The Ombudsman's final decision:
Summary: Mr and Mrs X complain the Council have failed to provide alternative education for their child, Y, who was unable to attend school for health reasons. The Council was at fault for the way it dealt with the provision of alternative education for Y. The Council agreed to apologise to Mr and Mrs X and pay them £800 to use for the benefit of Y’s education.
- Mr and Mrs X complain the Council have failed to provide alternative education for their child, Y, who was unable to attend school for health reasons.
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
- I spoke to Mrs X about the complaint.
- I considered the Council’s response to my enquiries.
- I considered:
- The alternative provision statutory guidance for local authorities.
- The ensuring a good education for children who cannot attend school because of health needs statutory guidance for local authorities.
What I found
- Section 19 of the Education Act 1996 says 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.
- 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 guidance applies to all schools including independent schools and academies.
- The guidance 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.
- The guidance says children unable to attend school because of health needs should be able to access suitable and flexible education appropriate for their needs. The nature of the provision must be responsive to the demands of what may be a changing health status.
- The guidance says the Council should review the provision offered to ensure it continues to be appropriate for the child and that it is providing suitable education.
- The guidance entitled alternative provision says the alternative education must be of good quality. 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.
- Mr and Mrs X have a child, Y, who has Asperger’s syndrome and panic disorder. In 2017 Y was 15 years old and was attending a mainstream secondary school, school A. In December 2017, Mr and Mrs X asked school A to submit a referral for Y to attend school B which caters for children with anxiety problems. School A however said there was no medical evidence to support such a referral for Y. On 8 January 2018, Mr and Mrs X removed Y from school A. Mr and Mrs X said Y was physically unable to attend school because of their medical conditions.
- Mr and Mrs X said they verbally told the Council on 16 January that Y would be unable to attend school for health reasons and it would continue for at least the next 15 days. Mr and Mrs X provided both school A and the Council with medical evidence to support Y’s absence on 23 February. School A accepted the medical evidence and changed Y’s absence from unauthorised to authorised due to medical reasons.
- Mr and Mrs X said school A tried to maintain links with Y during January and February by providing work for Y to complete at home. Mr and Mrs X however said school A failed to mark the work and provided no formal teaching for Y.
- Mr and Mrs X wrote to the Council on 27 February to ask for an update on the way forward for providing Y with an education. The Council responded to Mr and Mrs X on 5 March and said school A would make contact. This was with a view to arranging a multi-agency meeting to discuss the way forward for Y.
- On 8 March Mr and Mrs X complained to the Council. They said the Council was in breach of the its duties under Section 19 of the Education Act as Y had not received an education since 8 January. Mr and Mrs X said the Council were aware of Y’s absence from school A for health reasons, and it had not provided alternative provision. Mr and Mrs X also complained to the Ombudsman.
- The Council wrote to Mr and Mrs X on 15 March. The Council said school A was working with other agencies such as CAMHS (Child and Adolescent Mental Health Services) and had a care package to discuss with Mr and Mrs X at a Team around the Family (TAF) meeting on 29 March.
- Mr and Mrs X attended the TAF meeting on 29 March with representatives from the Council, school A, CAMHS and other agencies. Following the meeting all parties agreed to a reduced timetable to try and reintegrate Y into school A. However, Mr and Mrs X said the timetable failed as Y’s health deteriorated. Mr and Mrs X said they asked school A to send work for Y to complete at home, however it refused as Y had not had face to face time for some of the subjects.
- In May, Mr and Mrs X applied for an EHCP (Education, Health and Care Plan) for Y. The Council declined the application because it believed school A should support Y’s SEN needs.
- In May, Mr and Mrs X complained again to the Council that Y was not receiving any education. The Council however advised Mr and Mrs X they would need to complain directly to school A if they remained unhappy.
- Mr and Mrs X remained unhappy and complained to the Ombudsman.
- In June, the Council said it had now offered Y a place at school B. The Council said Y was receiving 1 hour a day of English and Maths lessons from a specialist higher level teaching assistant (HLTA) to see what provision Y needed from September 2018 onwards. The Council said Y would be able to access a new enhanced mainstream provision for anxious pupils from September 2018 onwards. The Council has also agreed to proceed with an EHCP assessment for Y.
- The Council were aware Y was missing from school because of health reasons on 8 January 2018 and received medical evidence to support this on 23 February 2018. The law and the guidance is clear, and states it is the Council’s duty and responsibility to provide alternative education provision for children absent from school for health reasons. The guidance says it should do this when it is clear the child will be absent for 15 days or more. Mr and Mrs X continued to inform the Council Y was not receiving suitable alternative education up until the TAF meeting on 29 March. There is no evidence the Council arranged suitable alternative education for Y during the period of 23 February to 29 March. This is fault.
- The TAF meeting notes on 29 March show the Council were involved in the decision making for the reduced timetable which Mr and Mrs X accepted. The Council said the provision was suitable, met Y’s needs, and would have prevented Y moving to school B. Mr and Mrs X however said the timetable failed due to Y’s health deteriorating. The guidance says the Council should review the provision to ensure it continued to be appropriate to the child. It also says the nature of the provision must be responsive to the demands of what may be a changing health status. While school A provided the provision, it was the Council’s responsibility to review the provision and ensure it was meeting Y’s needs. There is no evidence to show the Council did this, therefore it is fault.
- Mr and Mrs X first complained to the Council on 8 March 2018 that Y was not receiving any form of education. The Council was aware Mr and Mrs X remained unhappy and had complained to the Ombudsman. The Ombudsman would usually expect complainants to go through the Council’s own complaints process before complaining to him. The Council however did not consider the complaint suitable for its own complaints process. It said Mr and Mrs X should complain to school A because it relates to the actions of that school. It said Mr and Mrs X’s desired outcome was for school A to refer Y to school B. However, Mr and Mrs X’s complaint was that Y was not receiving alternative education.
- It is the Council’s duty and responsibility under Section 19 of the Education Act to arrange suitable full-time education for pupils who cannot attend due to illness. As already mentioned, the guidance says it is also the Council’s responsibility to review any provision offered to ensure it continues to be appropriate. The Council are at fault for not accepting Mr and Mrs X’s complaint for its own complaints process.
Impact on Y
- Year 10 is a critical stage in education which builds towards year 11 when GCSE’s are taken. Mr and Mrs X say Y is already disadvantaged because of ill health and Asperger’s Syndrome and has now been further disadvantaged by not being able to access education since February 2018.
- The Council’s approach contributed to a loss of opportunity for Y. Had it not been for the Council’s fault, Y could have received the alternative provision they had in June 2018 from February 2018. I cannot say whether the provision would have helped Y reintegrate back into full time education. However, it could have reduced the overall impact on Y’s educational opportunity and left Y in a stronger position at the start of year 11 in September 2018.
- The Council has agreed within one month of the final decision to:
- Apologise to Mr and Mrs X for failing to ensure Y received suitable education between January 2018 and July 2018.
- Pay Mr and Mrs X £800 to recognise the loss of educational opportunity for Y from February 2018 and June 2018. The payment should be used for the benefit of Y’s education and to obtain support to make up for the lost educational opportunity.
- Pay Mr and Mrs X £150 to recognise their time and trouble in pursuing the complaint.
In deciding the agreed action, I consulted the Ombudsman’s guidance on remedies. The agreed payments are outside of any provision allocated in Y’s EHCP.
- I have decided to complete my investigation. I have found fault leading to injustice and the Council has agreed to my recommendations.
Investigator's decision on behalf of the Ombudsman