The Ombudsman's final decision:
Summary: The complainant alleged that the Council failed to provide appropriate alternative education to her son who was unable to attend school for medical reasons. The Ombudsman recommended a professionals’ meeting to resolve the situation and this led to a referral to the Council’s medical school. This was an appropriate remedy. But there are now fresh complaints about the delay in making this referral and complaints about the lack of occupational therapy which the Ombudsman will investigate as a new matter.
- The complainant, who I shall refer to as Mrs X, complained that the Council was failing to provide suitable alternative education to her son, who I shall refer to as C. At this stage, C was in Year 10 and therefore had just started his two year GCSE work.
- C has special educational needs and has a diagnosis of high functioning autism. C is currently unable to attend his current school, which I shall refer to as School Y, because of an assault on him when at school. C requires dental surgery as a result and is also suffering from additional anxiety.
- Mrs X complains that the Council only offered 7 hours home tuition per week and that this is insufficient and C is at risk of falling behind on his GCSE work. C has a medical note confirming that he is medically unfit to attend School Y.
The Local Government and Social Care Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. He 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, he may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
- The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
- 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)
- The final statement will be sent to the Office for Standards in Education, Children Services and Skills (OFSTED) in accordance with the arrangement the Ombudsman has to share findings with this organisation.
How I considered this complaint
- I have spoken to Mrs X on the telephone and obtained the Council’s written response to the complaint. Mrs X has provided further comments. I issued a draft decision statement and the Council agreed to arrange a professionals’ meeting to discuss C’s alternative provision.
What I found
Legal and administrative considerations
- Section 19 of the Education Act 1996 says “councils must make arrangements for the provision of suitable education at a 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 arrangements are made for them”.
- The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
- Full time education is not defined but is commonly held to be equivalent to between 22 and 25 hours, depending on the child’s age. The law also allows councils to view one-to-one provision as worth more than provision delivered to groups.
- Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.
- The 2013 Guidance says that 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. Where full-time education would not be in the best interests of a particular child because of reasons relating to their physical or mental health, councils should provide part-time education on a basis they consider to be in the child's best interests. Full and part-time education should still aim to achieve good academic attainment particularly in English, Maths and Science.
- The guidance stresses the need for medical information to inform the decisions about what education a child or young person may be able to manage. It states that “In order to better understand the needs of the child, and therefore choose the most appropriate provision, LAs should work closely with medical professionals and the child’s family, and consider the medical evidence. LAs should make every effort to minimise the disruption to a child’s education. For example, where specific medical evidence, such as that provided by a medical consultant, is not quickly available, LAs should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
- The guidance states councils should ensure alternative education is arranged as quickly as possible and that it appropriately meets the needs of the child. It also stresses the need to include the young person, when age appropriate to do so, in the discussions and decisions reached about his or her educational provision.
- Councils must have a written, publicly accessible policy statement on their arrangements to comply with their legal duty towards children with additional health needs. There should also be a named officer responsible for the education of children with health needs and parents should know who that person is.
Special educational needs
- Councils must identify and make a statutory assessment of those children for whom they are responsible who have special educational needs and who probably need an Education, Health and Care Plan (EHC Plan).
- C has had a Statement of his Special Educational Needs under the previous legislation. This has recently been converted to an EHC Plan.
- The Autism Act 1999 and subsequent Guidance in 2010 recommended staff should have an awareness and training in working with those with a diagnosis of autism or Aspergers.
The Council’s procedures for pupils with medical needs
- The Council provides education for those with health needs who are unable to attend school. Pupils will be dual registered. Referrals should be made to the Council’s Health Needs Education Service (HNES) after 15 consecutive days of non-school attendance and where it is considered there is a limited prospect of a return to school in the immediate future.
- As a guide to accessing its HNES, the Council’s policy states that it is for pupils:
- with acute medical needs;
- the pupil’s health has significantly reduced their ability to access their home school;
- a senior medical professional (such as a consultant, Child and Adolescent Mental Health Services (CAMHS) is proving support, diagnosis or advice;
- a change of medication may mean the pupil requires increased medical review/intervention;
- an acute mental health condition is disrupting the young person’s ability to attend school.
- The Educational Occupational Therapy (OT) report of June 2016 referred to C as being diagnosed with Autistic Spectrum Disorder (ASD), dyslexia and functional behaviour delays. The OT also noted C has hyper mobile joints, sensory difficulties, sensory modulation, visual perception and auditory difficulties.
- In July 2017 C was subjected to an assault by other pupils at School Y. He suffered injuries to his wrist, teeth and head. Since this incident, C has been considered medically unfit to attend School Y. Mrs X has provided the required medical proof of his injuries and that he has been medically unfit to return to School Y.
- Since C’s injury, there were discussions and correspondence between Mrs X and the Council about what constitutes suitable alternative educational provision for C. The Council initially offered C a place at an off-site unit attached to a special school which caters for pupils with a range of needs and cognitive capacity. The Council has explained to Mrs X that the special unit staff are fully qualified to teach a range of GCSEs, classes are small (5 pupils) and there is a Teaching Assistant in all classes.
- The Council says that C could have attended full time at this special unit and that it is not a pupil referral unit as alleged by Mrs X. The off-site unit is 1.8 miles from Mrs X’s home and can be accessed via public transport. The Council says that C would not be entitled to free school transport.
- Mrs X explained to the Council that this option was not appropriate for C given his injury, the effects of the assault on him and his special educational needs. She also explained C would be unable to travel on public transport because he becomes too anxious and he cannot cope with crowds and noise. Mrs X is unable to drive.
- Mrs X also explained that it would not be appropriate for C to receive education at the local library, another option offered to Mrs X, because C would be unable to cope with the distractions and she would not be able to get C to attend the library. Mrs X asked for full-time tuition at home for 25 hours per week.
- In response, the Council asked C’s GP about the need for C to have home tuition, among other questions. On 8 September 2017, the GP responded to the Council’s request for information. The GP stated that he had no reason to disbelieve Mrs X’s account of the situation. The GP stated C would be medically fit enough to manage sensory integration OT sessions. But the GP provided no specific comment regarding the need for alternative education to be provided only at home.
- The Council considered that there were no medical grounds for providing 25 hours tuition only at home. The Council offered Mrs X three options: full-time education at the special unit; home tuition of 6 hours accompanied by online learning or a part-time package based in the local library (which is within walking distance to his home).
- Mrs X considered that the Council was failing to understand the difficulties that C has because of his ASD diagnosis and in addition he is now suffering symptoms of Post-Traumatic Stress Disorder (PTSD). C was also due to have extensive dental surgery. He remained medically unfit to attend School Y and his certificate has remained in force for the past months.
- On 21 September Mrs X accepted the 6 hours home tuition offered but stated that the level of home tuition was insufficient and C was in danger of falling behind on his GCSE work. The Council wrote to the home tutors asking them to increase the hours if they could do so. The home tuition was increased to 7 hours per week. The Council also approached another home tuition provider but they were unable to assist. The Council said that an additional 4 hours were also available to C at the library.
- C was seen by the CAMHS because of his increased anxiety because of the assault. Mrs X says C is not sleeping and he keeps thinking about the assault. She says that the Council allowed C to have 20 hours home tuition in 2015 so she does not understand why the Council could not offer this. Mrs X also says one of the home tutors said that C cannot access education, at the special unit, as suggested by the Council because of his difficulties.
- The Council was satisfied that there was no medical evidence to support the fact that C can only access educational provision in the home environment. The Council deals with requests on a case by case basis. But, in most cases, alternative education is normally provided outside the home with a range of alternative providers. If home tuition is provided, this is normally up to 15 hours per week.
- C has also not been receiving OT provision. The Council has said that there are problems obtaining OTs and recently they cancelled C’s OT sessions because of non-engagement. Mrs X had wanted to speak directly to the OT but the Council had been unable to allow this. The Council had offered Mrs X a personal budget to purchase OT support for C but Mrs X subsequently declined this offer.
- There has been a disagreement between the Council and Mrs X about whether C could receive alternative education at another place besides at home. Mrs X is clear that he cannot because of his SEN, PTSD and the extent of his injuries. The Council, on the other hand, says that there was no medical evidence to support this and it had offered full-time education to C at a suitable off-site unit attached to a special school but which Mrs X had chosen not to accept.
- However, the Council was offering some home tuition, even if it considered C could attend its off-site unit. That was to the Council’s credit. But I was not satisfied that the provision of 7 hours home tuition was sufficient to enable C to manage the start of his GCSE work. The Council’s argument, however, was that fulltime education was available to C and therefore this was the most amount of home tuition hours which the Council could or was willing to offer.
- I recommended therefore that the Council arranged a professionals’ meeting with the key agencies, CAMHS, GP, OT and home tutors, as well as Mrs X and her husband, to consider whether C was medically able to access tuition anywhere else besides in the home environment. I asked that consideration be given also to the OT report of June 2016, which detailed C’s difficulties. The Council agreed to this course of action in order to resolve the complaint.
- The professionals’ meeting took place on 31 January 2018. Mrs X explained in writing that the Council had been unwilling to accept the information from C’s GP, that the Council was failing to provide the OT specified in C’s Statement and that the Council could have sought CAMHS’ advice when converting C’s Statement to an EHC Plan.
- The Council made a note of the meeting. A Consultant from CAMHS explained that she had assessed C and confirmed he was presenting with PTSD symptoms. The Consultant explained that C would be referred for trauma therapy. She recommended a phased transition back to school for C and stated that there was no reason for C to have home tuition in the home environment.
- The Council decided that, because there was an assessment from CAMHS and C required additional support, it could now make a referral to its Health Needs Education Service (HNES). In the meantime, the home tuition would continue and the Council also remained of the view that C could attend the off-site unit to receive full-time education. Therefore, it had met its obligation to provide alternative education while C was unfit to attend School Y.
- The Council did not make any further recommendation about C’s OT support. The provision of OT services to C continued to be subject to disagreement between Mrs X and the Council.
- After the professionals’ meeting at the end of January 2018, the Council made a referral to its HNES. C was accepted and, after discussion about whether C was entitled to free school transport, C started at the medical hub at the beginning of the summer term. C has settled well at the hub.
- However, Mrs X now questions why the medical hub could not have been offered earlier. She was also initially told C could only remain there for 6 weeks although C is still attending the medical hub.
- The Council has explained that a referral to HNES was not made earlier because there was no CAMHS involvement or information about C’s mental health needs. Once the Council had the information from the Consultant at CAMHS, it referred C to HNES. The Council’s policy says that the criteria for access to its HNES should be used as a guide. This, I understand, means that there is some discretion about who the Council will refer for consideration.
- There is also no agreement between the Council and Mrs X/C regarding C’s next school placement as from September 2018. But it has been agreed that he cannot return to School Y.
- Mrs X has now appealed to SENDIST about C’s next placement.
- The Council considered Mrs X’s objections to the offer of full-time education at the off-site unit and it was satisfied that this was appropriate for C.
- The Ombudsman cannot question the merits of decisions, taken properly, and therefore I recommended a professionals’ meeting to consider the suitability of the off-site unit for C. This would enable views from a range of professionals involved in C’s predicament to be considered. While the meeting did not specifically resolve matters about the appropriateness of the off-site education, it led to the successful referral of C to the medical hub which he now attends.
- However, given that the medical hub has proved the right placement for C, Mrs X has queried why this referral could not have been made earlier. I have decided to treat this as a new complaint for investigation.
- The issue of OT provision over the past year has also not been fully addressed by the Council. I am aware of the long-standing dispute between the complainant and the Council about OT provision. This will be incorporated into the new investigation.
- The Council agreed to arrange a professionals meeting, as recommended, and this resulted in a successful referral of C to the medical hub. C is now settled there and is receiving a full-time education. I am therefore satisfied that the professionals’ meeting helped to progress matters and provided an appropriate way to resolve Mrs X’s original complaint. But, there remain other outstanding complaints which will be investigated by the Ombudsman.
- I have decided that there is no fault by the Council on this complaint because the Council arranged a professionals’ meeting as recommended. But the new complaints about the delay in making the referral to the medical hub and about the lack of OT provision will be considered by the Ombudsman as a fresh complaint.
- I have therefore completed this investigation and I am closing the complaint.
Investigator's decision on behalf of the Ombudsman