Summary: Mrs X complains the Council failed to provide her daughter with suitable education for several months between September 2018 and September 2019. She says this had a negative impact on her daughter’s well-being and future opportunities. The Ombudsman has found the Council to be at fault because there was a delay in making alternative educational provision. There was further fault when the Council failed to take any action to address the later period of non-attendance due to ill health. To remedy the injustice caused, the Council has agreed to apologise, make a payment to Mrs X and review its procedures.

The complaint

1. Mrs X complained the Council failed to provide her daughter Y, with a suitable education between September and December 2018 and between March and September 2019.
2. Mrs X says this failure to educate Y at such an important stage in her life has had a significant impact on Y’s general well-being and future prospects. It has also impacted on Mrs X’s health while trying to resolve the matter.

Back to top

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)
6. 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.

Back to top

How I considered this complaint

7. As part of my investigation I have:

• considered the complaint and documents provided by Mrs X;
• made enquiries of the Council and considered its response;
• spoken to Mrs X; and
• sent my draft decision to both parties and invited comments on it.

8. I have also considered the relevant law and guidance including;

• The Education Act 1996, Section 19
• 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

9. I have considered guidance issued by the Ombudsman:

• Guidance on Remedies
• Focus Report ‘Out of School…Out of Mind?’

Back to top

What I found

The law and guidance

10. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
11. 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.
12. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
13. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says in considering alternative education local authorities should not:
• have processes or policies in place which prevent a child from getting the right type of provision and a good education; and
• have inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in).
14. We issued a Focus Report in September 2011 amended in June 2016, ‘Out of school….out of mind?’. This gives guidance for local authorities 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 based on examples of good practice seen. It said councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

How the Council supports children out of education

15. For children who cannot attend school because of illness or permanent exclusion the Council provides education through a service called the Cherry Tree Learning Centre (CTLC). Its policy emphasises the importance of reintegrating pupils back into school at the earliest opportunity.

Education Health and Care Plans

16. A child with special educational needs may have an Education Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. A parent, education provider or the young person (when aged over 16) can ask for an EHC needs assessment. Following that request, the Council has six weeks to decide if an assessment is necessary and tell the parents.

What happened

17. I have set out below a summary of the key events. But it is not meant to show everything that happened.
18. In September 2018, at the start of Year 10, Y was unable to attend school (“the School”) for medical reasons. The School was an Academy. Y had a number of medical conditions caused by a serious car accident in 2016. Her attendance at the School had fallen the previous term and she had been on a reduced timetable. Mrs X says she received little support from the School during this time.
19. Mrs X submitted a letter from Y’s GP stating she was not fit to attend school. In October 2018, the School made a referral to the Cherry Tree Learning Centre (“CTLC”). This was the Council’s service for providing education to children unable to attend school due to a medical condition. Mrs X says Y did not receive any meaningful support from the School during this autumn term.
20. From December 2018, CTLC provided home tuition for one hour per day. Mrs X says she was happy with the service that was being provided to Y by CTLC but she was disappointed the School still did not provide either support or appropriate homework.
21. In December 2018, a review meeting was held at the School. Mrs X provided another GP letter saying Y was not fit to attend school. The School said it needed a letter from Y’s hospital consultant to provide more up to date information. It was agreed the home tuition would continue until this was provided.
22. Around this time, Mrs X made a request to the Council for Y to be assessed for an EHCP. She had previosuly asked the School to agree to a referral, but it had refused.
23. A further review meeting took place in March 2019 at the School. Mrs X provided a letter from Y’s hospital consultant. The consultant said, “her main limiting factor is pain symptoms, which is a subjective description and impossible for me to quantify. Based on Y’s report of the severe symptoms, despite 3 analgesics, she is not able to attend mainstream school”.
24. Y also attended and provided the meeting with a written description of what a day at school felt like for her. She described her pain and lack of emotional and physical support.
25. CTLC provided a report that said, “There is currently no medical evidence to suggest this student has an illness that cannot be met by mainstream school”.
26. The School said it could provide for Y’s education in the form of a reduced timetable, making room changes as well as “providing support and customised intervention”. Mrs X expressed her reservations that that School would be able to deliver this based on her previous experience of work not being sent home and a general lack of support and understanding. She was also concerned about Y being behind her peers academically and her increasing social isolation.
27. The outcome of the review was that Y should return to the School. Her CTLC home tutoring was stopped.
28. Mrs X objected to this decision and complained to the Council. Y did not return to the School.
29. In May 2019, a senior Council officer met with Mrs X and Y to discuss the situation and Mrs X’s complaint. A draft EHCP was also issued by the Council.
30. In June 2019, the Council responded to her complaint. The Council accepted there has been a delay in arranging alternative provision between October and December 2018 for which an apology was given. However, the Council reviewed the available information about Y’s health and agreed with the School that Y was fit to attend with adjustments in place. The Council acknowledged there was a breakdown of trust between Mrs X, Y and the School and so agreed for an alternative school to be named in the draft EHCP.
31. Despite initially agreeing to find a different school, Mrs X changed her mind. Because of the amount of time Y had been out of school and the failure to make proper plans for her reintegration, she considered home based tuition to be more appropriate for Y. This was agreed by the Council in July 2019 and the draft EHCP was amended accordingly.
32. However, despite some progress being made about this, Y remained without any educational provision. So Mrs X complained again in July 2019. She specifically complained about the Council’s failure to comply with its duty to provide Y with a suitable education (Education Act 1996, section 19).
33. The Council replied in November 2019. The Council said the consultant’s letter from February 2019 was based on Y’s own subjective assessment of her own pain whereas the opinion of CTLC was based on close observation of Y during the period of home tuition. The Council did not uphold the complaint, so Mrs X brought the matter to the Ombudsman to investigate.

Analysis

34. 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. I understand Mrs X has complained separately to the School about its conduct in this matter.
35. 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. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.

Failure to provide education between September 2018 and December 2018

36. The Council has admitted it was at fault by not providing suitable alternative education to Y from October 2018 when the referral to CTLC was received but unable to offer a service straight away because of excessive demand. Because the Council has already accepted fault it is not necessary for me to investigate this aspect of the complaint further.
37. However, I must consider whether the remedy already offered by the Council (an apology) was sufficient to remedy the injustice caused. Where there has been a period of time where a child has been left without education, the Ombudsman’s Guidance on Remedies states a monetary payment should be made to acknowledge the impact in the child. In this case, I am satisfied the level of injustice, in terms of Y’s lost education for two months, requires such a payment to be made (paragraph 64 below).
38. I do not make a finding of fault against the Council for the period of Y’s non-attendance from September to October 2018 because the School was responsible for educational provision at that time.

Failure to provide education between March 2019 and September 2019

39. From the evidence I have seen, the Council became aware that Y was not attending school in March 2019 when Mrs X made her formal complaint. It is unclear whether the School had already notified the Council about her non attendance. The School was under a duty to inform the Council of any cases of prolonged absence and so should have done so under the Council’s Education Investigation Service Referral Mechanism.
40. Once it was aware of the absence, the Council met with Mrs X and Y to discuss the situation. However, this meeting did not take place until May 2019, two months after Mrs X had informed the Council about Y not attending the School. As Y had already missed well over 15 days, this meeting should have happened sooner, particularly as CTLC had already been involved. The Council accepted Y should move to a different school. In addition to this, the Council had undertaken the assessment of Y for an EHCP. By doing so the Council had accepted Y may have health and educational needs that required additional support.
41. But while this was being discussed and arranged, Y remained out of school and was effectively without an education for six months (less school holiday time).
42. Despite Mrs X specifically raising a complaint about the Council’s failure to fulfil its section 19 duty, the Council’s complaint responses focused on whether CTLC had reached the correct decision about whether Y was fit to return to school. In my view this was an overly restricted view of Mrs X’s complaint and was fault.
43. The Council’s stage 2 complaint response provides an insight into its rationale in this case. The second GP letter was effectively disregarded because “it precedes the end of the CTLC placement”. The consultant’s opinion that she was not able to attend mainstream school was disregarded, because it relied on Y’s own subjective assessment of her pain symptoms that were “impossible to quantify”. The investigating officer concluded that “‘a subjective description’ is not sufficient for me to judge that CTLC’s assessment was not valid”. This was because CTLC had worked closely with Y over a period of time and judged that she was ready to reintegrate back into mainstream. This view was supported by the School.
44. But the Council’s focus on whether CLTC assessment was correct or not, meant the Council did not address the main complaint specifically raised by Mrs X that the Council was in breach of its statutory section 19 duty owed to Y. I find this to be fault.
45. I must now consider whether it did breach this duty, as this was the main thrust of Mrs X’s complaint. This duty is for councils to arrange suitable, full time education for children who, because of illness or otherwise, would not receive suitable education. This must be provided “as soon as it is clear that the child will be away for 15 days or more”.
46. The Council says it did not provide education because:

• the medical evidence did not support what Y and Mrs X said about her being unfit to attend school; and
• the School said it had made suitable arrangements for her to attend and CTLC agreed she could return with an integration plan.

47. This rationale demonstrates a lack of understanding of the relevant legislation.
48. Firstly, there were three separate medical opinions that Y was not fit to attend school. I am concerned these were too readily disregarded and the Council failed to make any further enquiries of any medical professional about the current position in respect of Y. Mrs X made it clear the longer Y remained out of school the more anxious she had become about returning, particularly as she had missed so much schooling leading up to the point the Council became involved. Y’s physical diagnosis was also still unclear, and this was supported by the consultant in his letter when he suggested a further physiotherapy and psychology review may have been useful.
49. The Guidance states that a lack of medical evidence should not stop a child from accessing education and that councils should consider “other evidence” to prevent a delay in arranging educational provision. Mrs X provided the Council with detailed evidence that the School has failed to make any of the adjustments necessary to provide Y with the confidence to return.
50. In any case, section 19 also requires councils to make suitable educational arrangements for children who because of exclusion, illness or otherwise may not receive and education unless the Council arranges it for them (my emphasis). Even without definitive medical evidence, the Council had a duty to consider arranging education under the category of “otherwise”. Y, having been absent from school for such a long period of time and having missed so much work, combined with social isolation and a concerns about how her peers would react to her being in a wheelchair had contributed significantly to her anxiety about returning to school. There is no evidence the Council considered this “bigger picture”. Instead it took an overly restrictive view of her individual circumstances. Something the Guidance is clear that councils should not do.
51. Secondly, there is little evidence the Council did enough to satisfy itself the arrangements being made by the school were suitable. Mrs X made it clear to the Council in her initial complaint letter that she was not confident the School was able to provide the additional support and flexible approach that would be required for Y to be able to access mainstream education. She provided a number of examples including:

• Conflicting opinions about Y’s academic ability.
• The School’s failure to provide adequate and appropriate homework.
• Lack of input from the School’s Special Educational Needs Officer.
• Failure to provide a reintegration.

52. What I would expect to see is some proof the Council had satisfied itself that the School was able to provide the additional and flexible support that Y so clearly required. There is no such evidence. Neither the Council nor the School has been able to provide the Ombudsman with a copy of the reintegration plan, upon which her return to the School should have been based. Mrs X took the understandable position when she decided she would not allow Y to return without a detailed plan in place setting out when support would be available.
53. Nor have I seen evidence any work undertaken by the Council, as promised in its June complaint response “to continue to provide support to ensure Y is able to access an education provision via a mainstream school with the additional support she needs as identified in her EHCP”. This is because the responsible officer left the Council and no records were kept as to what, if anything had been done by that officer to progress the case. In its second complaint response, the Council said that, “there are appear to be no notes of any follow up activities and no case officer is aware of the actions he took”
54. This failure to be able to evidence what happened at this crucial time is fault.
55. A further point for consideration is that as the Council has taken the view that the educational arrangements made by the School were suitable, then I would have expected the Council to have taken steps to deal with her unauthorised absence from School via its Education Investigation Service. There are no records of any such action having been considered. Nor are there records about any involvement from the Council’s Education Welfare Service. Again, I would expect to see some evidence of this with Y being out of school for so long.
56. Taken as a whole, this failure to be able to evidence it took action to address, in any meaningful way for such a long time, Y’s non-attendance is fault.
57. I have also found there to be fault in the complaint handling because it took too long to respond to Mrs X’s complaint. The first response took approximately three months and the second response took approximately four months. In the context of a child missing education, this an excessive delay.

Impact on Y and Mrs X

58. A child’s GCSE years are a critical stage in education. Y was already at a disadvantage because of ill health and has now been further disadvantaged by not being able to access education for many months.
59. The Council’s approach contributed to a loss of opportunity to Y. Had it not been for the Council’s fault, Y could have received the alternative provision that she was ultimately deemed suitable for her. I am satisfied had this been available sooner it could have reduced the overall impact on Y’s educational opportunity and left Y in a stronger position to continue with her education and restore her lost confidence.
60. I am also satisfied Mrs X suffered an injustice as a result of the Council’s fault. It is clear from the evidence I have seen that it was a difficult task trying to get the support her daughter required. She encountered avoidable delay and was frustrated by the Council’s inflexible approach. She has explained this impacted on her own health and well-being whilst pregnant.
61. The injustice to both Mrs X and Y should be remedied.

Conclusion

62. The Ombudsman will usually recommend a payment of £1200 per term 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.
63. In reaching my decision about quantum, I have taken into consideration a number of factors:

• Y was at a crucial stage in her education and missed taking her GCSE’s.
• The Council’s failure to properly consider evidence provided by Mrs X and medical professionals.
• Y’s addition needs that were eventually recogised in her EHCP.
• The Council’s failure to keep a record of what action (if any) was taken by its SEN team to support Y.
• The Council’s failure to properly consider its statutory duty to a child who was unable to attend school.

Agreed action

64. The Council has agreed to take the following action within one month of this final decision:
• Apologise to Y and Mrs X for failing to ensure Y received suitable education between October and December 2018 and March and September 2019 (2.5 terms).
• Pay Mrs X £3000 to recognise this loss of educational opportunity for Y. The payment should be used for the benefit of Y’s education and to obtain support to make up for her lost educational opportunity.
• Pay Mrs X £250 to recognise her time and trouble in pursuing the complaint.
65. The Council has agreed to take the following action within three months of this final decision:
• Review the way it oversees services for children and young people out of school to ensure it discharges its responsibilities for alternative provision under section 19 of the Education Act 1996;
• Review the educational provision in place for children of compulsory school age who are on roll but have not attended school for more than 15 school days and where alternative provision is not being supplied, to ensure there is an assessment of their educational needs and how these are being met.

Back to top

Final decision

66. The Council was at fault for failing to arrange alternative for Y when she was unable to attend school for medical reasons. The Council has agreed a suitable remedy.

Back to top

Investigator's decision on behalf of the Ombudsman