The Ombudsman's final decision:
Summary: Mrs X says the Council failed to arrange alternative education for her son when he was absent from school for medical reasons in the autumn of 2018 and between April and September 2019. There was fault by the Council because it did not properly consider its duties to provide alternative education. The Council agreed to address the injustice to Mrs X and her son through a financial remedy.
- Mrs X says the Council failed to arrange alternative education for her son when he was absent from school for medical reasons in the autumn of 2018 and between April and September 2019.
- Mrs X also says:
- The Council has a flawed policy of providing guidance to head teachers on recording mental illness absence as authorised illness
- The Primary Behaviour service advised her son’s school to change his absence from school from authorised to unauthorised.
- The Inclusion team ignored her email asking for help to keep her son in education in October 2018.
- There was a lack of support for the reintegration plan in October 2018.
- The Council did not send a reply to her stage two complaint until a week after the letter was dated.
- The Council did not send a reply to her stage three complaint within its published timescale.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- 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)
How I considered this complaint
- I reviewed the complaint and information provided by Mrs X and the Council. I discussed matters with Mrs X by telephone. I considered the extent of the Ombudsman’s jurisdiction.
- I sent a draft version of this statement to the Council and Mrs X and considered the comments I received in response.
- 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.
What I found
Law and statutory guidance
- The Education Act 1996 (Section 19) provides the basis for statutory guidance. This states that education authorities 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.
- The only exception to this is under subsection 3AA of the 1996 Act, where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
- There is also statutory guidance. Ensuring a good education for children who cannot attend school because of health needs states 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. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It also states that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.
- Guidance in Supporting pupils with medical conditions at school states local authorities should liaise with appropriate medical professionals to ensure minimal delay in arranging alternative provision for a child.
Council’s policy on education of children with medical needs as of October 2018
- The Council’s policy mirrored section 19 of the Education Act. It said schools should refer the case to its Education Inclusion Service when it is clear pupils will be away from school for more than 15 days. The policy said parents must provide medical evidence to the school which confirms why the child cannot attend school. The referrals should normally be supported by information from medical professionals including GPs or consultant child psychiatrists.
- Mrs X contacted the manager of the Council’s Inclusion Support Service on 24 September 2018. She asked for help with her son’s mental health and said his needs were not being met at his school. The manager referred the case to the area manager of the Primary Behaviour Service and let Mrs X know on the following day.
- From 2 October 2018, Mrs X’s son did not attend school for a continuous 12-day period. Mrs X says his anxieties meant he refused to go to school. The school initially recorded his absence as authorised.
- Mrs X met with the headteacher and her son’s teacher on 10 October to agree a reintegration plan. The plan was for her son to return to school on the following day on a part-time basis. However, Mrs X held back her son because of his continued anxieties.
- From the 13th day, the school recorded his absence as unauthorised. The Headteacher of the school sought advice from the Council’s Inclusion team. The advice contributed to the Headteacher’s decision to record the absence as unauthorised.
- The school’s reason for recording unauthorised absence was that Mrs X had not provided any medical evidence to show her son was unable to attend school because of an illness. Mrs X provided letters from her son’s GP as well as the child and adolescent mental health services explaining why they could not provide supporting information to the school.
- Mrs X asked the Council to assess her son for an Education, Health and Care Plan (EHCP). However, the Council initially decided not to assess her son. The decision was made on 18 October 2018. The Council then changed its mind and agreed to assess a week later.
- Mrs X made an application for a new school for her son in mid-November 2018.
- Mrs X’s son was seen by an educational psychologist as part of the EHCP assessment in November 2018. Mrs X’s son was diagnosed with autism in the same month.
- Mrs X’s son started at the new school on 10 December 2018.
- The Council provided the final EHCP to Mrs X in February 2019. Mrs X appealed about the contents of the plan in March 2019.
The Council failed to arrange alternative education for her son when he was absent from school for medical reasons in the autumn of 2018 and between April and September 2019
- The actions of the school are outside the Ombudsman’s jurisdiction. It is not for this service to consider whether the school was right or wrong to reach the judgement that Mrs X’s son’s absence from school was unauthorised because there was no available medical evidence to demonstrate his illness. In so far as the Ombudsman can look at this matter, it is to examine whether the Council properly considered the matter of alternative provision when it was aware of the number of days of continuous absence.
- From 18 October 2018 it was clear Mrs X’s son was on track to meet or exceed the 15 days of absence that should trigger the Council’s consideration of whether to make alternative provision for the education of Mrs X’s son. It is evident the school did not have the medical evidence to make a referral to the Council on the grounds of Mrs X’s son’s medical needs as set out by the Council’s policy.
- The Council was aware of the school’s attempts to reintegrate Mrs X’s son back into school from 10 October 2018.
- There is no evidence the Council considered whether alternative provision should be made for Mrs X’s son given the likelihood he would be absent from school for 15 or more days. Being aware of the reintegration plan, it appears officers were content to let the school deal with the matter rather than examine the reasons why Mrs X could not provide the medical evidence set out in the referral policy.
- Government guidance in ‘Supporting pupils at school with medical conditions’ makes clear local authorities should liaise with appropriate medical professionals to ensure minimal delay in arranging alternative provision for the child. This was not done in this case. I find fault by the Council. It failed to consider whether its duties to provide alternative education were engaged, despite the submissions made by Mrs X that her son was medically unfit to attend school.
- And the injustice? There was a loss of educational provision for Mrs X’s son between 18 October 2018 and 10 December 2018. But there is not enough evidence to say, on the balance of probabilities, that the Council would have found it necessary to intervene to ensure Mrs X’s son received alternative provision in that period. This is because there was a reintegration plan in place at the school and the Council could have decided the provision there was suitable for Mrs X’s son until he could attend the school fulltime.
- Nonetheless, Mrs X’s son faced uncertainty about his education which could have been resolved earlier by the Council. The Council failed to take the necessary steps to explore whether there were medical reasons for the non-attendance, as Mrs X claimed. Nor did it consider whehter there were grounds to arrange alternative education on the basis of Mrs X’s son being ‘otherwise’ unable to attend school.
- The Ombudsman’s guidance on remedies recommends a payment in acknowledgement of lost education of £200-600 per month. Given the circumstances of this case, I consider an appropriate figure for the uncertainty to be £600 for the period between 18 October and 10 December 2018.
- I cannot consider Mrs X’s son’s absence from school between April and September 2019 and whether the Council should have arranged alternative provision for him during this period. This is because Mrs X exercised a right of appeal against the EHCP in March 2019. Where the period out of education coincides with an appeal against the content of the EHCP, the period from the date the right of appeal is engaged until the appeal is heard is usually outside the Ombudsman’s jurisdiction and we cannot find fault. The appeal is usually an alternative remedy via the SEND Tribunal, even though the Tribunal has no power to provide a remedy for the lost education.
The Council has a flawed policy of providing guidance to head teachers on recording mental illness absence as authorised illness
- In responding to Mrs X’s complaint on this point, the Council said its policy was in accordance with the law and government guidance. But it agreed to review its policy to ensure the criteria for what counts as medical evidence is not restrictive. So it will now accept prescriptions and appointment cares rather than just doctor’s notes.
- I find the Council’s approach was appropriate and proportionate. But in any event, the Ombudsman cannot look at a complaint about the operation of the policy, as decisions by headteachers fall outside our jurisdiction.
The Primary Behaviour service advised her son’s school to change his absence from school from authorised to unauthorised
- This matter is outside the Ombudsman’s jurisdiction. Although the Council provided advice to the school, this was a secondary action following on from the school’s own primary duty.
The Inclusion team ignored her email asking for help to keep her son in education in October 2018
- To a certain extent this is already covered in paragraphs 23 to 29 on alternative provision.
- When the Council responded to the complaint it addressed the matter by focusing on the fact the manager of the inclusion service passed the email from Mrs X to the Primary Behaviour Service but did not let Mrs X know he had done so. The Council apologised for the lack of courtesy. I find this was the appropriate remedy for the failing.
There was a lack of support for the reintegration plan in October 2018
- This matter comes down to whether the Council’s officers in the Primary Behaviour Service or the Inclusion Service should have intervened to support Mrs X in her view that the school do more to meet the needs of her son. That was a subjective judgement for officers to make. The Council considered the reintegration plan by the school was sufficiently robust. Mrs X, on the other hand, says she conceived the plan with no input from any service. But the plan was accepted by the Council’s officers regardless of its origin.
- While I recognise Mrs X disagrees with this I have not seen any evidence that the Council’s decision was affected by administrative fault. The Council took account of all the evidence and reached a legitimate decision the reintegration plan was sound. Because of this, I cannot question the professional judgment of the officers involved.
The Council did not send a reply to her stage two complaint until a week after the letter was dated & The Council did not send a reply to her stage three complaint within its published timescale
- These were failings in the Council’s handling of the complaint. I note the Council apologised for the delay in completing the stage three complaint.
- The Council agreed to pay £600 Mrs X’s son for the uncertainty surrounding provision for his education in the autumn of 2018.
- The Council also agreed to pay Mrs X £100 for her time and trouble in pursuing the complaint.
- There was fault by the Council which caused Mrs X and her son an injustice. The Council agreed to remedy the injustice and so I have closed the complaint.
Investigator's decision on behalf of the Ombudsman