Essex County Council (18 001 574)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 16 Oct 2018

The Ombudsman's final decision:

Summary: Mrs X complained that the Council failed to ensure her son received any education for over six months when he was medically unfit to attend school and had an Education Health and Care Plan. The Council failed to take proper action to ensure he received an education for part of the period. It has agreed a suitable remedy.

The complaint

  1. Mrs X complained that the Council failed to ensure her son received any education for over six months when he was medically unfit to attend school and had an Education Health and Care Plan.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
  2. 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)
  3. 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)

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How I considered this complaint

  1. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, policy and guidance on education for children out of school. I shared my draft decision with the Council and the complainant and considered their responses.
  2. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

  1. Local authorities have a duty to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such provision. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19)
  2. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says:
    • This duty 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.
    • There is no absolute legal deadline by which local authorities must have started to provide education for children with additional health needs. Schools will usually provide support to children who are absent because of illness for a shorter period. Local authorities, should, however, arrange provision as soon as it is clear that an absence will last more than 15 days.
    • Where a local authority has identified that alternative provision is required, it should ensure it is arranged as quickly as possible and that it appropriately meets the needs of the child. “In order to better understand the needs of the child, and therefore choose the most appropriate provision, local authorities should work closely with medical professionals and the child’s family, and consider the medical evidence. Local authorities should make every effort to minimise the disruption to a child’s education”.
  3. The Government has issued statutory and non-statutory guidance for GPs, ‘Supporting pupils with medical conditions at school’, on their roles and responsibilities in this area. It says:
    • “It should be noted that GPs do not provide sick notes for school children. When children are absent form school owing to illness, schools may request a letter from a parent or guardian…When a child suffers from a long-term condition, any certification will be provided by the responsible specialist”.
  4. The Council’s policy ‘Children unable to attend school due to health needs’ sets out the procedure for arranging alternative education. It says:
    • Schools should make appropriate referrals to the Council’s Alternative Education Commissioning Service (‘AE Commissioning Service’) for pupils who cannot attend school because of health reasons where it is clear the child will be away from school for 15 days or more.
    • The referral should include a form and medical evidence. The medical evidence should confirm the reason why the pupil cannot attend school, how long they are likely to be absent and how many hours of 1:1 tuition or group tuition the pupil would be well enough to receive.
    • For pupils with mental health issues the Council expects to receive evidence from the Child and Adolescent Mental Health Service (CAMHS), known locally as the Emotional Wellbeing and Mental Health Service (EWMHS).
    • If the AE Commissioning Service agrees the referral it will notify the school, and the education provider will contact the school and the family to make the arrangements to provide support.
    • If the Service does not agree the referral, it will tell the school why it does not meet the criteria. “Other avenues of support may be suggested”. The Service will consider any further evidence submitted and review the decision.
    • In some cases there will need to be a meeting with relevant professionals before making a final decision, in which case the council will ask the school to arrange a meeting. This may involve the EWMHS.

Education, Health and Care Plans

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
  2. Councils have a duty to secure the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
  3. Councils must review EHC Plans at least every 12 months. They may hold a review meeting earlier if an EHC Plan needs amending because of a change of circumstances.

What happened

  1. Mrs X has a son, Y, who has had an EHC Plan since January 2017. He had support with social interaction and his emotional needs from when he was in primary school. His EHC Plan was amended in March 2017 in preparation for his transfer to secondary school, School 1, in September 2017. It included tailored approaches to teaching, support with his emotional needs, and a mentor. In May 2017 Y was diagnosed with Autistic Spectrum Disorder with demand avoidance and a sensory processing disorder.
  2. Y had difficulty settling in to School 1. This resulted in a meeting at School 1 with School staff and Council officers including the casework manager, Officer B, to discuss ways to support him in school
  3. Before the end of September 2017 Y had a short-term exclusion and School 1 was finding it difficult to manage his challenging behaviour.
  4. On 13 October 2017 Mrs X provided the Council with a medical certificate from Y’s GP which said he was unable to attend school until 13 April 2018 because of his mental health problems. Mrs X told the Council that during this six month period Y would be seeing CAMHS. Mrs X later told the Council Y had an appointment for late October.
  5. The Council was concerned at the length of time the doctor had signed Y off for and the lack of detail on the certificate. The Council wrote to the GP asking him to clarify whether he considered Y could access any education at all during this time or whether he was unfit to attend school only. The GP did not reply.
  6. The Council also advised School 1 it needed to make a referral to the AE Commissioning Service. School 1 made the referral on 8 November 2017 on medical grounds. It said Y’s last day of attendance at school was 9 October 2017. It also sent work home for Y.
  7. There were then discussions within the Council and with Mrs X about whether the placement at School 1 had broken down. Mrs X said she would like Y to move from School 1 but did not feel he was ready for any school at the moment. She asked the Council to consider the alternative education provision she had used for one of her other children while it looked for another school placement. I refer to this alternative education provider as ‘AP1’. Its offers 1:1 tuition. In early December Officer B replied to Mrs X saying the Council could “definitely explore” education through AP1 and the School could apply for it. She said she would ask School 1 to do this and the Council would also consult another school.
  8. There was also a discussion about the need for an Annual Review of Y’s EHC Plan. An Annual Review meeting took place at School 1 in late November 2017. The Council says it was not notified of this meeting. The record of the meeting shows the School reported that Y struggled to cope with heightened levels of anxiety as school, despite strategies it had put in place in line with his EHC Plan and external advice it had sought. It said Y had had difficulty engaging with work since he started at the School. Mrs X said she was also having difficulty getting Y to complete work at home and felt it was having a negative impact on her own strategies to help him manage his anxieties. The record says Mrs X asked School 1 to stop sending work home for him. Mrs X says it was a mutual decision with the School which agreed that working at home would not be effective without a tutor from the medical tuition service. The result of the meeting was a request for change of placement to a specialist school, School 2, as well as 1:1 support and work with the EWMHS and the Educational Psychology service.
  9. The AE Commissioning Service asked the School for more medical information so it could consider the referral. In mid-December School 1 asked the Council what it should be doing about Y. The School said it would be asking Mrs X to ask Y’s GP to complete the Council’s form so as to provide more information. The School and the Council were concerned to put in provision that was suitable for Y and felt they needed more clarification from the GP about this.
  10. In early January 2018 Officer B wrote to Mrs X to say she was still waiting for a response to the referral for alternative education provision. She considered home tuition from the medical tuition service would be the best option for Y as he was still out of school for health reasons. She also asked Mrs X if there was another GP at the surgery who could provide information as Y’s GP had not responded to the request for further information. Mrs X replied that the GP was away but no other doctor could provide the information as they did not know her son. She offered to set out her own views for the medical tuition service to consider.
  11. The Council advised School 1 about other alternative education providers. But the School felt as Y had a medical certificate the most appropriate provision would be through the medical tuition service.
  12. On 23 January 2018 Mrs X provided further information from Y’s GP. The GP recommended “1:1 tuition until specialist school is sought” and said “tuition at home advisable”.
  13. At the end of January 2018 the AE Commissioning Service decided to turn down the application for the medical tuition service. The reasons given were:
    • “mainstream is no longer considered appropriate”
    • “Unlikely that [Y] will return to [School 1]”
    • “EHCP funding can be used to commission appropriate interim education until such time as his special school placement is identified.”
  14. Mrs X wrote to Officer B to confirm her understanding that School 1 had been told it would need to provide tutors. But she said the School was reluctant to do so until it knew whether Y would be moving schools.
  15. During February and March 2018 there was an exchange of emails between Mrs X and Officer B. Mrs X explained she had visited School 2 but it had not agreed to admit Y. She said School 1 was still not arranging any tuition for her son. she queried why School 1 could not spend money it received for Y’s EHC Plan on providing education for him.
  16. Officer B said she had been liaising with School 1, and the Council had agreed with the School that as they had not had ‘an official response’ from the doctor about what education Y would be able to manage, the School would not put anything in place for Y until they had a clearer understanding of this. She said senior officers were looking again at whether Y could access the medical tuition service and would be contacting the EMWHS.
  17. Mrs X replied on 8 March 2018 complaining about the lack of education for her son. She wrote again, after visiting another school, School 3, which also said it was not suitable for Y. She asked again for alternative provision through AP1.
  18. In mid-March Officer B saw a copy of the GP’s letter and asked the SEN Statutory Assessment Service if it could be used to ask School 1 to arrange alternative provision. The reply was that the medical evidence was not sufficient as it did not provide any details of a plan to help Y with his problems or any indication of when the situation was likely to improve. The Council recommended an emergency Annual Review to be held as soon as possible to review all the latest evidence and decide on an appropriate placement.
  19. The Annual Review meeting took place in mid-April 2018. The meeting agreed Y needed individual and small group tutoring. It identified AP1 as suitable alternative provision until September 2018. It decided there would be a further Annual Review meeting in July to review the position.
  20. Mrs X continued visiting other schools and the Council consulted with them. No suitable placement has yet been identified to be named in Y’s EHC Plan. In the meantime Y started receiving part-time tuition from AP1 in May 2018, first through home tuition and then at a centre. Y is still there and Mrs X reports that her son is benefitting from the education provided.

Analysis – was there fault causing injustice?

  1. The Council says its duty is to provide suitable education where a child is unable to attend school for health reasons. Its view is that the medical certificate from Y’s GP did not provide sufficient evidence to allow it to establish what education would be suitable for Y while he was out of school. It says after consulting its Educational Psychologist it was concerned that the certificate did not explain what support was being provided to Y to address his mental health difficulties. Nor did it indicate how much education, if any, he could manage. It was also concerned about the length of the proposed period of absence.
  2. The Council’s view is that until January 2018 when it received further information from the GP, it was taking reasonable steps to arrange alternative educational provision for Y “in the face of no information or assistance from his GP”. It was also aware that School 1 was sending work home for Y.
  3. It considers that the information the GP provided in January 2018 was still insufficient. However it acknowledges the GP did give some guidance about the education Y could manage and that he did not receive the alternative education until 10 May 2018, 11 school weeks later. The Council says it accepts it should have arranged alternative provision as soon as possible after receiving the further information from the GP. At the same time it says it continued to take purposeful action throughout this period despite the inadequate medical evidence.
  4. There is evidence that from October 2017 to January 2018 the Council was taking reasonable steps to ensure an education for Y. It made direct contact with the GP’s surgery shortly after receiving the certificate to try and obtain further information. It advised School 1 to make a referral to the AE Commissioning Service. Y was still on roll at School 1 and the School was sending work home for him.
  5. However by the end of January 2018 circumstances had changed.
    • The Council received further information from the GP indicating home tuition would be appropriate
    • The AE Commissioning Service turned down the referral to the medical tuition service.
    • The School was no longer sending work home as Y had not been able to cope with it without a tutor.
    • The Council was aware the School was not arranging any other provision
    • The Council had agreed a new school placement would be appropriate.
  6. The Council took action to consult other schools about a change of placement, and it was appropriate to call an Annual Review meeting. But this did not deal with the immediate issue of education for Y while he was out of school. In my view, as Y had been turned down by the medical tuition service, the Council should have acted sooner to arrange other forms of alternative education. Mrs X herself had suggested provision she would consider suitable which Officer B had said the Council would explore. I have not seen evidence that it looked into this until after the Annual Review meeting in April 2018. Also, in my view the Council should have called an Annual Review meeting earlier.
  7. The Council was concerned to ensure that any education provided was suitable for Y, but providing no education at all was not a reasonable alternative. The Council had a duty to consider whether Y would receive suitable education if it did not make alternative arrangements. It also had a duty to arrange the support in Y’s EHC Plan. This would have presented some difficulties as the provision in the Plan was school-based, but Y was no longer attending for medical reasons. If the Council had arranged alternative education this would have satisfied the requirement to ensure the provision in the Plan was delivered.
  8. The Council has accepted it should have arranged alternative education as soon as possible after it received the further information from the GP on 23 January 2018. I have not seen evidence that it did so. The only action it took was to arrange an Annual Review in April 2018. Y received no education in the meantime. The Annual Review meeting led to a decision to offer alternative education while the Council looked for a change of named placement. If it had been held earlier, it is likely the home tuition would have started earlier.
  9. The Council has offered to apologise for the difficulties in arranging alternative education from 23 January to 10 May 2018. I also consider a financial remedy would be appropriate to recognise that Y missed out on education he should have received. If the Council had looked at alternative provision as soon as possible after receiving the updated medical information it is likely this would have started sooner. Y would not have received any education during this time unless the Council had made the arrangements.

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Agreed action

  1. The Council has agreed to apologise to Mrs X and her son for failing to take sufficient steps to ensure he received alternative education between 23 January and 10 May 2018. Allowing two weeks to arrange the provision, this amounts to a loss of education for nine school weeks. It is unlikely Y would have been able to cope with full-time education during this time. I recommended that within two months of the final decision on this complaint the Council should make up for this loss by either:
    • offering additional provision now in consultation with Mrs X and the education provider; or
    • if it does not consider this feasible or in Y’s best interests, offering a financial remedy as an alternative.
  2. Taking account of the Ombudsman’s guidelines on financial remedies to recognise loss of education, I recommended a payment of £300 a month, amounting to a total of £675. The sum should be used for the benefit of Y’s education.
  3. The Council agreed to these recommendations. It has also confirmed that it is currently reviewing its medical policy to make it clearer what should happen in situations such as this case.

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Final decision

  1. I have found fault by the Council causing injustice to Mrs X’s son. I am satisfied with the action the Council has agreed to take to remedy the injustice caused. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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