Kent County Council (18 007 105)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 05 Dec 2018

The Ombudsman's final decision:

Summary: The complainant alleges that the Council failed to provide appropriate alternative education for her son who was unable to attend school for medical reasons. The Ombudsman has found fault in that there was an unreasonable delay by the Council in making a referral to its Health Needs Team. As a result, the complainant’s son has missed out on suitable alternative education at a key stage in his school career. The Council has agreed the Ombudsman’s recommended actions to resolve the complaint and it will clarify its policy for children unable to attend school for medical reasons.

The complaint

  1. The complainant, who I shall refer to as Mrs X, complains that the Council failed to provide suitable alternative education for her son, C. At this stage, C was in Year 10 and therefore had just started his GCSE work.
  2. C has special educational needs and has a diagnosis of high functioning autism. C was unable to attend his named school, School Y, because of a serious assault on him by other pupils at the school. C required dental surgery and also suffers from additional anxiety and post-traumatic stress disorder.

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The Local Government and Social Care Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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))
  2. 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))
  3. The Ombudsman cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
  4. 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, sections 30(1B) and 34H(i), as amended)
  5. 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.

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How I considered this complaint

  1. I have spoken to Mrs X on the telephone and obtained the Council’s written response to the complaint as part of an earlier Ombudsman investigation. I issued a draft decision statement and have taken into account both the Council and the complainant’s comments when reaching my final decision.

What I found

Legal and administrative considerations

  1. 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”.
  2. 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.
  3. 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.
  4. 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.
  5. 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”.
  6. 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.
  7. Councils should therefore:
    • provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education;
    • address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors;
    • while ‘full-time’ is not defined in law, pupils in alternative provision should receive the same range, quality and amount of education as they would receive in a maintained school;
    • if a child receives one-to-one provision the hours of face-to-face provision could be fewer than full-time, as the provision is more concentrated;
    • good alternative provision is that which appropriately meets the needs of pupils and enables them to achieve good educational attainment on par with their mainstream peers particularly in English, Maths and Science (including Information Technology). The alternative provision should also meet specific personal, social and academic needs including being suited to the pupil’s capabilities, give pupils the opportunity to take appropriate qualifications and involve suitably qualified staff who can help pupils make excellent progress;
    • evidence should be sought from medical consultants as to how much education it is appropriate for a child to receive and when they might be ready to return to school;
    • the pattern of complex and long-term health illnesses can be unpredictable. Councils should discuss the child’s needs and how these may best be met with the school, relevant clinician and parents, and where appropriate the child.
  8. 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

  1. 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).
  2. C has had a Statement of his Special Educational Needs under the previous legislation. This was recently converted to an EHC Plan.
  3. 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

  1. 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 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.
  2. The Council says schools should make these referrals. But, it will step in, when schools cannot or chose not to.
  3. As a guide to accessing its Health Needs Education Service, the Council’s policy states that it is for pupils:
      1. with acute medical needs;
      2. the pupil’s health has significantly reduced their ability to access their home school;
      3. a senior medical professional (such as a consultant, Child and Adolescent Mental Health Services [CAMHS]) is providing support, diagnosis or advice;
      4. a change of medication may mean the pupil requires increased medical review/intervention;
      5. an acute mental health condition is disrupting the young person’s ability to attend school.
  4. The admission criteria states that a General Practitioner’s (GP) referral is not sufficient. CAMHS should be supporting the pupil or there should be a consultant involved.
  5. The Education Health Needs Referral Panel meets weekly to consider applications.
  6. The Council’s policy says that its criteria for access should be used as a guide. This means that there is some discretion about whom the Council considers is appropriate for referral.

Key facts

  1. The Educational Occupational Therapist’s (OT’s) report of June 2016 referred to C as being diagnosed with Autistic Spectrum Disorder (ASD), dyslexia and functional behaviour delays. The Occupational Therapist also noted C has hyper mobile joints, sensory difficulties, sensory modulation, visual perception and auditory difficulties.
  2. 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 by his GP. Mrs X provided the required medical certificates and evidence of his injuries to the Council. He has required extensive dental work because of the assault.
  3. The Council says that C could have attended full-time at its special off-site unit which 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 have been entitled to free school transport.
  4. 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.
  5. 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.
  6. 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.
  7. The Council considered that there were no medical grounds for providing 25 hours tuition only at home. The Council offered Mrs X the options of 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).
  8. On 21 September Mrs X accepted the 6 hours home tuition 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.
  9. C was seen by CAMHS because of his increased anxiety. Mrs X says C was not sleeping and he kept thinking about the assault. She says that the Council allowed C to have 20 hours home tuition in 2015 so she did not understand why the Council could not offer this now.
  10. The Council says that it deals with requests for home tuition 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.
  11. C had also not been receiving OT provision. But this matter was subsequently resolved with the Council accepting that there had been a loss of this provision and making an appropriate compensation payment for this.
  12. 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. So, I recommended 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 C’s schooling and whether he was medically able to access tuition anywhere else besides in the home environment.
  13. The professionals’ meeting took place in January 2018. The Council decided that, because there was now an assessment from CAMHS and C required additional support, it could make a referral to its Health Needs Education Service. In the meantime, the home tuition would continue and the Council also remained of the view that the off-site unit was available to provide alternative full-time education, Therefore, it had met its obligation to provide education while C was unfit to attend School Y.

The referral to the Council’s Health Needs Education Service

  1. The Council made a referral and C was accepted. After discussion about whether C was entitled to free school transport (which the Council subsequently agreed to provide), C started at his local medical school hub at the beginning of the summer term, April 2018. Mrs X says that C settled well and he felt safe and less anxious.
  2. Mrs X then questioned why the medical hub could not have been offered to C earlier. She says School Y was told not to make a referral by the Council. She was also told initially that C could only remain there for 6 weeks although this has later transpired not to be the case.
  3. The Council has explained that a referral to its Health Needs Education Service 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 this Service. The Council’s policy says that the criteria for access should be used as a guide.
  4. There was also a dispute between the Council and Mrs X regarding C’s next school placement as from September 2018. This matter was considered by the First Tier Tribunal and it was decided that C should return to School Y but at Year 10 (beginning of the GCSE options). School Y has said that it can now only offer a place at year 11. Mrs X has now appealed on a point of law to the Upper Tribunal and the appeal is due to be heard in January 2019.
  5. In the meantime, C remains at the medical school but he is not able to pursue all his GCSE options there.

Analysis

  1. The law is clear that, where a school does not make appropriate arrangements for a child who is missing education through illness, the Council must intervene and make such arrangements itself.
  2. The Council considered Mrs X’s objections to the offer of alternative full-time education at the off-site unit and it was satisfied that this option was appropriate for C.
  3. However, C had been determined by his GP to be medically unfit to attend school and Mrs X sent to the Council the required medical certificates. These certificates should have been sufficient for the Council to be satisfied that C was unable to attend school, at that time, and it should have referred C to its Health Needs Education Service within 15 days or ensured that School Y did. It is only because of the professionals’ meeting in early 2018 that the Council made such a referral and C was successfully placed at the local medical hub, starting in April 2018.
  4. Therefore, I consider the Council delayed in making this referral and, but for this delay, C could have been placed at the medical hub some 6 months earlier, say by late September 2017. This amounts to fault by the Council causing an injustice. It is also the case that the Council’s offer of home tuition appeared to be based on what the Council was able to provide rather than what C required.
  5. The medical hub has proved the right placement for C and, while C has not been able to pursue all his GCSE options there, he has been receiving appropriate education in key subjects and has not been socially isolated. So, the Council’s earlier delay has resulted in more than lost educational opportunities for him. He missed out on the companionship of his peers.
  6. The Ombudsman will usually recommend a payment of £200 to £600 per month for lost education. He will take account of the impact of the lost education on the child’s life chances and whether any additional provision can remedy some or all of the loss. The Ombudsman will also make payments for complainants’ avoidable distress and frustration and for unnecessary expenditure.

Agreed actions

  1. In view of the fault causing an injustice, I recommend the Council undertakes the following actions within two months of the date of my final decision statement:
      1. review and clarify its policy regarding referrals to its Health Needs Education Service, specifically looking at the medical evidence required for schools, or for the Council, to make a referral and amending its policy to include a GP’s sick certification as sufficient to determine that a child has medical needs preventing school attendance. It is also the case that referrals to CAMHS, or the provision of treatment, can be delayed and the Council therefore needs to consider the impact of this on its current insistence that a pupil, out of school, should be under a CAMHS Consultant. The Council might also wish to talk with its local health trusts to ensure a more coordinated response between health and education where pupils cannot attend school for medical reasons;
      2. the Council’s review should also clarify its policy regarding free school transport to pupils, unable to attend school through illness, but who can attend one of the Council’s medical hubs;
      3. the Council should review its policy on home tuition, with particular reference to how it reaches decisions about where individual tuition can take place (library or home), how it ensures pupils, who are able to manage full-time education (despite their medical needs), receive this and how it ensures the tuition is on par with other pupils in the same year group, especially at the GCSE and A level stage;
      4. to compensate C for the loss of education at the medical hub, I recommend the Council apologies to Mrs X and to C and makes a payment of £1,500 to be used for C’s educational benefit as considered appropriate by Mrs X, C and his current teachers. In making this recommendation, I have taken into account that C received some education between September 2017 and April 2018;
      5. to pay Mrs X £250 for her time and trouble in pursuing her complaint.

Final decision

  1. It is to the Council’s credit that it has recognised the faults in this complaint and it has been willing to resolve and compensate C and Mrs X for the injustice caused as a result. But this complaint has also highlighted the Council’s lack of a clear and cohesive policy for pupils, unable to attend school for medical reasons, and it now needs to ensure that these pupils receive appropriate education promptly and within 15 days of being out of school.

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Investigator's decision on behalf of the Ombudsman

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