The Ombudsman's final decision:
Summary: the Council should have made alternative arrangements for B’s education following a referral by his school in December 2017. The Council has agreed to make a payment for the education B missed.
- Miss M complains that her son, B, missed the whole of his Year 7 education because he was too ill to attend school and the Council failed to arrange alternative tuition.
- Miss M complains that the Council’s apology is not a sufficient remedy. She would like compensation to pay for a tutor to help B catch up.
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)
- 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.
How I considered this complaint
- I have considered:
- information provided by Miss M;
- information provided by the Council;
- the Education Act 1996;
- Supporting pupils at school with medical conditions. Statutory guidance for governing bodies of maintained schools and proprietors of academies in England published by the Department for Education in April 2014;
- Ensuring a good education for children who cannot attend school because of health needs. Statutory guidance for local authorities published by the Department for Education in January 2013;
- Out of school… out of mind? How councils can do more to give children out of school a good education, published by the Ombudsman in September 2011.
- Guidance on good practice: remedies, issued by the Local Government Ombudsman in 2018.
What I found
- Miss M’s son, B, attends a secondary school in the neighbouring council area.
- B suffers severe anxiety. He only attended school for three days at the beginning of September 2017 and was absent for the remainder of Year 7.
- Miss M requested home tuition in December 2017. In April 2018, she complained the Council had not arranged tuition because of a dispute with the school and the neighbouring council about who was responsible.
- The Council responded to Miss M’s complaint by letter dated 9 July 2018. The Council explained it had sought advice from the Department for Education which confirmed the Council was responsible for B’s education when he was unable to attend school because of illness. The Council accepted there had been delays providing a home tutor meaning that B had been without education for a prolonged period. The Council said that it was reviewing procedures, issuing guidance to staff and would hold a meeting to resolve B’s education.
- The Council issued an Education, Health and Care Plan for B in June 2018 which names his current secondary school in Section I. B began to access an online education provision, arranged by the school, in September 2018.
Education for children who do not attend school
- Schools must make arrangements to support pupils with medical conditions.
- Where pupils would not receive a suitable education in school because of their health needs, the council has a duty to make other arrangements. The Council should provide suitable full-time education, or as much education as the young person’s health condition allows, as soon as it becomes clear they will be away from school for 15 days or more. Councils should liaise with the appropriate medical professionals to ensure the provision meets the young person’s needs, and to avoid delays in starting provision.
- Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
- The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
- The Local Government Ombudsman has issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
- The Ombudsman made six recommendations. Councils should:
- consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
- consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
- choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
- keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
- adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
- put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
- B has been out of school for almost all of Year 7. Miss M made considerable efforts with the school to meet B’s needs in the autumn term 2017. In December 2017, she asked the school for a home tutor. The school contacted the Council in December 2017 and again in mid-January 2018 to request medical tuition.
- The Ombudsman considers complaints against councils and certain other bodies. We cannot consider complaints about schools.
- The Council has been aware that B was unable to attend school since December 2017. It appears that confusion about who was responsible for B’s education delayed appropriate provision. The Council has resolved the question of responsibility and amended its policies accordingly.
- However, B has missed two terms of education as a result of fault by the Council. As the Council did not carry out assessments or consider B’s needs, I cannot say what education the Council should have provided.
- I understand that suitable arrangements for B’s education have been made from the beginning of term in September 2018.
- The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of £1,200 per term, but may recommend more or less depending on the young person’s circumstances and any alternative education they have received.
- I recommended the Council apologise to Miss M and B and pay £2,400 for the education he missed between the referral from his school in December 2017 and the end of the summer term.
- The Council accepted my recommendations.
- The Council accepted my recommendations so I have ended my investigation.
Investigator's decision on behalf of the Ombudsman