when she could not attend school. There is no evidence of fault in how the Council made its decision that it did not have a duty to provide alternative education provision for Y. The Council is at fault for not recording its decision that Y’s school could meet her needs, but I do not consider this caused Y an injustice.
The complaint
Mr and Mrs X complains the Council has failed to arrange suitable education provision for their daughter, Y, since she has been out of school from January 2022.
Mr and Mrs X say this has caused Y to miss out on education she was entitled to and caused the family significant distress.
Ombudsman’s role and powers 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) 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) When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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.
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)
How I considered this complaint
I considered the information provided by Mr and Mrs X and discussed the complaint with them. I made enquiries of the Council and considered its response.
Mr and Mrs X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.
What I found
Relevant legislation, guidance and policy Education, Health and Care Plans A child with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.
The EHC Plan is set out in sections which include: Section B: Special educational needs.
Section F: The special educational provision needed by the child or the young person.
Section I: The name and/or type of educational placement.
The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
Alternative provision/section 19 duty 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
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) Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)) 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) The law does not define what full-time education is 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’) Appeals rights and Ombudsman’s jurisdiction 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) This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.
Background
Y was attending a mainstream primary academy (School A) in September 2020. In December 2021, the Council received an in-year application for a placement at School B and then School C. At the time Y did not have an EHC Plan. Y remained on roll at School A and her last day of attendance was 10 January 2022.
Key events Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
Mr and Mrs X requested an EHC Needs Assessment (EHCNA) for Y in March 2022. They appealed the Council’s decision not to carry out an assessment. The Tribunal dismissed the appeal.
Y became of compulsory school age on 20 March.
The Council received confirmation from School C that it would offer Y a place. School C said it had invited the family to a meeting with the aim of Y starting school after the Easter holidays.
Mr and Mrs X requested another EHCNA for Y in May. The request stated that Y had been diagnosed with autism and sensory processing disorder. It said Y had high levels of anxiety and was unable to attend school.
In June, School C informed the Council that Mr and Mrs X did not attend the meeting. School C carried out a home visit. Mr and Mrs X said School C could not meet Y’s needs.
The Council agreed to carry out an EHCNA in June 2022. The Council sought advice from health, speech and language therapy and education psychology. It also considered the information provided by Mr and Mrs X.
The Council decided that Y did not require an EHC Plan. The Council wrote to Mr and Mrs X with its decision in August. The Council said Y’s needs could be met within a mainstream environment. Y remained on roll at School A.
Mr and Mrs X requested mediation following the Council’s decision not to issue an EHC Plan. Mrs X also expressed her concerns that Y remained out of education. Following mediation, the Council overturned its decision and agreed to an EHC Plan for Y.
The Council issued a draft EHC Plan at the end of September. Mr and Mrs X responded and requested an Education Otherwise Than at School (EOTAS) package for Y.
Three weeks later, the Council issued a final EHC Plan with mainstream school type in Section I. The Plan set out support for Y with communication and interaction; curriculum; environment, facilities and resources, staffing, cognition and learning, social, emotion and mental health, physical and sensory needs and preparation for transition.
Mr X complained to the Council. They said the Council had failed to provide Y with a suitable alternative education since January 2022 and refused their requests for support. Mr X said the lack of school placement had caused significant detriment to Y and she was behind her peers in her learning.
The Council responded to Mr X’s complaint at stage one of its complaint’s procedure. The Council explained that Y was on roll at School A which could meet the needs set out in her EHC Plan. The Council said it had considered Mr X’s concerns that School A did not support children with mental health difficulties, but it required medical evidence from Y’s GP or medical team confirming she could not attend school due to medical issues. The Council said Y must attend school regularly and it had advised School A to follow its attendance procedures as Y’s absences were not authorised. The Council said that School A were happy to work with the family to re-integrate Y back into school.
In November 2022, Mr X appealed to the tribunal. He appealed sections B, F and I of the Y’s EHC Plan.
Mr X remained unsatisfied and asked for his complaint to be escalated to stage two.
The Council responded to Mr X’s complaint at stage two of its complaint’s procedure. The Council confirmed it had received a letter from Y’s GP. The Council said the letter did not provide sufficient evidence to indicate that Y was unable to attend school due to illness or otherwise. The Council said therefore it did not have a duty to arrange suitable alternative full-time provision for Y. The Council said Y’s needs could be suitably met at School A and encouraged Mr X to work with the school. The Council confirmed that it had considered the family’s request for EOTAS but did not agree that it would be inappropriate for the special educational provision Y required to be delivered in school. The Council did not uphold the complaint.
The Council issued an amended final EHC Plan in January 2023, naming School A.
In August 2023, the Council informed the Tribunal and Mr X that due to the ongoing refusal by the family to support Y’s attendance at School A, the Council considered this was an exceptional case where the extent of the breakdown of relationships between the family and School, rendered the placement unsuitable. The Council’s view was that Y’s needs could be met within a mainstream school with additional resource provision for pupils with autism.
The Tribunal hearing took place in September 2023. The Tribunal found that Y required Education Otherwise Than at School (EOTAS). A week later, the Council issued an amended EHC Plan for Y.
Analysis I have considered the Council’s decisions about Y’s education arrangements from April 2022, which is the first term after Y became of compulsory school age until the point the Council issued Y’s EHC Plan in October 2022. I cannot consider any lack of education after this date, for the reasons set out in paragraphs 18-20. Y’s lack of education after this time is directly linked to whether the education setting and content of her EHC Plan was suitable for her needs. Mr X appealed Sections B, F and I of the EHC Plan to the SEND Tribunal.
Where a child cannot attend school because of health problems, and would not otherwise receive a suitable full-time education, the Council is responsible for arranging provision. The courts have said if illness prevents a child from attending a particular school, it is likely to prevent that child from attending any school. The Council has to arrange for the provision of suitable education where it is impossible for the child to attend an existing school.
In the event a child cannot attend school for reasons other than exclusion or illness, a council must decide if the current education arrangements are reasonably accessible by the child. A council’s duty to make alternative education provision under section 19 of the Education Act 1996 is not triggered if it is satisfied the education is reasonably accessible. When considering complaints about councils not making alternative education provision, we look to see if the Council has considered the relevant evidence when reaching its decision. We do not come to our own view on whether the education is reasonably accessible.
The Council considered School A could meet Y’s needs and the education was accessible to her. There is no evidence to show how the Council reached this decision. The Council’s records should demonstrate how it explored and considered whether there were medical or other reasons for Y’s absence. Our principles of good administrative practice say councils should give reasons for their decisions and keep proper records. There was therefore fault in the way the Council has determined that the education was available and accessible to Y as it has not recorded how or why it decided this.
However, I do not consider this fault caused injustice to Y. This is because, on balance, I consider it likely that, even if it had been properly recorded the Council’s decision would have been the same. That is, that the education was available and accessible to Y, and it therefore did not have a Section 19 duty to make alternative provision.
I say this because, between March 2022 to October 2022, the Council was in regular contact with Mr and Mrs X about the EHCNAs and subsequently an EHC Plan for Y. The records show School A considered it could meet Y’s needs and the Council was satisfied the school could offer provision to meet her needs. Mr and Mrs X submitted evidence in support of the EHC process and so the Council was aware of their concerns about School A and mainstream provision and in a position to make a decision on whether the education was reasonably accessible to Y. When the Council received a letter from Y’s GP it considered the information provided and decided it did not provide sufficient evidence to indicate that Y was unable to attend school due to illness or otherwise.
The Council was entitled to decide Y could access the education and, whilst I find fault in the way this decision was reached, I cannot challenge its professional judgment.
Mrs X has said the Tribunal decided Y should have an EOTAS package. Mrs X considers this calls into question the Council’s decision that the education at school was not accessible for Y. The Council could only make its decision on whether the education was accessible for Y based on the information it had at the time. The fact that Y now has an EOTAS package does not call into question the past decision of the Council that the education was accessible for her.
Final decision
I have found fault by the Council, but this did not cause an injustice to Y. I have completed my investigation on this basis.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman