The Ombudsman's final decision:
Summary: The Council acted with fault when responding to and managing education provision for a child unable to attend school due to ill health.
- The complaint in brief is that, when overseeing a student’s education, the Council failed to:
- Provide alternative education for a student absent from school due to ill-health;
- Regularly assess the student’s needs and ability and provide alternative education which gradually increased with any progress in the student’s health;
- Properly consider, investigate and respond to the 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A (1), as amended)
- If 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
- In considering this complaint I have:
- Spoken with Mrs X and reviewed the information provided in the complaint
- Put enquiries to the Council and reviewed its response;
- Researched the relevant law, government guidance and policy;
- Shared with Mrs X and the Council my draft decision and reflected on the comments received.
What I found
- Councils must arrange suitable full-time education or education adapted to the student’s ability and needs for pupils who cannot attend school because of illness. (Education Act 1996, section 19, as amended)
- In January 2013, the Department for Education issued guidance entitled “Ensuring a good education for children who cannot attend school because of health needs.” This guidance says the Council must arrange suitable full-time education for children who would not receive it because of illness. Councils should provide alternative education when it is clear the child will be way from school for 15 days or more whether that is consecutive or cumulative. The Council should liaise with the medical professionals and ensure minimum delay in arranging appropriate provision. The guidance applies to all schools including independent schools and academies.
- In the summary of the guidance it says the government does not expect councils to act where the child receives suitable education provided by the school during their illness. That is unless the education is not suitable or while otherwise suitable, is not full-time or for the number of hours the child could benefit from without adversely affecting their health. It says this may be the case where a child can attend school but only intermittently.
- The guidance says councils should discuss the child’s needs and how best to meet them with the School, the relevant clinician and the parents. Where appropriate councils should discuss it with the child. It says where a child’s education has been disrupted for long periods councils should avoid further discontinuity.
- The alternative education must be of good quality as set out in the guidance also issued in 2013 entitled “Alternative Provision”. It should prevent the child from slipping behind their peers in school and allow them to reintegrate successfully on return to school. Where a child is not excluded from school but cannot attend due to ill health there is no statutory rule on when suitable full-time alternative education should begin. However, the guidance says it should start as quickly as possible.
- The guidance says councils must not:
- Withhold or reduce provision because of the cost;
- Use policies which use a percentage of the time a child can attend school to decide what provision it will give, rather than whether the child is receiving a suitable education;
- Use lists of health conditions which dictate whether they will arrange education for children or inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in).
- Have a named officer responsible for the education provided to children with added health needs and the parents should know who that person is;
- Have a written publicly accessible policy statement on their arrangements to comply with their legal duty towards children with added health needs. The Policy should make links with related services in the area such as Child and Adolescent Mental Health Services (CAMHS) and Education Welfare;
- Review the provision offered regularly to ensure it continues to meet the child’s needs;
- Have a clear policy on providing education.
- Although registered with a school Y could not attend regularly because of ill health. Mrs X says that as early as March 2014 she made it clear to the Council Y could not attend school regularly yet, she says, it did not consider intervening and offering alternative education. The Council says the school had funding for Y’s education and it is up to the school how it uses that in providing Y with home tuition and other educational support. The School as well as the Council is subject to government guidance on providing suitable education including providing alternative education during periods of ill health. The Council says it is for Y’s school to manage the process and refer to the Council for tier 2 and 3 support services when needed. The law also imposes on the Council a duty to identify and act to support, any child not receiving a suitable education. That means it should review if suitable alternative education is being offered by the School once it knew of Y’s poor attendance.
- Before June 2015 the Council says it cannot find an audit trail to show how it offered support. It says there is a record of 20 unauthorised absences from school by 6 March 2015. Education welfare support services (called Local Support Teams) carried out three visits between 2014 and 2017. Mrs X says officers did not visit between 2014 and the visit in 2017. She complains the Council has not managed or reviewed provision provided by the School to Y or offered anything directly from the Council. The Council says the deficits in the audit trail mean it cannot offer evidence in support of anecdotal evidence officers visited.
- In June 2015, the School referred Y to the Council for support. For a Child Missing Out on Education this is an important event. The School has responsibility for providing an education to the pupil but when it refers that pupil for support from the Council then the Council has a duty to act. It must assess what needs the child has and what provision or support it should make. Usually professionals discuss this in link meetings with minutes taken and action plans drawn up so all know what they must do before the next meeting.
- The Council says link meetings between the School and the Council’s Education Welfare officers discussed Y. However, it did not take formal minutes of the meetings or send copies to the School, education officers and Mrs X. Therefore, the Council has no record of what officers said or action plans showing what support officers had considered and provided for Y. When considering Mrs X’s complaint at stage 1 of its complaints procedure the Council accepted this did not meet the Council’s service standards.
- Government guidance says the Council should have a procedure for all schools (including academies) to alert the Council if a child is missing for more than 10 days without permission. It should also keep a register of those children who are missing education. The Council should track the progress of children who attend school for less than ten hours a week. This helps councils identify those pupils who may not be receiving full time or suitable education and may need their help. In responding to my enquiries, the Council recognises it did not have a system in place. It does now and Oftsted approved it during its inspection in August 2017.
- Mrs X says Y’s health prevented regular attendance at school from January 2014. The School became an academy in March 2016. Before that it was a state school under the Council’s authority.
- Following the transfer to an academy Mrs X says the School pressured her parents (who were looking after Y) into signing an agreement accepting limited home tuition of four hours education per week from May 2016. The Council has no copy of this agreement. It has a copy of a letter dated 12 July 2016 confirming Y would repeat year 11. The letter says an increase from two hours home tuition would be preferable. There is no record of the Council following up on these proposals or showing how it assessed them as meeting Y’s needs. It has no record of when and how it reviewed this provision. While the School is responsible for providing alternatives, the Council has a duty to oversee that. It should discuss with the relevant professionals, Mrs X and Y how that provision meets Y’s needs and what else Y may need. The Council says Mrs X did not engage with it and that made it difficult to offer services to Mrs X and Y.
- The Council appointed an Educational Psychologist under the Council’s Exceptional Circumstances Policy to conduct a further special educational needs assessment. It commenced an education, health and care needs assessment in January 2017 leading to the Council issuing an EHC Plan in June 2017 (after an appeal against a refusal to do so was upheld by the Tribunal).
- In an audit held in January 2017 the Council accepted its education welfare service provided an inadequate service and a service below the standards expected when supporting vulnerable students. In its response to Mrs X’s complaint at stage 1 of the Council’s complaint procedure, the Council says it accepts this is a fault.
- In response to Mrs X’s complaint the Council says that it could not investigate the number of hours’ education provided by the School. The Council says it is for the School to decide how it uses the funding to provide Y’s education. It has no records of how it provided for Y’s needs. In the Council’s view, the School decided what education Y needed and what provision to provide, not the Council. The Council says it need only intervene if it has concerns the School is not providing Y with a suitable education.
- The Council says Y is not a Child Missing School (i.e. a child who is out of school because of exclusion or not on the roll of any school). The Council classified Y as a Child Missing Out On Education (a child with a school place who is out of school). The Council says its duties to provide alternative education apply only to a Child Missing School. Y did not meet the criteria for this classification and so it says it has no duty to provide her with alternative education. It does not deny it should offer her education welfare support. It also accepts it has a duty to identify a child who may not be receiving suitable education. However, the Council says it services are hampered when parents do not behave in a ‘manner conducive to partnership’. It says Mrs X’s challenging behaviour prevented its services offering more help.
- In a letter of 13 April 2017, the Council accepted it had not taken a proactive stance. It has limited records of link meetings or actions taken to provide support for Y even though the School referred her for help. The Council accepted that between January 2014 and June 2015 the Council missed opportunities to support Y. Officers said they could not do more because Mrs X would not engage with the Council. The Council accepts this rationale does not explain the lack of support for Y and fell short of the expectations of working with mainstream schools and supporting vulnerable students.
- The Council cites management failings for part of the service failure and says a lack of ownership resulted in untimely and ineffective responses from the local support team (the Council’s educational welfare service). In its response to the stage 1 complaint the Council accepts this fault in the service offered.
- Mrs X complains the Council shredded or lost its files on Y’s education. Mrs X says in the Council’s response to her complaint it said she had met an officer whom she did not know, had never heard of and had most certainly never met. This reflects in Mrs X’s view the in inadequacy of the Council’s service.
- In responding to my enquiries, the Council says its variable practice and inconsistency in approach to Y’s support may have contributed to Y’s lack of progress. It recognises had it implemented more robustly its school attendance code of conduct it may have intervened earlier. However, it also says that Mrs X’s actions such as restricting which professionals could work with Y or access information prevented officers offering support. In the Council’s view, there has been long term refusal by Mrs X to engage with the Council. It believes this has imposed barriers to improving services for Y. That said the Council says it remains committed to working with Mrs X and Y to help support her on her path to an independent life. The Council says until Y’s formal diagnosis it did not know exactly what Y’s condition was and how it affected her ability to learn and participate in tuition.
- The Council says during the last two years up to 20 different professionals from several disciplines have been engaged in considering what needs Y has and what it could provide. It has learned from the complaint. The Council has introduced new quality assurance procedures: developed a Without Education Practitioners group to help professionals focus on those not accessing education and brokering plans in response to their needs. It is reviewing oversight of the link worker meetings and sharing with staff an understanding of their purpose and function. The Council is developing a new ‘children missing from education due to ill health policy’ to encourage consistency.
How much tuition could Y cope with?
- In deciding on suitability, the Council must consider Y’s ability and the limits on how much education she could access given her health. In 2015 when referring Y to the Council for help her school assess her as capable of receiving up to 20 hours a week 1:1 tuition. That is four hours daily. This is less than the government guidance’s recommendation of 25 hours weekly but reflects what the School believed Y could achieve.
- Y received on average four hours tuition per week, not per day.
Analysis – has there been fault leading to injustice
- The Council makes a distinction between a Child Missing Education and a Child Missing Out on Education. This distinction appears in some government guidance to councils on what services they must provide and what services they may provide. However, the guidance outlined in paragraphs 8 and 11 of this statement do not make that distinction except for when any alternative provision should begin. I note the Council disputes my interpretation however, it still has a duty to identify any child not receiving a suitable education be that through home education or from a school.
- Therefore, in my view regardless of whether a student is a Child Missing Education or a Child Missing Out on Education the Council still has a responsibility for:
- Ensuring Y receives a suitable education;
- Providing Y with support and getting feedback from the School through the work of its local support team (education welfare officers);
- Collecting information on Y’s medical needs and conditions;
- Acting to resolve the lack of full-time education since 2014 and especially following a referral by the School in June 2015.
- Failed to keep proper records and share those records of link meetings, reviews, and work undertaken with Y, Mrs X and the School and lost or destroyed some records;
- Failed to review and assess if the tuition offered by the School during Y’s absence met her needs;
- Failed to propose and agree with the School, Mrs X and Y what further provision Y needed, how often it would be reviewed and plan for increasing the provision the longer Y remained out of School
- Failed to regularly review progress and consider what alternative provision it may offer once Y would clearly not return to school after 15 days;
- Failed to consider a plan for getting Y back into school or making alternative arrangements if unable to attend;
- Failed to have a named officer with overall responsibility for children with added health needs and failed to refer Y to that officer;
- Failed to show through complete records how the named officer oversaw the provision of support and education to Y or when or if the named officer regularly reviewed progress;
- Failed to follow up on Y’s medical needs and act in the spirit of the guidance which says it should not be inflexible about what conditions are considered serious enough for it to trigger its duty to provide alternative education;
- Failed to consider the guidance applicable to children missing out on education and show it had policies required by that guidance;
- Failed to respond appropriately to complaints made by Mrs X.
Recommended and agreed action
- To remedy the injustice arising from the faults identified in this investigation I recommend and the Council agrees to within six weeks of my final decision:
- Apologise to Mrs X for the faults and the impact on her and Y;
- Pay to Mrs X £250 in recognition of the additional time and inconvenience to which she has been put in bringing a complaint to the Council and the Ombudsman;
- Pay to Mrs X on Y’s behalf £7,650 in recognition of the two years missed educational opportunities and to enable her to obtain further independent support;
- Reflect with the Learning Support Team (education welfare) learning points arising from the investigation such as good record keeping, identifying a child missing out on education and when to act.
- I find the Council acted with fault in overseeing whether Y received a suitable education leading Y to miss out on provision delaying progress for her.
Investigator's decision on behalf of the Ombudsman