Hampshire County Council (18 018 176)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 03 Dec 2019

The Ombudsman's final decision:

Summary: Mr X complains that the Council failed to provide his son with education for four months and there were delays handling his complaint. He says this meant his son missed out on education and exacerbated his illness. He says he had to provide his son with education. He says this caused worry, stress and inconvenience. The Ombudsman does not find fault with the Council about the child missing education. However, the Ombudsman finds fault with the Council for delays in handling Mr X’s complaint. This caused Mr X injustice. We are satisfied with the action the Council has already taken to remedy this injustice.

The complaint

  1. The complainant, who I refer to here as Mr X, complains about the way the Council handled his son missing education. He complains that:
      1. the Council failed to provide his son with full-time education for four months;
      2. the Council ignored medical advice and did not consult with medical professionals;
      3. the Council did not consider his son’s specific circumstances; and,
      4. there were delays in dealing with his complaint.
  2. Mr X says this meant his son missed out on education and social interaction with peers, and it exacerbated his illness and prolonged it unnecessarily. Mr X says he had to provide his son with education, rearrange work, and was threatened with penalty notices. He says this caused significant worry, stress and inconvenience, as well as cost.

Back to top

What I have investigated

  1. The Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so (see paragraph 13).
  2. In this case, there were delays in the Council responding to Mr X’s complaint. I find that it would have been unreasonable to expect Mr X to have complained to the Ombudsman any earlier.
  3. For this reason, I have decided there are good reasons to exercise the Ombudsman’s discretion and investigate this complaint.
  4. We cannot investigate complaints about what happens in schools (see paragraph 12). So, I have not investigated any actions the school took or what happened in the school. However, information about the school’s actions is relevant as context for the Council’s actions.
  5. It is for this reason there is information in this decision statement about what happened in the school.

Back to top

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 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. (Local Government Act 1974, section 34(3), 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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

Back to top

How I considered this complaint

  1. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
  2. I have considered the relevant legislation, statutory guidance and policies, set out below. I have also considered the Ombudsman’s focus report ‘Out of school … out of mind?’ (published in 2011, updated in 2016).

Back to top

What I found

What should have happened

Law and statutory guidance

  1. The Education Act 1996 (Section 19) says that education authorities (councils) 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.
  2. In 2013, the government published statutory guidance for councils about alternative educational provision. This says that, while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days.

Council’s complaints procedure

  1. The Council has a three-stage complaints procedure. This says all investigations should be completed within 20 working days, but sometimes this deadline may not be met if the case is complex.
  2. The procedure says that sometimes there is a different, more appropriate procedure which must be used instead of the complaints procedure. One example the procedure gives is for freedom of information or data protection matters.
  3. The procedure says that sometimes a complaint may require the Council to start another procedure. It says that it may not be possible to provide a full response to the complaint until the other procedures have been completed.

What happened

  1. In November 2017, Mr X contacted the Council because his son, B, was suffering from anxiety due to the class he was in at school. (B later began attending school part-time because of this.)
  2. The Council’s inclusion manager, Officer M, met with Mr X and the school’s head teacher a week later to discuss the issue. The meeting did not resolve the issue.
  3. Mr X complained to the school. His complaint was not upheld.
  4. Mr X gave the school medical advice from two doctors, which said B may be able to attend school full-time if certain adaptations were made.
  5. In January 2018, Officer M had a discussion with the head teacher. It was agreed that B would be put in a different class. B returned to school full-time in February.
  6. Following this, Mr X was in contact with the Council about codes of conduct, policies, the school’s actions, and the Council sharing data with the school without his consent.
  7. In June, Mr X complained to the Council. He wanted the Council to deal with his complaint, but the Council had said it needed to address the potential data breach first.
  8. The Council replied, saying the data breach enquiry was ongoing. It said that once the outcome of that was known, Mr X could tell the Council whether he wanted his remaining complaints to be dealt with.
  9. The Council then told Mr X the outcome of the enquiry, which was that there had been no data breach. Mr X replied, asking for a review of the data breach enquiry.
  10. In July, the Council told Mr X the outcome of the internal review, which was that there was no data breach.
  11. In September, Mr X complained to the Council. He said he wanted the Council to address the remainder of his concerns which he raised in June.
  12. At the end of September, the Council categorised Mr X’s complaint as a stage two complaint.
  13. The Council sent its stage two response to Mr X in October. It said there was no statutory duty for the Council to have intervened in this case, but Officer M agreed to try and help find a resolution, to get B back to school full-time.
  14. The Council said the school had a right to group pupils as it saw fit. It said it does not usually interfere in schools’ operational matters, but did on this occasion, which was unusual. It said it took time to negotiate a decision with the school.
  15. The Council said that B attending part-time was unsatisfactory, but did provide a window of opportunity during which time the Council persuaded the school to change its mind.
  16. The Council did not uphold Mr X’s complaint.
  17. At the end of October, Mr X asked that his complaint be dealt with at stage three. He complained that the Council had not answered each point of his complaint. He said the Council should have arranged alternative education provision for B, and should have liaised with medical professionals.
  18. Mr X complained that the Council encouraged the school to ignore medical advice. He said the Council unnecessarily delayed dealing with his complaint because it insisted on waiting for the outcome of the data breach enquiry before it investigated his complaint.
  19. In November, the Council wrote to Mr X explaining that it was considering how best to address his complaint.
  20. In January 2019, the Council wrote to Mr X saying the complaint would be investigated at stage three, but it had not been possible to allocate the complaint. It said it would contact him once it had been allocated.
  21. In February, Mr X complained to the Ombudsman.
  22. In March, the Council told Mr X his complaint had been allocated. It apologised for the delay which was due to staff shortages.
  23. Mr X replied, saying the allocated investigator was inappropriate because she had already been involved in the earlier investigation of his complaint.
  24. The Council allocated his complaint to a different investigator.
  25. In April, the Council sent Mr X its stage three response. It said Officer M confirmed he would not offer alternative provision for B because B had a full-time school placement available to him. It said Mr X supported B’s wish to remain in school.
  26. The Council said that the education available to B was suitable, therefore the Council did not have a duty to get involved. It said it understood that Mr X wanted B to be put into a different class, but this is not something the Council could direct.
  27. The Council said Officer M worked to influence the school’s decision at Mr X’s request. It said ultimately, the school changed its mind and Officer M was partly responsible for this.
  28. The Council said that Officer M had not encouraged the school to ignore medical advice. It said Officer M acted as a mediator between Mr X and the school. It said the emails between Officer M and the school showed Officer M was trying to help Mr X.
  29. The Council said it was appropriate for it to investigate the potential data breach before investigating his complaint. This was because his complaint would be handled differently depending on the outcome of the data breach enquiry. It referred to its complaints policy which said more appropriate procedures must be used instead of the complaints procedure for data protection matters.
  30. The Council accepted that its stage two response was sent two working days outside its timeframe. It apologised for this.
  31. The Council accepted there had been delays in responding to Mr X’s complaint at stage three. It said this was due to being short staffed. It apologised for the delay and the frustration this caused.

Analysis

Failure to provide education

  1. Mr X complains that the Council failed to provide his son with full-time education for four months (part a of the complaint).
  2. I find that the decision about how to get B back into full-time education, with adaptations suggested by medical professionals, was the school’s decision to make, not the Council’s. Because it was the school’s decision to make, I cannot investigate this.
  3. Officer M worked with the school to address the root cause of the disagreement and get B back into school full-time. I do not find fault with the Council for this.
  4. A council’s duty to provide education under section 19 of the Education Act 1996 comes into effect when a child is too unwell to attend school and therefore needs alternative educational provision.
  5. In this case, the medical advice was that B may be well enough to attend school full-time as long as adaptations were made.
  6. I do not consider that the Council’s duty to provide education was triggered because B had a full-time school place available, and he made it clear that he wanted to return to school, which was supported by Mr X. The medical advice said B may be able to return to school full-time with adaptations, which were the school’s responsibility to make. The Council worked with the school to address this, which got the outcome that everyone wanted, which was B’s return to full-time education.
  7. Further to this, the Council’s duty under the statutory guidance is that it should provide education “as soon as it is clear” that B would be away from school for 15 days or more.
  8. It is my view that this duty was not triggered because it was not clear that B would be away from school for 15 or more days. It is my view that this was not clear because B could have returned to school full-time at any point, as soon as the school made the adaptations.
  9. It is for these reasons that I do not find fault with the Council.

Medical advice

  1. Mr X complains that the Council ignored medical advice and did not consult with medical professionals (part b of the complaint).
  2. The Council says that because of receiving the medical advice, it arranged the meeting with the school to look at how to get B back into full-time education. After this, the matter was ultimately resolved.
  3. I find that the Council did not ignore the medical advice. The school was the primary body that should consider the medical evidence. The Council received the medical advice and took action because of it. For this reason, I do not find fault with the Council.
  4. As the school was the first port of call for medical information about school attendance, I do not find the Council at fault for not consulting with medical professionals. The duty to do this is only when a council’s duty to educate under section 19 of the Act, referred to above, is triggered.
  5. The Council had no obligation to consult with medical professionals. For this reason, I do not find the Council at fault.
  6. Mr X says he saw an email from Officer M telling the school what it was reasonable to say.
  7. I have seen the email Mr X refers to. This is an email from Officer M to the school which says the school can take account of the doctor’s notes, but it did not need to accept their recommendations.
  8. I do not find fault with the Council for saying this. The Council is not wrong to say the school is not bound by a medical professional’s recommendations. The school pays for advice from the Council, which is standard practice. The school got advice from the Council. This is not fault.

Consideration of B’s circumstances

  1. Mr X complains that the Council did not consider his son’s specific circumstances (part c of the complaint).
  2. This case is, presumably, quite unusual in that B attended school part-time but may have been (and in fact was) able to attend full-time if adaptations were made by the school. I find that the Council considered the specific nature of B’s circumstances and took unusual action to try and help resolve the situation.
  3. I also find that the Council took account of B’s wishes, which were that he wanted to be at school full-time.
  4. For these reasons, I do not find fault with the Council.
  5. Mr X complains that the Council should have stepped in and provided more education for B while he was attending part-time. I have answered this in part a of the complaint. I do not find the Council at fault.

Complaint handling

  1. Mr X complains that there were delays in dealing with his complaint (part d of the complaint).
  2. Mr X’s complaint had various different aspects, some of which were about a potential data breach. The Council delayed dealing with the rest of Mr X’s complaint while it addressed this potential data breach.
  3. The Council told Mr X it was doing this. It said once it knew the outcome of this, it could address the rest of his complaint.
  4. This is in line with the Council’s policy, which says sometimes there is a different, more appropriate procedure which must be used instead. The policy specifically states that an example of this would be a complaint about data protection.
  5. I find that the Council acted in line with its policy when it delayed dealing with Mr X’s complaint to specifically investigate the potential data breach. For this reason, I do not find fault with the Council.
  6. The Council accepted in its stage three response that the stage two response was sent two working days outside its timeframes set out in its policy.
  7. I do not consider that a delay of two days is significant enough to constitute fault.
  8. The Council, in its stage three response, accepted that there were delays in progressing from stage two to stage three. It also accepted there were delays in sending its stage three response.
  9. The Council said this happened because it was short staffed.
  10. I find fault with the Council for these delays in dealing with Mr X’s complaint. I find this fault caused Mr X injustice.
  11. The Council apologised for the delays and the frustration this caused. I am satisfied that this apology is a suitable remedy for the injustice (the frustration) caused by the fault.
  12. In addition to this, the Council says it has now filled the vacant posts and is no longer short staffed. I find that this is a suitable service improvement to avoid a possible future recurrence.

Back to top

Final decision

  1. I have completed my investigation and I do not uphold parts a, b or c of Mr X’s complaint. This is because I have found no evidence of fault.
  2. I uphold part d of Mr X’s complaint because I have found evidence of fault which caused Mr X injustice. I am satisfied that the actions the Council has taken are a suitable remedy for the injustice caused by the fault.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings