Birmingham City Council (18 018 161)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 04 Dec 2019

The Ombudsman's final decision:

Summary: Miss Y complained the Council failed to provide suitable full-time education to her child, D, who cannot attend school because of anxiety. The Council was at fault. It delayed ensuring D received a suitable education and so D has missed out on a year of school. The Council has agreed to make a payment to acknowledge the loss of education and ensure a suitable plan is in place for D’s education. It has also agreed to review its policies to ensure appropriate education is in place for those who are out of school for reasons other than illness.

The complaint

  1. Miss Y complained the Council failed to provide suitable full-time education to her child, D, who cannot attend school because of anxiety. Miss Y said this has led to D missing education and caused upset and inconvenience for both her and D. Miss Y said the Council has also threatened her with legal action.

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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 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)
  2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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)
  4. 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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How I considered this complaint

  1. I considered the information provided by Miss Y and the Council.
  2. I read the Ombudsman’s focus report “Out of sight… out of mind?” and the Ombudsman’s guidance on remedies when making my draft decision.
  3. I wrote to Miss Y and the Council with my draft decision and gave them an opportunity to comment before I made this final decision.

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What I found

Legislative background

  1. Parents have a duty to ensure their children of compulsory school age are receiving suitable full-time education. (Education Act 1996 section 7)
  2. Under section 19 of the Education Act 1996, councils have a duty to make arrangements for the provision of suitable education at school or elsewhere for 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”. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
  3. The Government’s statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children with medical health needs. It states that councils should:
    • have a written, publicly accessible policy statement which explains how it will meet its legal duty towards children with additional health needs. This policy should make links with related services in the area, such as the Special Educational Needs and Disability Service and Children and Adolescent Mental Health Service (CAMHS);
    • have a named officer responsible for the education of children with additional health needs, and parents should know who that person is; and
    • not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.
  4. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
  5. We issued a focus report in September 2011, amended in January 2016, “Out of sight…. out of mind?”. This gives guidance for 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 report made six recommendations for councils, including they:
    • consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for 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;
    • adopt a strategic and planned approach to reintegrating children back into mainstream education where able; and
    • put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
  6. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
  7. The Council has commissioned a single specialist academy to provide education for children who cannot attend their school because of confirmed medical needs. Children are referred by their schools to the academy and their application is heard by a panel. The panel considers whether it can offer a place to each child based on the evidence available.
  8. The school’s referral form requests copies of various documents, including evidence of formal medical diagnosis, reports and summary of ongoing involvement from health services and evidence of involvement from other professionals. The academy does not accept letters from GPs as sufficient evidence of a formal medical diagnosis as GPs are not specialists, for example in mental health.
  9. The Council has a policy for children who are not attending school due to illness or other reasons. This is called “Fast-track to attendance” and includes a step by step guide for early help to improve pupil attendance. This includes a four-step process for schools to follow when there are concerns about a child’s attendance. It requires an informal meeting, followed by a formal meeting. Following this if absence continues, a formal warning notice should be issued, before the school refers the matter to the Council.
  10. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.

What Happened

  1. D is 14 years old and has anxiety. D stopped attending school in December 2017 because of anxiety. Initially the Council was unaware of the absence, until Miss Y contacted the Council in July 2018 to raise concerns. Before this point, the Council says it would expect the school to follow its Fast-track to attendance process.
  2. Between January and July 2018, the school tried to assist Miss Y and D in the following ways:
    • referring D to a drop-in service for mental health;
    • referring D to CAMHS to consider any underlying issues such as autism, although assessments were inconclusive;
    • a reduced timetable to D’s existing school;
    • a managed move to another school; and
    • referral to the specialist academy for children who cannot attend their school because of confirmed medical needs.
  3. The specialist academy refused the referral in July 2018, telling the school that if a suitable specialist diagnosed D with a condition, it could re-refer. The school warned that “without a medical diagnosis, there will be a lot of missed opportunity”. It said it would now follow the Council’s “fast-track” process.
  4. The Council met with Miss Y in October 2018. Miss Y confirmed D was still waiting for an appointment with CAMHS and agreed to get a letter from D’s GP instead. The Council suggested the school apply for a special educational needs assessment for D. Miss Y said she had suggested this, but the school felt D would not be eligible for special educational needs support. Miss Y asked the Council for a home tutor to help support the family to educate D while D was waiting for an appointment with CAMHS. However, the Council said this would increase D’s school refusal and anxiety.
  5. Miss Y was able to get a letter from D’s GP, confirming D could not attend school because of anxiety. The Council emailed Miss Y shortly after this, saying it was difficult to see what else the school could do to support D and that the support offered was consistent with other schools. It explained that the specialist academy would not accept a referral without the specialist medical evidence showing D was unfit to attend school.
  6. In November, the school referred D to the specialist academy, providing the GP’s letter to support the application. It also sent work home for D to complete. Miss Y told the school D was unable to complete the work.
  7. A further letter from D’s GP was sent in December 2018, confirming D was medically unfit to attend school. The school agreed to pass this letter to the specialist academy but warned that the school does “not accept GP letters as they are not the specialists in mental health”. At the same time, Miss Y complained to the Council about the lack of provision for her child, and that it was being suggested she may be prosecuted for D’s non-attendance.
  8. Miss Y contacted the school in February 2019, confirming D had now received an appointment with CAMHS, but this would not be until October 2019. The school referred D to the specialist academy again, and D was offered a place in March 2019. However, Miss Y said D’s anxiety meant that D was unable to travel to and from the school placement and asked the academy to provide home teaching instead. In May 2019, the academy refused this, explaining that there was no specialist mental health advice saying home teaching was in D’s best interests. It suggested D receive 1:1 tuition in a separate room, to help reduce their anxiety before being integrated into the main academy structure.
  9. Miss Y also provided a further letter from D’s GP, saying D was not well enough to attend school due to their anxiety. The letter said D would be unable to attend until the end of the summer term.
  10. Since July 2019 the specialist academy has provided two hours of home teaching for English and Maths each week for D, which the Council says is the maximum the school has to offer. D has engaged well with the home teaching. However, the academy says this was only to be a short-term arrangement. The Council says D's teachers believe D will be able to successfully transition into the school. It is now encouraging Miss Y and D to make the transition to its main centre for D’s age group. D has yet to receive a formal diagnosis from CAMHS.
  11. In its response to my enquiries, the Council explained that D’s secondary school is an academy. Under the Council’s process, it is unable to take legal action against a parent for non-attendance without a referral from the education provider. As the school is an academy the Council has very limited powers to become involved with its day to day running, in particular with arrangements for referring poor attendance to the Council. Despite this it has reminded the school of the Council’s “fast-track” procedures.
  12. The Council also said the specialist academy provides all the city’s provision for children who are too unwell to attend school. As an academy, it makes its own decisions about which children should be admitted. It confirmed that the Council has no power to direct the academy to admit a particular pupil.
  13. During my investigation, the Council has also accepted that it should have a published policy to explain procedures for supporting children who are unable to attend school due to medical needs. It has notified schools, GPs and social care services of its new procedure for this, which also includes a quicker referral system for CAMHS to get help for such children more quickly. It says the new approach has so far proved successful in many cases.
  14. The Council is also reviewing its procedures to ensure children with medical needs are identified and the Council can ensure it is meeting its duties to them under section 19 of the Education Act. It is also drafting a policy to provide for children who for reasons other than exclusion and illness are unable to attend school.
  15. The Council accepts D’s absence from school has been too long. It says it has now identified suitable provision and an action plan to support D to reintegrate into a school setting. However, it needs Miss Y and D to engage with this.


  1. When D stopped attending school in December 2017, the school took steps to try to help D reintegrate back into education. At this point the Council was not aware that D had stopped attending school. I cannot look at the actions of the school.
  2. However, in line with the statutory guidance, the Council should have had an agreement with the school (even if it is an academy) to be told of any pupils who are not attending regularly.
  3. The Council became aware of D’s absence in July 2018. It met with the family in October 2018. As D was still refusing school due to their anxiety, Miss Y asked the Council at the meeting to provide a home tutor. The Council refused this, but did not then act to put other provision in place for D. The Council’s failure to provide alternative provision was fault.

Specialist academy

  1. Despite GP letters and two earlier referrals, it was only on receipt of the referral letter from CAMHS that the specialist academy offered D a place in March 2019. To this date no other provision was offered other than the mainstream school setting D had attended previously. However, D was too anxious to attend the specialist academy or their previous school. Despite requests from Miss Y, it was not until July 2019 that any provision was made for D. They were then provided with home tuition for a period of two hours per week 1:1 for Maths and English by the specialist academy.
  2. Given the length of D’s absence, there is no evidence the Council considered other alternatives to support D’s education. It was not until July that the Council, through the specialist academy, took steps to provide home tutoring which D continues to receive.
  3. The Council has confirmed it is “not assured that two hours per week home tuition is in line with D’s current educational needs”. It continues to say that the remaining provision is available at the specialist academy if D attends. However, at this point D does not feel able to attend. It has agreed with the specialist academy that the provision can be given in a different room for a short period while D transitions on a one to one basis.
  4. The Ombudsman 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. It is for the Council, not the Ombudsman, to decide what is suitable provision for D. It is the Council’s view that the measures offered by the specialist academy are appropriate. However, the Council has not made clear how this is going to happen. This is fault. The Council must ensure D receives a suitable education. D is not receiving this at present and therefore the Council must ensure an appropriate plan is in place to move this forward.
  5. Miss Y and D will need to work with the Council to pursue the provision offered.

No policy

  1. The Council has confirmed that it had no policy or provision currently in place for the situation D faced. Consequently, when the specialist academy repeatedly refused the referral for D, no other provision was planned or available and it did not have a policy to follow for this situation. This was a gap in the Council’s services and in its duty to provide D with a suitable education and was fault.
  2. During this investigation the Council has begun to draft a new policy to fulfil its section 19 duty and make provision for those children who for reasons other than illness are unable to attend school.
  3. However, this will not remedy the impact on D as an individual. The Council needs to take action to apologise for this gap which led to D not receiving a suitable education.

Agreed action

  1. To remedy the injustice the Council caused to Miss Y and D, the Council has agreed, within one month of the final decision to:
      1. Apologise to Miss Y and to D in writing for its failure to provide a suitable full-time education to D;
      2. Pay Miss Y and D £200 in total to acknowledge the upset, worry and disruption caused by the fault;
      3. Develop a plan for D’s reintegration back into education, ensuring that is remains appropriate for D’s level of educational need. It should ensure Miss Y is kept updated regarding the plan and its progress;
      4. Pay £2,700 for Miss Y to use as she sees fit for D’s educational benefit to acknowledge the loss of education to D between September 2018 and July 2019.
  2. Within six months of the final decision the Council has agreed to:
      1. review how it provides education of those who, under section 19, are unable to attend for reasons other than illness or are unable to provide the required specialist medical evidence. It should consider whether further procurement is needed to allow more than one set of provision to offer education to such children to bridge the gap in its services;
      1. seek to make agreements with all schools and academies in its area as to how and when the schools will notify the Council of any pupil who fails to attend school regularly or without permission for a continuous period of 10 days or more; and
      2. finalise its new policy which makes provision for children to receive an education under the section 19 duty where they are unable to attend mainstream due to illness or for other reasons.

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Final decision

  1. I have completed my investigation and found the Council at fault for failing to provide D with a full-time education. The Council has agreed remedies for injustice caused and to prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman

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