaint

10. As part of the investigation, I considered the complaint and the information Mrs X provided.
11. I made written enquiries of the Council and considered its response along with relevant law and guidance.
12. Mrs X 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

Alternative provision

13. 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.
14. 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)
15. 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)
16. 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’)
17. Existing case law provides that if a council has arranged for the provision of education which is suitable for a child and which it is reasonably practicable for the child to enjoy, a council would not be under a duty to provide alternative suitable education because the child is not taking advantage of the existing facility. (G v Westminster City Council [2004] EWCA Civ 45 and DS v Wolverhampton City Council [2017] EWHC 1660). Case law has also held that the duty to make alternative provision does not apply because parents or a child have objections to attending the school. The council has to decide if the education offered is reasonably available and accessible to the child. (R (R) v Kent County Council [2007] EWHC 2135 (Admin))
18. 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])
19. 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.
20. 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. (Out of school, out of sight? published July 2022)
21. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• 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:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

What happened

22. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
23. Y’s school attendance started to decline in October 2021 after she reported bullying. Y was suffering social isolation and severe anxiety. Y’s school tried interventions, such as a reduced timetable, mentoring, and outdoor learning, but Y could not engage. The school therefore sought help from the Council’s Inclusion Service.
24. Y’s school arranged education for Y outside school through a bespoke education provider.
25. An EHC needs assessment was requested for Y in August 2023. The Council agreed to do an assessment.
26. Mrs X emailed the Council in January 2024 chasing an update on Y’s sensory assessment. She asked if the Council could take Y’s case back to its Special Educational Needs and Disability Panel (the Panel) now the SALT had recommended a sensory OT assessment. She said Y was only just coping with half a day a week alternative provision which she struggled to engage with when there.
27. Mrs X emailed the Council again later in January when she did not receive a reply. She said she emailed several times about Y’s EHC assessment since the Council agreed to do one in October 2023. She said the general sensory profile she filled in for the assessment was inadequate for Y’s sensory needs. Y needed a sensory OT assessment.
28. The Council confirmed Y’s case went to the Panel, but it decided the Council did not need further advice on Y’s sensory needs. Those needs would be included as part of the general assessment. The Council said it would decide whether Y needed an EHC Plan once it had all advice and the Educational Psychologist’s (EP) assessment.
29. The Inclusion Service’s case notes from February 2024 confirm Y was accessing alternative provision through the bespoke provider. However, the school stopped this as Y did not want to engage with any of the courses and was only attending 50% of the time. Y reported to Mrs X that she was not happy there and the provider left her in rooms alone. The provider was surprised by this as it stated it tried to engage Y in activities they enjoy. Y developed a good relationship with a tutor and engaged with some health and beauty classes. Y’s school offered Y tuition at home, online and after school. Mrs X said Y will not engage with any of these. A support worker had also stopped visiting Y, as Y would not engage with them. The Council’s Inclusion Service also recorded it could not gain Y’s views, as she would not engage. Mrs X said Y will not engage with anything academic and only wants to do activities with animals.
30. The school asked the Council for interim SEN funding while it completed Y's EHC assessment.
31. The Council wrote to Mrs X on 22 March 2024 confirming it recently assigned Y’s case to an EP, who would be in touch soon.
32. The Panel refused SEN intervention funding for Y on 13 May 2024. This was because the Council had agreed to issue an EHC Plan. It also said Y’s school could seek support from the Inclusion Service in the meantime.
33. Mrs X acknowledged the Panel’s decision and asked the Council when it would issue Y’s EHC Plan. She said Y received no provision since January 2024.
34. The Council said Y was on its list of EHC Plans to draft. It said Y’s school should use best efforts and reasonable adjustments in the meantime.
35. Mrs X complained to the Council on 4 June 2024. She said the EHC needs assessment had exceeded statutory timeframes, in what is a transition year for Y. The Council refused interim funding, leaving Y with no support since January.
36. The Council said delays with EHC assessments was a national and local issue, and the current time for issuing a plan was 6-12 months. It said it declined the interim funding request from the school because it did not meet the requirements.
37. Mrs X escalated her complaint on 24 June 2024. She said she had still not received Y’s draft EHC Plan. She also said Y had not received any education since January 2024, and regardless of the Council’s refusal of interim funding, it was down to the Council to put something in place.
38. The Council issued Y’s draft EHC Plan on 2 July 2024.
39. Mrs X emailed the Council. She said Y received no education from the Council since December 2023, and was only receiving little alternative provision before. She said she complained about the lack of education, communication, and EHC Plan delays. She also said the draft EHC Plan appeared produced in haste, without proper consideration of Y’s current stage of education. She asked the Council to re-write it.
40. The Council asked Mrs X to complete the response form, asking for changes to the draft.
41. The Council issued an amended draft EHC Plan on 5 July, with a specialist setting included as the type of provision needed to meet Y’s needs. It said, because Mrs X sought specialist provision, it handed the case over to its placements team. It asked Mrs X to allow 5-6 weeks for allocation.

42. The Council sent its final complaint response on 29 August 2024. It said it understood there were delays with placements, but it had a waiting list as demand for specialist places was so high. It referred to its email in July telling Mrs X to expect a 5-6 week delay.
43. The Council said it refused the request for interim funding because the school made it later in Year 11, and the Council does not award interim funding for post 16. It said the fact Y had no education since January may need to be explored more with school. It said until it completes an EHC Plan it cannot provide support. However, it said it had decided the type of education setting to give Mrs X the right to appeal while the placement process took place.

My investigation

44. Mrs X told me Y has not had any educational provision since January 2024. She said she asked the Council for alternative provision several times. She also asked the Council what support it would put in place while she waited for the result of the appeal.
45. Mrs X said she told the Council Y would struggle to engage with tutoring or online learning until her emotional needs are reduced (as stated in her EHC Plan). The Council agreed to put Speech and Language Therapy (SALT) in place, which was due to start in January 2025.
46. The Council told me Y struggled to attend school due to significant difficulties with social interaction, communication, and anxiety.
47. Y’s school arranged alternative provision through a bespoke education provider. It also offered an animal welfare education programme and online anxiety support sessions.
48. However, Y could not engage with any of this provision, and only attended two of five anxiety support sessions. Mrs X told the school Y could only just cope with half a day a week of alternative provision, and struggled to engage when there.
49. Y’s school offered home tuition, but Mrs X said Y could not engage with this, or with another placement.
50. When Y reached the end of Year 11 in July 2024, the Council had agreed an EHC Plan naming an independent specialist school.

Analysis

51. I found Y’s school did what they could to offer Y education and support, including provision at different settings. Unfortunately, Y could not engage, and this broke down in February 2024. The school also offered home tutoring, but Mrs X refused because Y would not engage.
52. There was no significant educational support or intervention for Y after February 2024 when the alternative provision offered by the school ended. Y received no education after this.
53. I can appreciate the Council’s decision to refuse interim SEN funding, as it was late in Year 11, and it had agreed to issue an EHC Plan. However, it is concerning the Council said it could not provide support until it issued Y’s final EHC Plan, and that it did not appear to consider the fact Y may not receive any education in the meantime. It told Mrs X that Y’s school should do its best to make adjustments and seek support from the Inclusion Service. However, the school had already done this, and Y could not engage with the provision offered. Y also would not engage with an Inclusion Service support worker. The Council retains ultimate responsibility for providing education, and alternative provision. I have not seen evidence the Council gave this any consideration, or that it considered its duties under section 19 of the Education Act 1996 at this point. This is fault.
54. It is good practice councils to make contemporaneous notes of a decision on whether it owes a section 19 duty, and to clearly communicate the decision, showing how it has considered the relevant evidence. I have not seen evidence the Council did this.
55. When Y could not engage with the education offered by the school, Mrs X contended this meant the Council had to arrange alternative provision under section 19. Case law has held a council’s section 19 duty is not necessarily engaged when a parent or child objects to attendance at a particular school in these circumstances. The Council must decide whether the education on offer is reasonably available and accessible to the child.
56. Unfortunately, the Council’s rationale for its actions in February 2024 is unclear, because it did not properly keep its section 19 duties under review, or document its decision-making. Because of this, we cannot say, even on the balance of probabilities, whether the Council would have done things differently, even if it had properly considered its section 19 duty.
57. I am also mindful of the fact Y had already refused to engage with the placements offered by the school, and home tuition. And Mrs X said Y would not consider any academic learning. I therefore cannot say, even on the balance of probabilities, Y would have engaged if the Council agreed to provide alternative provision.
58. However, the Council’s failure to properly consider its section 19 duties caused avoidable uncertainty. This uncertainty is an injustice to Mrs X and Y. This injustice extends up to July 2024, when Mrs X’s right of appeal arose.

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Agreed Action

59. Within four weeks of my final decision, the Council should:
• Apologise to Mrs X and Y for failing to properly consider its duties under section 19 when support from Y’s school broke down.
• Pay Mrs X £500 in recognition of the uncertainty caused by the Council’s failure to properly consider its section 19 duty and keep this under review.
• Share a copy of this decision and the Ombudsman’s Focus Report “Out of school, out of sight?” with relevant officers, to highlight good practice and identify wider points of learning.

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Decision

60. We found the Council at fault for failing to properly consider its section 19 duty, or document its decision-making. We cannot say the Council’s decision would have been different, but for these faults. The Council will apologise and pay a symbolic financial remedy in recognition of the avoidable uncertainty caused. It will also provide guidance to its officers.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman