Summary: There was fault by the Council in failing to provide education to a child who, due to anxiety and depression, could only attend school intermittently. There was also fault in the Council’s commissioning arrangements for alternative education and its advice to schools. This caused the complainants distress, loss of education and unnecessary legal fees. The complaint is upheld

The complaint

1. Ms X complains on her own behalf, and on behalf of her son, whom I shall refer to as Y. Ms X complains the Council:
• failed to provide suitable fulltime education to Y when he was unable to attend school full-time due to anxiety and depression
• advised Y’s school not to send work home, not to accept a diagnosis from a private medical professional, and to mark Y’s absences as unauthorised instead of due to illness
• failed to learn lessons from a previous similar complaint
• did not have systems and processes that supported children who could not attend school due to mental health issues
• provided confusing responses to the complaint, putting the case back to stage one after the stage two investigation
• took too long to complete the complaint.
2. Ms X complains that as a result of the fault:
• Her son has been treated as a truant and she was labelled a ‘tricky parent’ and accused of unreasonably keeping her son off school
• Y was excluded from education for many months
• Ms X was unable to work due to Y being at home without any education
• Ms X has been put to unnecessary time and trouble pursuing the complaint.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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)

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How I considered this complaint

6. I have considered information provided by Ms X and the Council including:
• Ms X’s previous complaint to the Ombudsman about loss of education of her older child in similar circumstances
• Correspondence between Y’s School and the Council
• Y’s attendance record
• The complaint correspondence
• The Council’s policies:
1. Policy Statement ‘Ensuring a good education for children who cannot attend school because of health needs’
2. ‘Threshold and Referral Criteria for referral to Hospital Education & Re-integration Service (HERS) from CAMHS and Paediatricians’
3. Customer Feedback Policy.
7. I have considered the relevant law and guidance including:
• The Education Act 1996, Section 19
• The Equality Act
• Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ 2013 (‘The Guidance’)
• Statutory guidance ‘Children missing education’ 2013
• Statutory guidance ‘School Attendance’, 2013
• Statutory guidance ‘Alternative provision’, 2013
8. I have considered guidance issued by the Ombudsman:
• Guidance on Remedies
• Focus Report ‘Out of School…Out of Mind?’
9. I have written to Ms X and the Council with my draft decision and considered their comments.
10. 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

Relevant law and guidance

11. Councils must arrange suitable full-time education (or as much education as a child’s health condition allows) for children of compulsory school age who because of illness, exclusion from school, or otherwise, may not for any period receive suitable education unless such arrangements are made for them. (section 19 Education Act 1996). This means a Council does not need to intervene where a school has made suitable provision.
12. The Guidance says Councils:
• should provide such education as soon as it is clear a child will be away from school for fifteen days or more, whether consecutive or cumulative
• should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision
• should ensure the education children receive is of good quality and on par with that provided to peers
• should not have policies in place that prevent a child getting the right type or provision and a good education
• should not withhold or restrict provision on the basis of what it will cost
• should not have policies based upon the percentage of time a child is able to attend school rather than whether a child is receiving a suitable education during the attendance
• should work with schools to complement the education a child receives if they cannot attend school full-time but are well enough to have education in other ways
• should intervene where it considered arrangements made by schools were not suitable or were suitable but not full-time, which might be the case where ‘the child can attend school but only intermittently’.
13. The Guidance says the legal duty to arrange suitable education ‘applies equally whether a child cannot attend school at all or can only attend intermittently’.
14. ‘School Attendance’ guidance says schools should authorise absences due to illnesses unless they have genuine cause for concern about the veracity of an illness. If the authenticity of the illness is in doubt schools can request parents to provide medical evidence to support illness. Schools can mark the absence as unauthorised if not satisfied of the authenticity of the illness but should advise the parents of their intention. Medical evidence can include appointment cards and prescriptions rather than doctors’ notes.
15. Where specific medical evidence, for example from a medical consultant, is not available quickly the Guidance says Councils should consider liaising with other medical professionals such as the child’s general practitioner (GP) and consider looking at other evidence to avoid delay.
16. Councils do not have to provide alternative education in cases of truancy as the child has a place at school and should be attending. Schools and Councils can use various legal powers if a child is missing school without good reason which can lead to a parent being prosecuted or fined.

Council’s policies

17. The Council’s policy for children who cannot attend school because of health needs says:
• All children will continue to have access to education when they are ill and unable to attend school
• The nature and amount of education will be dictated by their medical condition balanced with a need to keep up with their studies
• The Hospital Education and Reintegration Service (HERS) will ‘liaise with appropriate medical professionals…medical consultant and GP to ensure minimal delay in arranging provision’
• Schools must have established systems in place to challenge or support persistent absence which parents attribute to illness
• If a child is considered unfit to attend school full-time the Council will arrange with schools suitable alternative education through HERS
• It is the responsibility of schools to complete the appropriate request for support form and send it to HERS with written medical advice / diagnosis
• HERS will initially assess the application, liaise with the Consultant / GP and School, consider the views of the child, and engage with the child as soon as possible.
18. The threshold and referral criteria for the HERS service says:

‘Education will only be arranged for children who are not able to attend their education provision at all due to a diagnosed medical condition and only for the duration of that medical condition. This means HERS will not supplement education for children who are attending their school…on a part-time basis due to ill-health; we would expect the school to supply this provision until the pupil can return full-time’;

19. The HERS criteria in place at the time of the complaint issues said:

‘All referrals must be fully completed by the registered school…and be accompanied by the HERS medical form completed by an authorised clinician/paediatrician. For reasons of poor physical health the medical opinion must come from a paediatrician, for children with a social, emotional, mental health difficulties, this must be completed by a CAMHS coordinator’. (CAMHS is the Child and Adolescent Mental Health Services).

20. Ms X told me this criteria was changed following her complaint to include a wider pool of professionals.
21. The Council’s policy refers to previous issues providing suitable education for children who suffer from chronic fatigue syndrome or with emerging mental health issues. It refers to these as ‘hidden’ debilitating conditions that can vary considerably.
22. The Council’s service standards for complaints are that a stage one response will be provided within fifteen working days and a stage two review within thirty working days. The Council’s complaint policy allows for complaints which are identified at stage two to have been inadequately considered at stage one, to go to back to stage one for further consideration rather than proceed to a stage two investigation.

Chronology of events

23. In November 2017 Y started to display signs of anxiety and depression which affected his ability to attend school. Y’s GP provided a letter confirming Y’s ill health and the involvement of a mental health therapist.
24. Y’s School marked his absence with the code ‘I’ for illness until the week commencing 4 December when it started to mark the absence as unauthorised.
25. On 22 November a telephone note by the Council’s Children Missing from Education Service (CMES) indicated Y’s School had sent attendance letters and held a meeting with Ms X. The CMES noted the School was authorising absences as illness. It noted the meeting should have explored health issues and asked for medical evidence to confirm what support Y needed and that illness was the reason for his absence if the School had any doubts. It noted CMES did not accept referrals to take legal action for attendance where absence was authorised.
26. On 6 December CMES repeated the advice to School about the process to address issues preventing attendance and about the criteria for referral to CMES. Advice was not given about referral to HERS.
27. On 18 December Y’s GP wrote to Y’s School noting Y had been asked to provide a GP letter regarding his poor attendance. The GP referred to Y’s anxiety and panic attacks and the fact he was seeing a private mental health therapist. The School continued to mark the absence as unauthorised, not as illness, despite the GP letter. There is no evidence the School spoke to the Council again at that time.
28. On 29 December CMES wrote to the School about children whose attendance was of concern after review of the term’s attendance data. Y was on the list as having 15 absences due to illness and 37 unauthorised absences. CMES asked the School to advise what action it had taken to improve attendance and reminded the School once school level interventions were completed cases could be referred to CMES.
29. By January 2018 Ms X says Y’s difficulties had escalated and on advice from the GP, Ms X arranged for Y to see a private consultant clinical psychologist. Ms X says the GP advised her to go private if she could afford it to avoid delay.
30. The private psychologist provided a written report which Ms X shared with Y’s School on 30 January 2018. This confirmed Y had anxiety and depression which was preventing him attending school except for some lessons. The psychologist recommended cognitive behavioural therapy and joint working with the School to agree a manageable plan of small steps towards reintegration.
31. The attendance data shows Y attended only two sessions in January 2018 and then stopped attending school completely.
32. On 31 January Y’s School spoke to CMES again for advice in advance of a meeting with Ms X on 7 February. CMES advised if no medical professional was advising the child should not be in school then the child should be attending. The School said the private psychologist advised that due to his anxiety Y should lead on when he should attend school. CMES said it would need evidence from CAMHS or a Consultant level medical doctor to allow Y to be out of school. The School was refusing to send work home as this would imply the absence was authorised. CMES advised this action was correct and ‘best practice’ and that CMES would have expected a referral once attendance fell below 50 percent.
33. The School noted on its file it would not support Ms X’s suggestion Y attend one lesson per day and would only support a reduced timetable for two weeks. It said it would not send work home unless there was a Consultant’s letter outlining the need for long term home tuition as to do so would support the absences and at the moment School did not have a clear reason for Y to be off school. This approach was supported by the Council.
34. At the same time the School contacted HERS to check its criteria and provided a copy of the psychologist’s report.
35. On 1 February HERS refused to accept the referral because:
• it would only accept medical opinion from CAMHS for mental health conditions
• Y had to be medically unfit to attend school at all (or must attend full-time)
• The evidence provided indicated Ms X wanted Y to continue to attend school and the psychologist’s advice encouraged Y to continue to do this and did not state he shouldn’t be in school
36. Ms X said the advice Y must attend full-time or not at all conflicted with the psychologist’s advice that Y needed a flexible approach and a reintegration he felt was manageable. Ms X made a complaint to the School.
37. On 12 March Y’s School noted Y either needed a CAMHS sick note or paediatric report stating he should be off school with HERS tutoring or School should pursue the CMES route. The School noted it had advised Ms X to get paediatric advice.
38. The School then made a referral to CMES on or about 22 March.
39. In April 2018, following a complaint meeting at School, Ms X provided a further GP letter to authorise Y’s absence. The GP advised the private psychologist’s advice that Y could not attend due to anxiety and depression and would require a gradual reintegration should be followed. The GP said strategies should be agreed between School and the psychologist. The GP said a referral to CAMHS would not be in Y’s best interests as he had a working relationship with the private psychologist.
40. The School said this letter would not change that Y’s absence would be treated as unauthorised as the psychologist advised Y should return to school as soon as possible and strategies were in place via a two week reduced timetable to support this. However, in internal correspondence the School allowed teachers to send work home.
41. On 3 May 2018 CMES advised as School had in effect authorised the absence by allowing work to be sent home it could not now accept the case.
42. On 22 May CMES replied to an internal query about Y’s attendance to explain its role was limited to pupil attendance that required a statutory intervention and that it had made the School aware it would not accept the case due to inaccuracies in coding and poor school level intervention. In particular, the School had not done enough to challenge Y’s persistent absence. The School could re-refer in future once appropriate school level action was taken.
43. On 13 July the CMES spoke to Y’s School as a complaint meeting had been arranged with the Governors, Ms X and Y’s psychologist for 17 July. The Governors were supportive of the School’s position the absence was unauthorised and Y should return to school. Y’s School said it would be re-referring Y to CMES in September.
44. After the meeting Y’s School told the Council it had refused to authorise the absences or to send work home but did agree to let Ms X know what topics were being studied that term. The School told the Council Ms X was speaking for the psychologist and implied the psychologist did not support Y’s absence from School. Ms X wanted HERS provision for Y. Ms X agreed to get a CAMHS referral and get updated advice from the GP if this was what was required to access tuition. Ms X also said she would be applying for Education, Health and Care plan.
45. The private psychologist later provided a letter confirming she did not consider Ms X was speaking for her at the meeting and did support Y’s absence from School.
46. On 18 July Y’s private psychologist spoke to:
• Y’s GP who agreed to sign Y off school as medically unfit
• HERS who again refused to accept a referral except from CAMHS or a paediatrician
• CAMHS who considered a referral from a private psychologist should be sufficient and said they could not do the HERS referral unless Y’s care was transferred to them, which would require an initial assessment.
47. The psychologist and Ms X agreed to put in a referral to HERS with support of the GP and hope this was accepted.
48. On 18 July Y’s GP provided a further letter confirming Y’s absence was due to depression and anxiety and supporting the referral to HERS.
49. On 19 July HERS accepted the referral for consideration. The Council made further enquiries of the private psychologist and required the School to complete required paperwork. Due to school holidays this was not completed until September.
50. On 25 July Ms X’s Member of Parliament (MP) wrote on her behalf to the Council complaining Y had not received any suitable education since January 2018. Ms X said at this time she was unaware the HERS referral had been accepted.
51. On 8 August HERS told the psychologist the referral had been accepted but that this could not be progressed without information from school. In mid-August HERS requested further information from the psychologist, which was provided promptly.
52. On 5 September 2018 Ms X made a formal complaint to the Council that Y had received virtually no education that year despite three letters from his GP and a report and meeting with the Consultant Psychologist. Ms X also complained about delay processing the July HERS referral.
53. On 6 September the Council records show it had received the necessary information from the school to progress the request for HERS tuition.
54. On 10 September Solicitors acting for Ms X wrote to the Council stating the Council had failed in its duty to provide Y with suitable education in accordance with Section 19 Education Act 1996 since at least March 2018. Ms X told me she instructed Solicitors because she had not heard anything from the Council since the referral was made in July.
55. On 11 September the psychologist was asked to complete a referral form and provide more information about her qualifications. The psychologist confirmed Y was medically unfit to attend school but with appropriate support and a very gradual reintroduction / exposure to school may be fit to attend on a very part-time basis. The psychologist noted that Y’s School had stated in the meeting in July it would not continue to mark Y’s absence as unauthorised but had then reneged on this position.
56. On 19 September HERS agreed to provide tuition.
57. On 28 September the Council provided a stage one response denying fault as it said no request for alternative education had ever been made. The evidence submitted indicated the psychologist, School and Ms X had appropriate plans in place. It said once the July HERS referral was made it was actioned as soon as information was received from Y’s School in September. The Council also said only nine days had been lost from the referral being received on 20 July and tuition starting and, as this was not over fifteen days of absence, there was no breach of statutory duty. The Council also said CMES had given appropriate advice to Y’s School about the evidence required for legal action for non-attendance. It acknowledged the School had undermined CMES ability to take action as it had recognised Y’s illness by sending work home.
58. On 28 October Ms X and her Solicitors requested the complaint proceed to stage two as it said the Council had knowledge in at least March 2018 that Y’s attendance was not improving. The Council’s stage one response on 16 November acknowledged the stage one had focussed on the period after July 2018 and that the period from March to July had not been considered. The Council said the complaint would now go back to stage one for further consideration.
59. In December 2018 the Council conceded it could have acted more promptly to investigate Y’s absence when it did not accept the School’s CMES referral in March 2018: ‘in retrospect the Local Authority has been able to see that the School based interventions were not supporting Y to access his education as his attendance did not improve’. The Council offered a payment of £400 to Y for loss of education and £200 to Ms X for inconvenience.
60. Ms X was not willing to accept this offer and brought her complaint to the Ombudsman.
61. The Council told the Ombudsman:
• Y’s School sought advice from CMES on 22 November 2017 and 31 January 2018 about Y’s attendance
• Y’s School sent the psychology report on 31 January to HERS. The Council did not interpret this report as suggesting Y could not attend school on medical grounds or that he would need education provided by the Council. The Council interpreted the report as advice to the School on strategies to support Y
• Y’s School made a referral to CMES on 22 March which was rejected
• CMES and Y’s School continued to liaise from March to July 2018
• The HERS referral was accepted on 19 July with tuition provided from September 2018 to June 2019
• The HERS referral was accepted before Ms X made a formal complaint and involved Solicitors
• Y was on roll at a school and had education available to him throughout
• The Council’s policy does not state private practitioners cannot make HERS referrals but the Council acknowledges it has provided unclear advice on two occasions (in January / February 2018) about who can make a referral to HERS which was contradicted in July 2018 when the Council did accept a referral from a private practitioner.
• The Council accepts Y’s access to HERS was delayed from March to July 2018
• It is clear the Council needs to review its policies to ensure clarity about referrals from private practitioners.
• The Council has taken actions in the last eighteen months to increase its oversight of children missing education including:
1. Employing an Education out of School Officer and a single point of access to manage referrals and allocation of alternative education
2. Seconded a School Nurse to CMES to support families where medical needs are preventing attendance
3. Recommissioned its HERS service to a broader offer of individual, small group and on-line learning.
62. Ms X previously had reason to complain to the Council about Y’s sibling for whom the Council provided only one hour of education per week when he was too ill to attend school between 2014 and 2016. Ms X says she was promised lessons would be learned after this complaint but she felt this had not happened.

Analysis

Fault

63. We cannot consider the role of the School as schools are not within our jurisdiction. This investigation is limited to consideration of the role of the Council.
64. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. This duty arises even where a child continues to attend school intermittently, as is often the case where a child has mental health difficulties or a fluctuating condition. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
65. Our Focus Report ‘Out of School…out of mind?’ recommended Councils:
• always consider the individual circumstances of each case
• consult all the professionals involved
• choose based on all the evidence whether to enforce attendance or provide suitable alternative education
• keep all cases of part-time education under review
• put whatever action is chosen into practice without delay.
66. The law requires councils to intervene whenever absence is not due to truancy, the category of ‘otherwise’ provides for a wide range of scenarios where the Council may have a legal duty under Section 19. Councils can ask schools to assist in providing alternative education but they cannot delegate the Section 19 duty to schools. If there is doubt whether to enforce attendance or provide alternative education, for example because there is the need to obtain further evidence about a child’s health, the Ombudsman would expect councils to act in the best interests of the child and provide education until the further evidence is available.
67. The Council has admitted fault in not providing suitable alternative education to Y from March 2018 when the referral to CMES was rejected without further investigation of why Y’s attendance was not improving. The Council has also accepted it gave misleading advice about which professionals could make a referral to HERS.
68. I have identified further fault in that:
• While the Council has acknowledged previous issues with children with ‘hidden’ conditions it has not commissioned alternative provision for children who can attend school only intermittently. The only provision it offers is HERS and this is restricted to children who cannot attend school at all. The Council cannot assume that schools will take on all the responsibility for children who, due to confirmed medical conditions or otherwise, cannot attend school full-time. The Council should have provision available to supplement part-time attendance where necessary.
• HERS should have accepted the referral on 1 February for initial consideration and sought further evidence if required.
• The Council was inflexible about the medical evidence it was willing to accept. I can see no good reason why the Council did not accept the GP and private psychologist’s evidence of Y’s ill-health. If evidence is unclear, the correct action is to contact the medical professionals for clarification, not automatically treat absences as unauthorised. The psychologist’s advice did not change between February 2018 when the HERS referral was rejected and September 2018 when it was accepted.
• The Council policy in place at the time did restrict the professionals who could provide evidence to HERS, but the Council has taken action to amend this.
• The psychologist’s evidence was clear that it was counter-productive to force Y’s attendance; due to his anxiety he needed to be in control of when he attended school. The Council should have considered the individual circumstances of Y’s case, given the School appropriate advice, and been willing to work co-operatively to implement a gradual reintegration.
• The Council was overly focussed on the process for non-attendance and in collecting evidence to support this. I find it lost sight of the child and that there was evidence to support Y was unwell. CMES gave advice in November and December 2017 about its process if the illness was not genuine but did not give advice about what to do if the illness was genuine. It did not give advice about HERS or about the legal duties to children who could only attend school intermittently.
• The Council should have advised it would be appropriate to send work home where a School was satisfied a child could not attend school full-time due to illness. Y unnecessarily lost out on the opportunity to keep up with his studies.
• I find HERS did not agree to provide tuition in July 2018. It accepted the referral for consideration and sought further evidence. The Council only agreed to provide tuition in September.
• The Council did not keep Ms X informed about the referral process which led her to instruct Solicitors because no tuition was in place for September 2018.
• The Council wrongly dismissed the complaint initially. The School did try and make a HERS referral on 1 February so it was incorrect to say alternative education had never been sought.
• The Council’s policy allowed it to put the complaint back to stage one because complaint handling had been found to be inadequate at stage one. However, this caused delay and confusion for Ms X and meant the complaint took four months to be resolved.
• The Council’s offer to Ms X and Y is too low for this level of injustice. The Ombudsman recommends where fault has resulted in loss of education a payment of between £200 to £600 month is appropriate to acknowledge the impact of that loss taking into account all the factors.

Injustice

69. The fault caused injustice to Y and Ms X in that:
• Y was wrongly treated as a truant and Ms X as a parent supporting truancy. This caused unnecessary distress at a difficult time for the family, particularly given it was the second time Ms X had to bring a complaint where mental health difficulties had affected school attendance.
• The small step strategies and joint working recommended by the psychologist did not happen because the Council would not accept the private medical advice. This meant not only did Y lose out on education, but he did not receive the right support to help him overcome his anxiety about school. Ms X told me that not being able to access school at all exacerbated Y’s anxiety and made the return to school more difficult.
• Had appropriate provision and policies been in place for children with mental health conditions who could only attend school intermittently, then Y would on the balance of probabilities have received support from 22 November 2017, when the Council first became aware of his situation, rather than September 2018.
• Ms X unnecessarily incurred Solicitors costs to challenge the Council’s failure to provide suitable education when the Council should have been aware it had a duty to provide this from the start.
• Ms X was put to unnecessary time, trouble and inconvenience pursuing a second complaint to the Council for one of her children. However, I consider Ms X ‘s ability to work would have been compromised in any event due to the need to be at home to support home tuition.

Agreed action

70. Following consideration of my draft decision, the Council has agreed to carry out the following actions within four weeks of this final decision:
• Apologise to Ms X and Y for the faults identified
• Pay Ms X £1000 for the distress, time, trouble and inconvenience she has been put to pursuing suitable education for Y and the complaint
• Refund Ms X the legal costs she incurred to secure alternative education for Y under s.19 Education Act
• Pay Y £5000 to acknowledge the impact of the loss of education from November 2017 to September 2018 and for the distress caused by the Council’s failure to heed the medical advice and work in partnership to support Y’s mental health. The money should be held in a savings account in Y’s name but managed on his behalf by his parent(s).
71. Within three months of my final decision the Council will:
• prepare a policy for children missing education intermittently
• review its commissioning arrangements to ensure there are appropriate services in place to meet the needs of such pupils
• share a copy of the policy with schools and council officers providing practical guidance of the process to be followed
• provide a report to the Ombudsman setting out the actions the Council has taken to prevent a recurrence of the faults identified and sharing a copy of the policy.

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Final decision

72. There was fault by the Council in failing to provide suitable supplementary education to a child who, due to anxiety and depression, could only attend school intermittently. There was also fault in the Council’s commissioning arrangements for alternative education and advice to schools. This caused distress, loss of education and unnecessary legal fees. I am satisfied the actions set out above represent an appropriate resolution to the complaint. My investigation is complete and the complaint is upheld.

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Investigator's decision on behalf of the Ombudsman