The Ombudsman's final decision
Summary: Miss X complains the Council gave inaccurate advice and failed to provide her son, Y, with suitable or alternative education provision. We have concluded our investigation having not made a finding of fault by the Council. The Council followed its Emotional Based Support Avoidance (EBSA) ladder to assist Y back into school, and education provision remained accessible and available to Y. Once the Council exhausted its EBSA ladder, it correctly made a referral to its Medical Support Panel once it had the evidence to do so.
The complaint
Miss X complains the Council gave inaccurate advice and failed to provide her son with suitable or alternative education provision. Miss X would like the Council to make up for the education her son missed, and to make an award in recognition of the impact events had on her family.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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 spoke with Miss X and considered the information she provided. I also raised enquiries with the Council and considered the information it provided. Miss X and the Council were sent a copy of my draft decision, and both were offered an opportunity to comment on it.
What I found
Relevant legislation and guidance Alternative provision – General 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.
The term "suitable education" is defined as efficient education suitable to the child's age, ability and aptitude and any special educational needs they may have. The education to be arranged by the council should generally be on a full-time basis unless, in the interests of the child, part-time education is considered more suitable, for reasons of their physical or mental health. (Education Act 1996, section 19) We refer to this as section 19 or alternative provision.
There is no statutory requirement as to when suitable full-time education should begin for pupils placed in alternative provision for reasons other than exclusion. But councils should arrange provision as soon as it is clear an absence will last more than 15 days.
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).
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.
Emotional Based School Avoidance (EBSA) ladder ESBA is a term the Council uses to describe children and young people who experience challenges in attending school. It has a process - which it refers to as a ladder - which clarifies what can be expected. The Council has published guidance on its EBSA ladder; this details a five-step programme that is uses to reintegrate children back into school.
Relevant case law 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]).
Child and Adolescent Mental Health Service (CAMHS) CAMHS is a health service for children, and their families, who need support for mental health issues. CAMHS also carry out assessments for conditions such as autism.
Early Help Early help (or early intervention) is support given to a family when a problem first emerges. Early help services can be delivered to parents, children, or whole families, but their main focus is to improve outcomes for children. Early help is voluntary and families do not have to participate if they do not want to. Examples of early help services include: Parenting support Emotional health and wellbeing support Referrals to relevant agencies What happened I have included some of the key events below. This is not intended to be a comprehensive account of everything that took place.
Miss X's son, Y, transferred to School A in September 2021.
Between September and January 2022, Y's school attendance fell below 70%. Toward the end of the period, Y's attendance began to decrease, and he did not return to school in the new year.
At the beginning of January 2022, Miss X and her partner met with Special Educational Needs Coordinators where it was agreed that the focus should be on getting Y back into school.
School A contacted the Council to request support the following day. An Early Help Assessment referral was also made.
Later in January 2022, the Council and School A attended a meeting together. It was agreed that the EBSA ladder would be followed to support Y's return to school. An EBSA meeting was scheduled to take place later in January 2022.
Following the meeting in January 2022 between the Council and School A, Miss X was informed of its intention to create an EBSA Plan. School A also asked Miss X that if she did not intend to send Y back to School A, then it would like to be aware of what her intentions were for his education going forward.
The Council says that later in January 2022, Miss X submitted a request to it for a EHC needs assessment.
At the EBSA meeting, Miss X said that Y had been assessed and discharged by CAMHS. Miss X said that CAMHS informed her that Y does not have mental health issues but that he may be undiagnosed ADHD.
It was agreed at that meeting that a step-by-step approach should be taken to rebuild the relationship between Y and School A. A plan was put in place for Y over the course of the week; this included a home visit, attending school on a reduced timetable for short periods, meeting with teachers and collecting work to complete at home.
School A acknowledges that only two of the targets that were set had been achieved and that progress had again stopped due to Y's refusal to come into school for the agreed periods or to collect work.
After School A contacted the Council for advice, the Council informed School A it should set up another meeting with Miss X to discuss progress and to review next steps for Y. A further EBSA meeting was set up for a few days later.
On the same day, Miss X informed School A that Y would not be returning to school. Miss X said that Y was suffering from panic attacks and anxiety that was leaving him bed bound. Miss X also informed School A that she had contacted CAMHS for further support.
During the second EBSA meeting, Miss X advised that she did not think Y would return to school and that the Council should provide Y with alternative provision or home education. The Council advised Miss X that it had met with the SEND Home Tuition Team, and informed Miss X that Y would not currently meet any of the referral routes. The Council informed Miss X that there would either need to be medical evidence to support a referral, or evidence of attempts by School A to support Y's absence from school through the EBSA ladder. Miss X informed the Council that she felt School A could not need Y's needs.
It was agreed at the meeting that all parties would continue to try and build the relationship between School A and Y beginning with two home visits to commence the following week. The following week, Miss X contacted School A to withdraw permission for it to make any more home visits.
In early February 2022, the Council received a letter from CAMHS, endorsing that Y should not return to School A. The Council contacted CAMHS to discuss the letter and says it was agreed that a revised letter would be issued to reflect that: CAMHS had only worked with Miss X and not Y and that he had only been seen once since January 2022.
Suggesting Y could have autism was premature and would only be based on information provided by Miss X and not School A.
Suggesting alternative provision was also premature, as Y had only been declining school for four to five weeks.
The Council asked CAMHS to attend the next EBSA review meeting at the end of February 2022 so it could help inform what the next appropriate steps were.
Following completion of an Early Help Assessment, it was agreed there was no role for it to support Miss X or Y, and so it concluded its involvement.
At the EBSA review meeting at the end of February 2022, CAMHS confirmed that Y did not meet the criteria or need for its involvement.
At the beginning of March 2022, the Council agreed to complete an EHC needs assessment. The Council informed Miss X the following day.
The Council says that due to a lack of progress being made with the EBSA ladder and meetings, a referral was completed in March 2022 by School A to be considered at the Council's Medical Support Panel. The case was heard later in March 2022 and a short-term intervention placement at School B was agreed with provision solely for home tuition.
Following the outcome of the EHC needs assessment, it was confirmed that Y's needs could be met in a mainstream school with a moderate level of funding. Y was subsequently transferred to School C.
Analysis Was there fault by the Council causing an injustice?
Miss X complained that advice given by the Council regarding alternative provision was inaccurate. Miss X says the Council advised her that Y would not meet the criteria for home tuition and as a result, missed out on education that it should have otherwise provided.
The Council says it followed its EBSA ladder which sets out the process that should be followed when it identifies that a pupil is suffering from EBSA. The Council also says it made a referral to the Medical Support Panel once it had the evidence to do so.
After Y's attendance began to decline toward January 2022, School A made contact with the Council where it was agreed that its EBSA ladder should be followed. A meeting was arranged with Miss X, representatives of School A and the Council to take part in the initial EBSA meeting. A plan was put in place for Y to attend school on a reduced timetable and for work to be collected and completed at home.
The plan initially had a varying degree of success, with only some of the targets set out being achieved. It was the opinion of the Council that the plan should be given more time as it had yet to be exhausted. Miss X was unhappy with comments made by the Council about her willingness and commitment to assist with the plan. Whilst I appreciate Miss X disagrees with the Council, this does not amount to fault.
During the second EBSA meeting, Miss X requested that Y receive alternative education provision in the means of home tuition. Miss X was informed that Y did not meet the criteria for a referral at the time. I have viewed the Council's guidance for home tuition referral routes, and I have not seen any evidence that Y would have been eligible at that point.
Miss X says the Council received a letter from CAMHS that endorsed that Y should not return to School A and that home tuition should be sought. Miss X says the Council should have considered alternative education provision at this point, as it had the evidence it required to do so.
As per paragraph 12, 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 that medical evidence. The Council considered the letter it received from CAMHS; it held subsequent discussions with CAMHS and invited it to attend the next EBSA meeting to help inform next steps. CAMHS later advised that Y did not meet the criteria or need for its involvement at the time.
As per paragraph 8, 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". It was the view of the Council that School A could meet the meets of Y and there was no evidence to demonstrate otherwise. The Council was of the opinion that its EBSA ladder was suitable and was confident it would provide a platform to support Y's return back to School A.
Once the Council felt it had exhausted the EBSA ladder and no substantial progress had been made, it made a referral to be considered at the Council's Medical Support Panel, where Y was successfully placed in School B under a dual placement, and home tuition sought.
I therefore have not made a finding of fault by the Council. I found that the Council correctly followed its EBSA ladder. The Council put in place a plan to support Y's return to School A. The plan consisted of home visits, a reduced educational timetable, and schoolwork for Y to complete. While the educational provision was limited during this time, this was intended to provide a gradual build-up to help make Y comfortable and confident to return to School A. As per the Council's guidance on the referral routes for home tuition, advice given to Miss X was accurate. Education remained available to Y that was available and accessible at the time, and there was no conflicting evidence available at the time to support that it wasn't.
I conclude that in its decision, the Council took account of the relevant guidance, information made available to it, its own policies and information from Miss X. The Council followed the appropriate procedures when making this decision and I cannot therefore criticise it.
Final decision
I have concluded my investigation having not made a finding of fault. The Council followed its EBSA ladder to assist Y back into school, and education provision remained accessible and available to Y at the time. Once the Council exhausted its EBSA ladder, it correctly made a referral to its Medical Support Panel once it had the evidence to do so.
Investigator's decision on behalf of the Ombudsman