The Ombudsman's final decision
Summary: Miss X complains the Council failed to provide her child, C, with a suitable education and she also complains about C’s final Education, Health and Care Plan issued by the Council. There is no evidence of fault and the law does not allow the Ombudsman to investigate matters from November 2023 because they were subject to a tribunal appeal.
The complaint
The complainant, Miss X, complains the Council failed to provide her child, C, with a suitable education when they stopped attending school due to anxiety in March 2023.
Miss X also complains the Council: Failed to action the points that were agreed in mediation following the issue of C’s Education, Health and Care (EHC) Plan; Failed to provide the provision in Section F of C’s EHC Plan; Named a school C was unable to attend in Section I of their EHC Plan; Failed to respond to her complaints fully; and Took too long to respond to her complaint.
The 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) 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.
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) We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended) 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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I considered Miss X’s complaints and the information she provided.
I considered the information I received from the Council in response to my enquiries.
Miss X and the Council had the opportunity to comment on a draft of this decision. I did not receive any comments on my draft decision from Miss X. I considered the Council’s comments before making this final decision.
What I found
Relevant law and guidance Education, Health and Care (EHC) Plans A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them.
The EHC Plan is set out in sections. Section F specifies the special educational provision needed by the child and Section I specifies the name and/or type of school.
We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the Council can do this.
Alternative education Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) We refer to this as section 19 or alternative education provision.
Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies, “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
Suitable education means efficient education suitable to a child’s age, ability, and aptitude and to any special educational needs he or she may have. (Education Act 1996, section 19(6)) The education provided by the council must be full-time unless it decides 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 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’) The Department of Education’s non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a reintegration package. A part-time timetable must not be treated as a long-term solution.
The Ombudsman’s guidance We 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) We made six recommendations. Councils should: consider the individual circumstances of each case and be aware 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; and put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible.
The Council’s policy on Emotionally Based School Avoidance (EBSA) and access to education for children with medical needs The Council says it is committed to providing a recovery-focused model that embraces inclusive principles with a clear focus on an appropriate and timely return to school-based learning.
When ill health persists beyond 15 consecutive or non-consecutive school days the school must make a referral to the Council for advice, guidance and support. Where the school has arranged suitable educational provision for the pupil and does not require alternative provision to be provided by the Council the school must still notify it.
It is recognised and accepted that the capacity of the individual child to engage in learning may change over time. It is important, therefore, to ensure that the provision is regularly reviewed and that it continues to be both flexible and sensitive to individual need. All provision will maintain a focus on returning the child to school-based learning as soon as is reasonably possible.
The Council says it will support the family in seeking a place in a suitable local authority provision and will liaise and support the family in accessing this provision. In the cases where a family does not willingly engage with a suitable offer made, the Council will draw upon the legal processes in place to challenge non-attendance, this may include a referral to the Legal Intervention Team.
The Council has a hybrid education service called Future You that is designed to support learners for whom mainstream school is inaccessible as a result of medical or emotional vulnerabilities.
Council’s corporate complaints procedure The Council says it will acknowledge complaints within five working days and it will reply within 20 working days.
The Council has a three stage complaints process. At the first stage, the Council will try to resolve the matter directly and quickly. If the complainant is still unhappy, they can submit their complaint under Stage Two of the process where the Council will investigate the matters complained of.
The Council refers to the third stage of the process as the ‘Corporate Investigation’. The complaint will be looked at by council officers who have not been involved with the complaint.
What happened The following is a summary of events relevant to my investigation. It does not include every event that happened.
Miss X has a child, C, who has a diagnosis of Autism Spectrum Condition (ASC) and is on roll at School 1, a mainstream school. C has severe school anxiety due to autism and this affected their attendance at school. Miss X says C has not attended school since 31 March 2023.
On 2 May 2023, School 1 notified the Council of C’s difficulties in attending school, it told the Council what support it had offered so far and requested advice and guidance. The Council advised School 1 to arrange a meeting with Miss X to explore the barriers that were preventing C from attending school. Miss X declined to meet with the school.
The Council contacted Miss X for an overview of C’s current situation. Miss X advised the Council C required “online, one to one or very small group work in a space that [C] considers safe from a specialist autism provider experienced in dealing with school anxiety alongside minimal changes in staff and expectations in order for the education to be deemed suitable.”
School 1 consulted with an Educational Psychologist (EP) and in May 2023 the EP’s report was sent to the Council.
The EP recommended: Staff at School 1 to keep communicating with C so they continue to recognise they are still a part of the school community; Online learning options because C has responded well so far to the online provision and this should be considered for an agreed period to take the pressure off and prioritise their mental wellbeing; The longer term aim should be for C to return to an educational setting; A small quiet room in which to work and a plan regarding the structure of the day; An approach appropriate for students with autism and anxiety must be factored in; A learning environment to be as quiet and calm as possible; and For all parties to familiarise themselves with the Council’s EBSA guidance.
The Council considered the EP’s report before meeting with School 1 on 18 May 2023 to plan the appropriate next steps for C. School 1 then met with Miss X the following day to discuss strategies and education options for C. The potential strategies included twilight sessions for C to attend after school hours in the absence of other pupils, a part-time timetable and a reintegration package with Future You.
In June 2023, Miss X complained to the Council that it had been ten weeks and C had not accessed any education due to anxiety. She said the Council had a duty to provide education after 15 days absence and she was in the process of obtaining legal advice. I have not received any further information from Miss X about what, if any, legal proceedings she initiated against the Council.
In July 2023, School 1 requested an Education, Health and Care (EHC) needs assessment for C.
Due to the limited success of the reasonable adjustments implemented by School 1, it made a referral to Future You. Future You began working with C on 7 July 2023.
The Council responded to Miss X’s complaint on 19 July 2023. It said School 1 had developed and implemented reasonable adjustments to support attendance from the outset and it had involved the Council at an early stage to support this process. The Council said it had worked with the school to address the barriers C faced. These included reduced hours provision which appeared in the first instance to show some signs of success with C’s re-integration back into school. When it became apparent that the reasonable adjustments were not working as well as they had hoped, a referral to Future You was made.
The Council said that it was important that reasonable adjustments were considered and attempted before arranging alternative provision. The Council said it had acted in line with DfE’s guidance and the Council’s approach on Emotionally Based School Avoidance. The Council urged Miss X to keep in close contact with School 1 and raise any further concerns directly with them so they could be resolved quicker.
On 19 July 2023, Miss X requested her complaint be escalated because she was unhappy with the Council’s response and she wanted to exhaust the Council’s complaint process so she could bring her complaint to the Ombudsman. Miss X felt the Council was passing its section 19 duty to School 1 by not taking any responsibility to arrange suitable education for C. Miss X said that C had not had any education for an entire term. She was also of the view that a medical referral should have been made on the fifteenth day of C’s absence from school.
On 15 September 2023, a review took place where Miss X informed the meeting that C was unable to engage with their coach and that Future You had arranged a new coach and an induction meeting. C did not attend their initial induction meeting with the new coach and so Future You attempted to reschedule the meeting but it was unsuccessful.
On 29 September 2023, the Council wrote to Miss X to advise her it would be seeking to establish whether or not the alternative provisions and offers of adjustments to try and overcome the hurdles to C receiving an education were suitable for their needs. The Council also told Miss X that the Section 19 duty was not necessarily breached simply because C was not in education.
Miss X was of the view the Council was implying that C was choosing not to attend school and it was disregarding that C had a medical condition and severe anxiety making it impossible for them to overcome the panic attacks and attend school. Miss X said C was unable to attend the school building, Future You were only providing pastoral support and not educational provision and a medical referral should be made.
In October 2023, Miss X told Future You that she felt the provision would not work for C. The Council terminated the provision with Future You once it became clear that C was not going to engage and it arranged 10 hours of online tutoring. The online tutoring commenced on 20 October 2023.
The Council sent its Stage 3 response to Miss X on 2 November 2023. It did not uphold Miss X’s complaint about the Council failing to provide C with a suitable education. The Council said the education provision it had arranged was suitable for C. The Council apologised for the delay in responding to Miss X’s complaint.
The Council upheld Miss X’s complaint about the delays in responding to her complaints and it apologised.
On 9 November 2023, the Council received a medical referral for C from School 1. No medical evidence was sent with the referral.
On 20 November 2023 the Council issued a final EHC Plan for C and named School 1 in Section I.
In December 2023, Miss X brought her complaint to the Ombudsman about the Council failing to provide C with a suitable educational whilst they were unable to attend school.
Miss X requested mediation and a meeting with the Council took place on 10 January 2024. Action points were agreed at the meeting and they were due to be completed by 26 January 2024. The actions were not completed and so Miss X submitted a Stage 1 complaint to the Council on 12 February 2024.
In February 2024, Miss X submitted an appeal to the SEND Tribunal regarding Sections B, F and I of C’s EHC Plan.
On 29 February 2024, the Council responded to Miss X’s complaint at Stage 1. The Council responded to Miss X’s Stage 2 complaint on 1 May 2024. The Council upheld Miss X’s complaint regarding the delay in completing the actions agreed at mediation and offered a payment of £150 for time and trouble. The Council advised Miss X that matters relating to its Section 19 duty had not been investigated within this complaint because they were being considered by the Ombudsman.
Miss X was unhappy with the Council’s response and brought a second complaint to the Ombudsman about the Council ignoring large parts of her complaint, it naming School 1 on C’s EHC Plan when they were unable to attend the setting and also the delay in mediation.
Analysis 31 March 2023 to 2 November 2023 C stopped attending school on 31 March 2023. The Council is responsible for arranging suitable education for pupils who, because of illness or other reasons, would not receive a suitable education without such arrangements being made. As C was not going to school because of illness or other reasons, the Council had to arrange suitable education.
School 1 notified the Council on 2 May 2023 that C was not attending. The Council advised School 1 to arrange a meeting with Miss X to identify the barriers that were preventing C from attending school. Miss X declined to meet with the school. The Council then began working with School 1 and requested a copy of the EP report obtained by the school. The evidence shows the Council used the EP report when making the reasonable adjustments and making the arrangements for alternative provision.
It is evident the Council has accepted a section 19 duty for C. I acknowledge the provision arranged has not always been successful but this does not mean the Council is at fault. It is clear the Council has made consistent efforts to find some way to engage C in education and has provided a range of options for them. I do not consider any blame can reasonably be attached to the Council for the fact its efforts to arrange alternative provision for C were not always engaged with or that Miss X did not agree with. The Council’s duty is to make suitable arrangements and I cannot say it has failed to discharge this duty.
When a medical referral was made to the Council, no medical evidence was submitted. I am satisfied the Council used the information it had available to it such as the EP report, feedback from the provision providers and School 1, when making decisions on whether the education was reasonably accessible to Y.
I am satisfied the Council properly considered C’s individual circumstances which it kept under review. The evidence shows the Council was liaising and consulting with School 1 from when it was notified about Y’s absence from school. It is clear that the Council’s aim was always to work with all those involved and Miss X with the plan to reintegrate C back to school.
I appreciate Miss X strongly disagrees with the Council’s decisions on the alternative provision it arranged. However, I do not consider there are grounds to question the decisions because there is no evidence of fault in how they were reached.
The Council’s complaint responses were delayed. This was upheld by the Council at Stage 3 and it has apologised. There is nothing further I can add to this.
2 November 2023 – present Miss X submitted a further complaint to the Council and then brought it to the Ombudsman on 16 May 2024. Miss X is unhappy about the Council naming School 1 in C’s EHC Plan, not delivering the provision in Section F of the EHC Plan, not doing what it said it would at mediation and the lack of education it has provided for C.
I cannot investigate these matters because we cannot investigate matters from when the right of appeal began, i.e., from when the EHC Plan was issued.
Miss X has appealed the EHC Plan to the SEND Tribunal. When a person appeals to a tribunal about a matter, this presents a jurisdictional bar to the Ombudsman being able to investigate the same matter.
The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan or disputes the level of support provided in an EHC Plan which links to the reason a child was absent from school, we cannot seek a remedy for lack of education. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
Therefore, I am unable to investigate matters from 2 November 2023 because Miss X has lodged an appeal with the SEND Tribunal and they are best placed to deal with the matters she has complained of.
Final decision
There is no evidence the Council is at fault. I have completed my investigation and closed Miss X’s complaints.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman