Summary: The Council was not at fault for its handling of Miss X’s request that her son receive alternative educational provision. It followed the correct process in considering the request, so we cannot question its decision. However, the Council was at fault for a delay in deciding Miss X’s son’s special educational needs support, and then for a further delay in delivering that support. This likely caused him an injustice, and caused Miss X distress in her own right, which the Council will now take steps to address.

The complaint

1. Miss X complains that:
• The Council failed to deliver alternative educational provision to her son, Y, between October 2023 and July 2024 after he stopped being able to access school full-time.
• The Council also failed to deliver Y’s one-to-one special educational needs support plan between March and July 2024.
• The Council fined Miss X for Y being off school, despite knowing that his absences were caused by mental health problems.
2. Miss X says these failings hindered Y’s academic progress and caused her distress. She also says she suffered financial injustice, firstly from being fined, but also because she had to quit her job to look after Y while he was out of school.

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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’. 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)
4. The law says we cannot normally investigate a complaint when someone had a right of appeal to a tribunal about the same matter, or could have taken it to court. However, we may decide to investigate if we consider it would have been unreasonable to expect the person to use these rights. (Local Government Act 1974, sections 26(6)(a) and 26(6)(c), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. 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)
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)
8. 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

9. I have not investigated Miss X’s complaint about being fined for Y’s school attendance. We do not normally investigate such complaints, because we generally take the view that parents can defend themselves in court. I have seen no evidence why it would have been unreasonable to expect Miss X to take this approach.
10. I have not investigated Miss X’s complaint about the Council’s offer of education to Y from the end of March 2024 onwards. This is because the law prevents us from investigating matters which could have been resolved by the Tribunal. Our role cannot overlap that of the Tribunal.
11. In Y’s case, his non-attendance at school was directly linked to Miss X’s dispute with the Council about the suitability of the school. There are numerous records which show that Miss X wanted Y to move into specialist provision.
12. When Miss X was given a right of appeal to the Tribunal at the end of March 2024, this matter became something for the Tribunal to decide. For this reason, I cannot look at the Council’s actions in relation to Y’s school attendance (and its associated offer of education) from that point on.
13. I have, however, investigated:
• The Council’s offer of education to Y between October 2023 and March 2024.
• The Council’s delivery of Y’s special educational needs support.

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How I considered this complaint

14. I considered evidence provided by Miss X and the Council as well as relevant law and guidance.
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

16. Councils must arrange suitable education for children who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Education Act 1996, section 19). We refer to this as ‘alternative provision’.
17. When a council is considering whether to provide alternative provision, the “acid test” is whether the education already on offer to the child is “available and accessible” to them. (R (on the application of DS) v Wolverhampton City Council 2017)
18. It is up to a 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. A child with special educational needs may have an education, health and care (EHC) plan. This document describes the arrangements which should be made to meet the child’s needs.
20. The process of deciding whether a child needs an EHC plan is routinely referred to as an EHC needs assessment.
21. If, following an EHC needs assessment, a council decides to issue an EHC plan, it must do so within 20 weeks of receiving the request for the needs assessment. (The Special Educational Needs and Disability Regulations 2014, Regulation 13(2))

What happened

22. Miss X requested an EHC needs assessment for Y in early May 2023. In late June, the Council agreed to do an assessment.
23. The Child and Adolescent Mental Health Service (CAMHS) contributed to the Council’s assessment. They said that Y suffered from anxiety, and that this could affect his behaviour at school.
24. Miss X contacted the Council twice in September to find out when its assessment would be completed. She said Y was not coping in school, and the school would not provide any more support until he had an EHC plan.
25. In October, Miss X called the Council and said she had withdrawn Y from school and had no intention of returning him. She said he was not managing at school, and it was not an appropriate setting because he needed one-to-one support. She asked to home-educate him until his EHC plan was in place.
26. The Council passed this information onto Y’s school, which decided to start legal action against Miss X for Y’s non-attendance. It provided the Council with a list of support it was offering Y to encourage him back into school. It also told the Council that Miss X had changed her mind about home-educating him.
27. In late November, Miss X asked the Council to deliver alternative provision to Y while he was out of school. But the Council refused, saying:
• Having considered the support the school had put in place, it was the Council’s view that it had made arrangements to deliver a suitable education.
• It would ensure the school provided support to reintegrate Y back into education.
28. In December, CAMHS provided a letter to Miss X which said:

… it appears clear that [Y] is experiencing significant anxiety which is related in part to his neurodiversity … The impact of this is that he feels unable to access education … it would be appropriate to really consider this as a combination of neurodiverse and medical issues which are impacting on his ability to be able to access school at the moment, and not simply as ‘school refusal’.

29. Miss X says she provided this letter to school at around this time. But there is no evidence of this. The letter was in the school’s attendance file, but it was not provided until March 2024.
30. The Council’s educational psychologist completed her report for the EHC needs assessment in January 2024. She noted that Y suffered from anxiety, and that he did not want to return to his current school. She set out the support he would need were he to go back – including one-to-one.
31. In February, the Council agreed to issue an EHC plan for Y. It sent out a draft plan at the beginning of March.
32. In mid-March, Miss X provided the CAMHS letter (from December 2023) to Y’s school. She said she wanted Y to move schools immediately.
33. Shortly after this, the Council sent out Y’s final EHC plan – naming his existing school – and Miss X was given a right of appeal to the Tribunal.
34. The EHC plan included 21 ½ weekly hours of one-to-one support in lessons. And the school advertised for a teaching assistant who could fulfil this role. But it did not successfully recruit someone until July, at which point Y began receiving the one-to-one support he needed.
35. Although Y was getting the one-to-one support set out in his EHC plan, Miss X said he continued to struggle with attendance, and it he stopped going to his school completely in September 2024.

My findings

36. It is for a council to decide whether a child is able to attend school, and whether to deliver alternative provision – not the Ombudsman.
37. The Council considered the evidence available, spoke to Y’s school and explained to Miss X why it had rejected her request for alternative provision. And – although Miss X was dissatisfied – its decision was not obviously irrational or out of step with its statutory responsibilities.
38. Although Miss X says she provided medical evidence to Y’s school which demonstrated that he could not attend, there is no evidence of this happening until right before the Council issued Y’s EHC plan (at which point, for reasons given earlier in this statement, my investigation into this matter ends). I would not criticise the Council for failing to consider evidence which was not in its possession.
39. This means there was no fault in the process the Council followed in considering Miss X’s request for alternative provision. Consequently, I have no power to question its decision to refuse that request.
40. The Council was, however, at fault for failing to provide Y’s one-to-one support straight away after issuing his EHC plan. It did not do so for over three months, for which it was at fault.
41. The Council has explained the reason for the delay. I accept that the school had problems recruiting a teaching assistant for Y. However, this does not change the Council’s duty to deliver the support, or the injustice caused to Y from the delay.
42. Furthermore, Y’s EHC plan was late. It should have been issued by September 2023 but was not issued until the following March – a significant delay, for which the Council was also at fault. A plan issued on time may well have led to Y receiving one-to-one support at the beginning of the academic year, rather than the end.
43. Miss X believes Y suffered a substantial injustice from this delay, because his non-attendance at school was linked to his lack of one-to-one support. However, I note that – when the support was eventually delivered – his attendance did not improve dramatically or for long. It is plausible that the earlier delivery of this support may have meant it was more effective. But this is speculative.
44. Nonetheless, I am satisfied that the delay to Y’s EHC plan likely caused him to miss out on at least some support, and likely caused Miss X some distress.
45. I have made recommendations to address the injustice caused to Miss X and Y, which now follow.
46. Although I have considered recommending that the Council take action to improve its service, I note that it is almost two years since we last upheld a complaint against the Council on a similar issue. For this reason, I do not consider it proportionate to make any recommendations other than those directly addressing the personal injustice caused to Miss X and Y.

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Action

47. Within four weeks, the Council has agreed to:
• Apologise to Miss X for the delay to Y’s EHC plan, for the subsequent delay arranging his one-to-one support, and the likely impact these delays had on his education. We publish guidance which sets out what we expect an effective apology to look like. The Council will consider this guidance when writing to Miss X.
• Make a symbolic payment of £600 to Miss X, on Y’s behalf, to recognise Y’s injustice from the delay to some of his educational support.
• Make a further symbolic payment of £300 to Miss X to recognise that the delays likely caused her distress in her own right, particularly as she felt it necessary to contact the Council about them on several occasions.
48. The Council will provide us with evidence it has done these things.

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Decision

49. The Council was at fault, and this caused an injustice to Miss X and Y, which it will now take action to address.

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Investigator's decision on behalf of the Ombudsman