Summary: Ms E complains on behalf of Mx F, about the support offered to Mx F when they could not attend school because of illness. We find fault in the Council’s response to contacts about Mx F’s absence. We consider this caused injustice to Mx F as both a loss of service and distress; as well as causing separate injustice to Ms E. The Council has agreed action to remedy the complaint set out at the end of this statement.

The complaint

1. I have called the complainant ‘Mx F’. Mx F’s mother, Ms E, makes the complaint on behalf of Mx F. They complain the Council failed to offer adequate support for Mx F’s education when they were too ill to attend school. In particular during Years 10 and 11 of Mx F’s education between October 2015 and June 2017.
2. Mx F says as a result they:

• Did not take three GSCE subjects as they wanted. One of these was a subject Mx F wanted to study at ‘A’ level. So, this has restricted Mx F’s post-16 opportunities.
• Could not sit one GSCE exam in June 2017 as intended and had to sit it later, which added pressure to ‘A’ level coursework.
• Experienced anxiety as well as that caused by missing school because of illness. Mx F says having no home tuition in place meant they did not know how well their studies were progressing and how they were likely to do in exams.
• Experienced worsening health, as the extra anxiety caused through a lack of support worsened Mx F’s health condition which causes both physical and mental health symptoms. These symptoms worsened the longer Mx F spent isolated.
• Have continued anxiety around education feeling their trust undermined. At times Mx F says they have become upset and angry at the lack of support offered.
• Have suffered delayed recovery. Mx F says support from CAMHS (Child and Adolescent Mental Health Services) often focused on lack of education support and not that support needed to cope with the longer-term effects of their health condition.
• Feel ignored as a young person, having no supportive, proactive contact from the Council during events covered by the complaint.

3. Ms E has also described the distress that she and her husband experienced in trying to ensure Ms F’s education remained ‘on track’ while being unwell. Ms E Ms E also asks for a refund of costs paid to a tutor she arranged for Mx F while they were out of school.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)

Back to top

How I considered this complaint

6. Before issuing this decision statement I considered:

• Ms E’s complaint to the Ombudsman and supporting information, including that gathered in telephone conversations with her. I also considered a personal statement from Mx F explaining how events impacted on them, which I summarised at paragraph 2.
• Information provided by the Council in response to written enquiries.
• Information provided by a Council officer (‘Officer X’) involved in the events covered by the complaint. I also spoke to the current Head of Service for the Council’s education services, who support children out of school because of illness.
• Information provided in a telephone call with the Deputy Head of Mx F’s school testing their recollection of events in 2017.
• Relevant law, guidance and Council policy as set out below.
• Comments made by Ms E and Mx F in response to a draft decision setting out my provisional thinking about the complaint. The Council also had chance to comment on this, but said it had no comments other than it accepted our proposed findings.

Back to top

What I found

Legal Background

7. Section 19 of the Education Act 1996 states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
8. The Children, Schools and Families Act 2010 (Section 3), made the duty full-time from 1 September 2011. The only exception to this is under subsection 3AA of the 1996 Act, where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
9. The Government publishes statutory guidance in support of this legislation in the Department for Education publication ‘Ensuring a good education for children who cannot attend school because of health needs’ (January 2013). The guidance says the local authority is “responsible for arranging suitable full-time education for children of compulsory school age who because of illness, would not receive suitable education without such provision”. It says, “this applies whether or not the child is on the roll of a school and whatever type of school they attend” including “independent schools”. The guidance stresses that councils should not have ‘inflexible’ policies that prevent children accessing the right support.
10. The guidance says that where schools provide suitable home tuition the local authority may not need to intervene. But it “should be ready to take responsibility”. Provision should start once it becomes clear a child will be absent for 15 days or more. The authority should “liaise with appropriate medical professionals to ensure minimal delay”.
11. Authorities should ensure good quality alternative provision and allow pupils opportunity to gain “appropriate qualifications”. It stresses the need for flexibility including part time education where appropriate. It also says the Council should have a local policy.
12. The guidance also stresses that “parents have an important role to play” in supporting the teaching approach. It adds, “children should also be involved in decisions from the start with the ways in which they are engaged reflecting their age and maturity”.

Council policy

13. In February 2015 the Council introduced a policy ‘Access to Education for Children and Young People with Medical Needs’. This explains the Council provides the service via its medical ‘Access to Education’ service (‘A2E’). It said the service provided for all children of compulsory school age “whether or not on the roll of a school and whatever type of school they attend” including independent schools. The policy went on to explain the law and statutory guidance I referred to earlier.
14. The policy said the Council aimed to support children in school “wherever possible”. It would aim to give them “proper access to as much high quality suitable and flexible education as is appropriate to their needs”. The Council promised a “flexible and responsive service” to ensure “continuity of education, including access to public examinations”. It promised to work in partnership with parents and children as well as “work closely” with schools and medical professionals. The policy said that it aimed to ensure children absent for sickness did not go without education for more than 15 days. They should receive “as much education as appropriate” and of “similar quality” to school.
15. The policy explained referrals to A2E should come via schools. The school should support a referral with evidence of medical needs. For example, a “Consultant Child Psychiatrist endorsement”. It said any evidence provided should explain the nature and effect of the illness on the child and anticipated interventions.
16. The policy said A2E would usually work with children for up to two terms; aiming towards integration back into school at the end of the second term at the latest. It would provide teaching in small groups or on a 1:1 basis. It said schools had responsibility for reviewing provision (every six weeks). They also had responsibility to provide half-term work plans; resources and materials; arranging exams and giving a named contact to parents. It said A2E would “ensure schools are aware” of their role.
17. The policy said that for its part A2E would carry out initial assessments and put alternative education provision in place. It would write an Individual Education Plan for the child, deliver appropriate work and provide regular reports to the school. It would also ensure the school met the responsibilities set out in paragraph 16.
18. The Council revised this policy in September 2018. It remains policy that referrals to the A2E service should come from a pupil’s school which must complete an appropriate form. It provides similar guidance to the 2015 version on school responsibilities and those of the A2E service, although more emphasis is put on reintegrating children into school. The current policy also contains a section on the role of medical professionals in supporting children to whom the policy applies.
19. The current policy says that A2E will now first undertake a home visit and produce academic/learning assessments as well as draw up an education plan. It will produce an individual support plan, providing reports to parents and schools and supporting reintegration.
20. As well as the A2E service the Council has an Education Welfare Service (EWS). It describes this on its website as “comprised of knowledgeable and well trained teams providing bespoke support to schools and academies, addressing attendance issues strategically and through individual casework. It supports pupils to attend regularly and achieve their full potential”. The primary aim of the EWS is to ensure pupils attendance at school through “investigation, interview and targeted support”. It says the EWS service liaises with other Council services and medical services such as CAMHS.

Key facts

21. Mx F attended an independent school in the Council’s area. From October 2014 onward Mx F became ill and their school attendance began to decline. From August 2015 Mx F began to receive support from local CAMHS services (following initial contact in 2014). In September 2015 Mx F began year 10 of their education.
22. In October 2015 Mx F was absent from school for around six weeks. The Council says the school contacted its EWS for ‘informal advice’. The Council says that it believes it advised the school to contact its A2E service. But it has kept no record of the contact it received or advice given.
23. Mx F returned to school in January 2016 and attended sporadically until July 2016 with an absence rate of around 40%. From then onward Ms E began to arrange home tuition for Mx F to support their studies. This was for around one hour a week on average.
24. Mx F returned to school in September 2016. Mx F attended school for one to two days a week, although could not attend for a full day during these times. Mx F had an 86% absence rate until December 2016.
25. By December 2016 Mx F became too ill to continue attending school. ‘Dr Y’, a Clinical Psychologist supporting Mx F through CAMHS, authorised their absence. Dr Y wrote to the Council saying that she was referring Mx F to the A2E service. Dr Y explained Mx F’s medical needs and the support CAMHS provided. Their letter said Mx F was “physically unable to attend” school.
26. The Council has no record of receiving Dr Y’s letter. However, the current Head of Service told me that at the time Dr Y wrote in if the Council could not link the letter to an open file it might have destroyed it. The Council would not open a file unless it received a referral from a school.
27. The Council recognises that Ms E contacted its A2E service by telephone around the same time as Dr Y sent their letter. Ms E explained Mx F’s circumstances. The Council did not keep a record of those telephone calls. Again, it did not open a file on Mx F’s case, because it did not have a referral from their school. Ms E says the A2E service did not tell her that it would only open a file on Mx F’s case with a referral from the school.
28. In early February 2017 Dr Y wrote again to the Council saying she was “formally referring” Mx F to the A2E service. Dr Y’s letter was in the same terms as that written in December, explaining the background to the service provided by CAMHS to Mx F. Around the same time Dr Y was also in contact with Mx F’s school and Ms E.
29. After this second contact from Dr Y, the school and the A2E service made direct contact. The Council clarified the school needed to make a referral for its services, which it then went on to do.
30. The contacts the Council had with Dr Y, the school and Ms E all suggested Mx F was keen to continue their studies and working hard to sit their GCSEs. The school identified Mx F “attended some sessions of art as part of a recovery programme”. During absences Mx F self-studied.
31. Officer X for A2E sent an email to the school saying that “all” the Council could offer was virtual learning for year 11 pupils. They also said the “referral process can only be supported by a plan to integrate back into school within realistic time frames”. Officer X said the Council could not “plan in more detail without that advice”. In response the school said it would work with A2E.
32. A meeting at the school followed in early March, attended by Ms E, the Deputy Head of the school, Officer X and Dr Y. The Council kept no notes of the meeting. Officer X said it was the school’s responsibility to keep a note. The school Deputy Head told me they kept no formal note of the meeting, although they made some brief hand-written notes at the time. Ms E also made her own hand-written notes.
33. Having spoken to Officer X, the Deputy Head and Ms E, as well as reviewing Ms E’s contemporaneous notes, they agree on the following:

• Officer X advised the Council currently had no suitable home tuition it could offer Mx F. The only tutors potentially available to the Council at the time taught primary school pupils.
• That discussion suggested that Mx F could not attend school more regularly or small group teaching in a different location run by the Council. But Mx F’s attendance once a week for Art was therapeutic and should continue. That online or virtual teaching was unlikely to be suitable given the proximity of the GCSE exams.
• Officer X encouraged the school to consider what further support it might provide Mx F. The school went on to agree that it would provide two hours a week home tuition to Mx F in English Language and English Literature only.

34. After the meeting Officer X said that he understood there was no further role for the Council and that Ms E accepted this. Ms E told me that she accepted any help on offer but remained dissatisfied. The School Deputy Head told me that they considered Ms E found the outcome unsatisfactory. The school did not have the resources to offer more home tuition.
35. The Council had no further involvement in Mx F’s case after March 2017.
36. The school provided the agreed tuition until early May with a three-week break for the Easter holidays.
37. Mx F’s home tuition continued until May 2017 (including through the Easter holidays). Mx F’s tutor has confirmed they received £900 from Ms E for their teaching for the period December 2016 to May 2017. They charged £45 per hour for the tuition providing around one hour a week tuition on average.
38. Mx F went on to six GSCEs but did not take their English Language exam in June 2017. Mx F went on to sit this later. Mx F decided not to sit three of their GCSEs because they had received no support with those subjects since being absent from school. This included studying a Theology and Philosophy course; a subject Mx F wanted to also pursue at ‘A’ level.
39. I have clarified the Council’s A2E service receives around 70 to 80 referrals a year for pupils who are in ‘Key Stage 4’ of their education. This is years 10 and 11 when pupils commonly sit GCSE exams. The service caters for the needs of pupils who are not only absent because of illness but also children without schooling when they move into the area or because of exclusion. It also supports pupils who have special educational needs and whose needs it is assessing.
40. In its general comments on the complaint the Council has said:

• Suggestions in this case that it could not provide one to one support for Mx F should not be taken as implying the Council cannot arrange such support for all pupils in contact with the A2E service. The Council has given me examples of where it has arranged such support for other pupils. But the Council says there is a shortage of tutors qualified and available to teach pupils at Key Stage 4.
• Comments made in this case about the advice offered by the Council’s EWS service in October 2015 should not be taken as implying the EWS service does not work closely with A2E where required.
• That its A2E service is flexible. It does provide support beyond two terms where needed. It recognises that not all children have medical conditions which mean they can be reintegrated into school within two terms.

41. The Council also says it has changed procedures since the events covered by the complaint, as follows:

• It has re-organised the A2E service which it previously provided on a geographic basis. This means it now provides greater consistency to pupils referred to it by having a single county-wide approach.
• It will now routinely follow up contacts about children out of school because of illness where it has received no referral from a school. For example, where it receives contacts direct from parents or health practitioners. The A2E service will open a file record for such cases and make enquiries with schools to advise on referral. It will follow-up such enquiries where needed.
• That it now records such contacts and ensures there are notes of key meetings on a pupil’s case.

42. The Council’s Head of Service told me the Council also hoped to make further improvements following this investigation. In particular, looking to strengthen contacts between the Council and independent schools and protocols for children absent from independent schools.
43. The Council’s Head of Service also told me they recognised the Council had let down Mx F in this case and would want to offer an apology.

My findings

44. I consider this complaint has highlighted significant failings in the Council’s service offered to Mx F when they could not attend school because of illness.
45. First, the Council failed to meet basic standards of good record keeping, which was fault. I note in particular the failure to record:

• The contact made by Mx F’s school in October 2015 and any advice given at the time.
• All communications between the Council’s A2E service, Ms E, the school and Dr Y between December 2016 and February 2017.
• The meeting which took place at Mx F’s school in March 2017 which was critical to the Council’s decision making in this case.

46. Second, the Council delayed in offering any service to Mx F despite knowing from December 2016 they were out of school because of illness. I understand the Council will want information from schools to help inform decisions about the support it offers to pupils absent from school because of illness. There is nothing wrong therefore in asking for the information contained on the referral form it uses. But the Council should not have fettered its discretion not to provide a service to Mx F because it had not received the correct form. It became inflexible in its policy, contrary to Government guidance. Even if it did not receive the December 2016 letter from Dr Y it spoke to Ms E around that time. It knew Mx F was not in school because of illness. It should have opened a case as soon as it knew this. Because that information suggested in turn it had a legal duty to meet Mx F’s needs, requiring it to act. It should have begun immediate liaison with the school. The delay and lack of action was a fault.
47. Third, the service offered to Mx F was then inadequate and failed to follow Council procedure. It carried out no initial assessment of Mx F’s needs. It drew up no individual education plan. It simply attended a meeting and looked mainly to encourage Mx F’s school to provide more support. I accept there is again no inherent fault in encouraging schools to do all they can to support pupils absent through illness. I also accept the Council may not have had tutors available who could meet Mx F’s specific needs for home tuition in March 2017, meaning it was reasonable to explore the viability of options such as virtual learning. The meeting left Mx F slightly better supported as a result. But clearly the meeting still left Mx F with inadequate support. The Council made no enquiries or offered no practical suggestions after that to help plug the gap between what Mx F received and what they needed. It did not, for example, offer to finance any further home tuition Ms E might arrange. It did not make any direct enquiries of home tutoring services. This lack of support was a fault.
48. Fourth, the Council was also at fault for its decision not to have further involvement in Mx F’s case after March 2017. It knew that Mx F could not attend school because of illness. It knew that they were not receiving a full-time education or anything near that, even though the evidence suggested Mx F’s medical needs did not prevent them receiving further support. It knew therefore it was failing in its statutory duties at a critical time in Mx F’s education. It did not have the choice to walk away. It had a legal duty to support Mx F as well as a policy duty which explained that.
49. Fifth, the Council also further erred when it suggested to Mx F’s school it could not support Mx F unless the school had drawn up a reintegration plan. I have a concern Council policy puts too much emphasis on reintegrating pupils at the expense of those who may be too ill to return to school within two terms. I have received reassurance the Council is more flexible in practice. That it will support pupils for as long as needed. But the Council appeared to make any support conditional on reintegration in this case. That was a fault.
50. I have gone on to consider the consequence of these faults on Mx F and what injustice resulted. The Council should have learnt of Mx F’s case sooner, no later than the end of 2015. Had it done so it could have begun working with Mx F sooner. If working with Mx F in a way consistent with its policy and government guidance then Mx F would not have missed so much education nor suffered the distress, anxiety and further ill health arising from that. It is therefore unfortunate that Mx F’s case was not on the radar of the A2E service before December 2016.
51. However, the only opportunity the Council had to become involved was when Mx F’s school contacted it in October 2015. There are no records to show what advice the Council gave the school at that time. So, I do not know whether more blame rests with the Council or with the school on why Mx F’s case did not go to the A2E service around that time. Consequently, the only injustice I can conclude arises from the missed opportunity in October 2015 is that of uncertainty, which we regard as a form of distress.
52. I consider the injustice arising from the Council’s failings from December 2016 onward more quantifiable. Mx F lost out on a service the Council should have known it needed to provide from that time. Had the proper recording, planning and support been in place then I consider on balance Mx F could have received more help at this critical stage in their education. I cannot say by that time if it would have been possible for Mx F to take exams in all their preferred subjects. But Mx F would have been better mentally and practically prepared for their exams.
53. There is also clearly distress arising from the Council’s failings after December 2016 because it left Mx F unsupported and excluded from a service designed to support them. I am satisfied that distress also extends to a likely worsening of Mx F’s illness given the symptoms become worsened by anxiety.
54. Ms E also suffered injustice as distress. Clearly Ms E did their best to support Mx F through a difficult time. Ms E also spent money on private tuition which the Council should have paid for, on realising Mx F lacked adequate education support.

Agreed action

55. The Council agrees these findings. It has also agreed action that I consider will provide for a fair and proportionate remedy for Mx F and Ms E’s injustice. Within 20 working days of this decision the Council will:
1. Give an unreserved apology to Mx F accepting the findings of this decision.
2. Pay Mx F £3000. It will pay £2500 for the near absence of service provision made to Mx F for the period from December 2016 to June 2017. It will pay £500 in recognition of the distress also caused to Mx F for its actions, including the uncertainty arising from its failure to properly record contact with Mx F’s school in October 2015 and the missed opportunity to support Mx F sooner.
3. Pay Ms E £1200. This is to refund Ms E £900 for the private tuition she paid for between December 2016 and May 2017. Plus, an additional £300 in recognition of her distress.
56. The Council has also agreed to learn further lessons from this complaint. I recognise it has made some positive changes to its practices since 2017. However, it should further review its practice and policy and within three months it will carry out the following:
1. A review of the current methods it uses to capture information provided to its EWS service which may trigger the involvement of its A2E service. There should be a record of all cases, however they are bought to the Council’s attention, when it becomes aware of a pupil absent from school because of illness for 15 days or more. I understand the A2E service now keeps better records of the direct contacts it receives. But it is equally important that its EWS service (and other services if relevant) are capturing information and the A2E service follows up all enquiries suggesting a possible need for its service.
2. It should draw up a protocol or procedure for officers who become aware of pupils’ absence from school during Key Stage 4 of their education. This is a time when the Council may need to show the most flexibility and imagination to support pupils and to meet its statutory duty to ensure pupils can gain appropriate qualifications. It should review its current options for supporting this cohort of pupils and consider what further resources it can identify; especially in identifying suitably qualified home tutors who can provide 1:1 support.
3. It should draw up a protocol or procedure for officers working with independent schools where pupils are absent through illness. These may not have EWS staff on site who may otherwise alert A2E to relevant absences and schools to the proper procedures. Extra vigilance may be needed with such schools to make sure the Council receives appropriate referrals and carries out appropriate follow up when working with schools to provide education to pupils absent through illness.
4. It should ensure current record keeping practice is also reflected in guidance given to officers. This includes the need to clearly document who has responsibility to minute meetings which may take place with school or health professionals.
5. It should amend the wording of its current policy for supporting pupils absent through illness to make clear that it has flexibility about how long the service continues. While the importance of reintegration is understood, this cannot be at the expense of pupils who may be absent from school for more than two terms. The flexibility the service shows in practice should be reflected in the policy wording.
57. We will require evidence the Council has complied with these actions.

Back to top

Final decision

58. For reasons explained above I have upheld this complaint, finding fault by the Council causing injustice to Mx F and Ms E. The Council has agreed to provide what I consider will be a fair remedy for that injustice. Consequently, I have completed my investigation satisfied with its actions.
59. 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.

Back to top

Investigator's decision on behalf of the Ombudsman