The Ombudsman's final decision:
Summary: Ms X complains the Council has failed to provide suitable education for her daughter since October 2016. The Council was aware Y was missing education but failed to make arrangements for a suitable education. The Council also delayed in satisfying itself that Ms X was ensuring Y received an education. These failings amount to fault causing an injustice. The Council has agreed to remedy this injustice.
- The complainant, whom I shall refer to as Ms X complains the Council has failed to provide suitable education for her daughter since October 2016.
- Ms X also complains the Council has failed to respond to her complaints
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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(i), as amended)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by Ms X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- discussed the issues with Ms X;
- sent a statement setting out my draft decision to Ms X and the Council and invited their comments. I have considered Ms X and the Council’s response.
What I found
- Local authorities must make arrangements for suitable education, at school or elsewhere, for pupils who, because of illness, permanent exclusion or other reasons, would not receive suitable education without such provision. (Education Act 1996, section 19)
- ‘Suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs he or she may have. The Children, Schools and Families Act 2010 clarified that the education should be full time but could be part time if considered in the child’s best interests. This would be where the child has physical or mental health problems.
- Government guidance ‘Alternative Provision Statutory guidance for local Authorities January 2013’ advises that the duty to provide alternative education applies to all children of compulsory school age resident in the local authority area, “whether or not they are on the roll of a school, and whatever type of school they attend.”
The parents’ duty
- Section 7 Education Act 1996 creates a duty for parents to ensure their children to receive education. This may be via education at home. A failure to meet this duty on the parent’s part is an offence.
- The Council is required to identify children not receiving an education, and can serve a notice on parents requiring them to satisfy the council that their child is receiving suitable education. Councils can issue a School Attendance Order (SAO) where parents fail to satisfy them. The Education Act also allows councils to prosecute parents who do not comply with an SAO, or who fail to ensure the attendance of their school-registered child.
What happened here
- Ms X’s daughter, Y attended School 1 from January to September 2016. School 1 removed Y from the roll on 30 September 2016 as she was attending School 2. Ms X states she had been advised a mainstream school was not suitable for Y and had enrolled Y at School 2 on a trial basis. Ms X had asked School 1 to keep Y on the roll during the trial, and states it had agreed.
- Y was a pupil at School 2 until she was excluded in early October 2016. Ms X contacted the Council to ask what provision it could offer Y. Ms X informed the Council she had discussed Y’s needs with School 1 and they agreed Y could not be placed in a mainstream school and home learning may be the safest option.
- Y did not have an Education, Health and Care Plan (EHCP). The Council advised Ms X that in order to provide educational provision through the medial needs team it would need documentation to confirm Y was medically unfit to attend school due to her mental health.
- Ms X provided a copy of a medical report from the previous year which recommended a combination of e-learning and attendance at school. She considered this along with the information held on Y’s school file was sufficient for the Council to make a decision. Ms X made a formal complaint about the Council’s refusal to provide e-learning. The Council did not uphold her complaint.
- In addition, Ms X made an application for in year admission back to School 1.
- In November 2016 a Medical Needs Coordinator considered the information Ms X had provided and reviewed Y’s social care assessment. The officer noted the evidence provided did not state Y was unable to attend school due to ill health. He recommended the Council refer Y to the Short Stay School for Norfolk (SSSfN) as a child missing education (CME). The Council commissions the SSSfN to provide an education for children living in Norfolk who after 15 school days have been unable to obtain a place in a school. An officer agreed to make this referral in November 2016, but noted they were currently full and would not offer Y any provision. There is no record of a referral at this time, and the officer subsequently confirmed in an internal email that they made the referral on 17 February 2017.
- The medical needs coordinator also wrote to Ms X and advised that based on the documentation Y did not meet the criteria for support from the medical needs team. The documentation she had provided did not state that Y was medically unfit to attend school. They confirmed that to provide a home tutor service they would need a current letter form a suitably qualified medical professional that clearly states Y was unable to attend school due to ill health.
- The medical needs coordinator noted that Y had indicated in her social care assessment that she would be happy to return to School 1 and suggested Ms X consider this or another mainstream school.
- Ms X maintained the information she had provided should be sufficient to establish a medical need, and that her GP was unable to write in the terms the Council had requested. She confirmed she had made an application to School 1, but had not had a response. Ms X also queried why the officer had access to Y’s social care assessment when she had not received a copy.
- As Ms X was concerned Y was not receiving an education, she arranged private tuition in maths, english, human biology, biology and chemistry. She subsequently arranged for Y to take five IGCSE exams. Ms X has provided receipts and invoices for the cost of Y’s tuition, work books and exam entries which total £2,280.14.
- Ms X has asked the Council to reimburse the cost of this tuition, materials and the exams.
- The Council has not provided evidence of any attempts to provide Y with a suitable education following her exclusion from School 2 in October 2016.
- The Council identified Y as a CME and made a referral to the attendance team in October 2016. There was a delay in following this up. An Attendance Support and Enforcement Officer contacted Ms X in February 2017 to arrange a visit to discuss what arrangements were in place for Y’s education.
- By this stage Ms X had made complaints to the Council about other issues and had started legal action against School 1. She confirmed she would communicate with the officer in writing, but was unwilling to meet with the council officers unless a solicitor was present. Ms X also advised the officer she had withdrawn permission for Children’s services to access her own and Y’s personal information. She questioned what information the officer had already accessed without her consent.
- The Council also identified in February 2017 that it had not formally responded to Ms X’s application for a place at School 1 in October 2016. The Council refused the application, and Ms X appealed this decision.
- Miss X did not meet with the Attendance Support and Enforcement Officer. The Council noted Ms X had appealed School 1’s refusal to offer a place, Y was now on the waiting list for SSfN and she was receiving e-learning. It determined there was no active role for the Attendance Support and Enforcement Officer.
- The Council then closed Y’s case in June 2017 as she was no longer of statutory school age.
- Ms X complained to the Council about the failure to ensure Y received an education, and about the Attendance Support and Enforcement Officer’s contact in February 2017. She also asked the Ombudsman to investigate as she was unhappy with the way the Council had dealt with other complaints she had made. We referred the matter back to the Council and asked it to respond.
- The Council arranged a meeting with Ms X to discuss her complaints, but Ms X experienced difficulties in parking at the Council’s offices. She has made a complaint about the way she was treated by staff in the car park. The Council apologised for any upset she experienced. Rather than re-arrange the meeting, the Council then responded to Ms X’s complaint in writing.
- The Council did not uphold Ms X’s complaint. It states it advised Ms X throughout that the information provided did not show Y was medically unfit for school. She would therefore need to see a school placement through the usual admission routes. The Council states educational provision was available but Ms X did not agree to what was on offer to Y
- Ms X is not satisfied with the Council’s response to her complaint. She was also unhappy that the same officer had dealt with her complaint at different stages of the complaints process.
- The Council was aware in October 2016 that Y was not attending school. We would have expected it to take decisive action, to either arrange suitable education, or to satisfy itself Ms X ensured Y received an education.
- The Council did not arrange home learning as it did not accept Y was medically unfit for school. But there is no evidence it considered Y’s fixed exclusions from School 1, or her permanent exclusion from School 2; or any other reasons Y may be unable to attend school. I consider this failure amounts to fault on the part of the Council.
- The Council suggested Ms X apply for a school place for Y, but did not offer any assistance in identifying suitable schools and failed to respond to her application for a place at School 1. This failure amounts to fault.
- The delay in satisfying itself that Ms X was ensuring Y received an education also amounts to fault. The Council identified Y as a CME in October 2106, but did not make a referral to SSSfN or allocate the case to an Attendance Support and Enforcement Officer until February 2017.
- The principal injustice when a child is out of education is to the child. In this instance Ms X is not making a complaint on behalf of Y so I am unable to consider the extent of any injustice to her. I can only consider whether the faults identified have caused Ms X an injustice.
- Ms X has been put to the stress; time and trouble; and expense of arranging private tuition for Y and in supporting her with her learning. She has also been put to unnecessary time and trouble in pursuing this matter with the Council.
- The Council has agreed to apologise to Ms X and pay her £500 in recognition of the stress; and unnecessary time and trouble she has been put to by the faults identified above.
- The Council has also agreed to reimburse Ms X £2,280.14 in respect of the cost of the tuition, course materials and exam entrance fees she has incurred.
- The Council should carry out these actions within one month of the final decision.
- The Council’s failure to arrange suitable education for Y amounts to fault causing an injustice. The Council has agreed to remedy this injustice.
Investigator's decision on behalf of the Ombudsman