Essex County Council (19 004 786)

Category : Education > Alternative provision

Decision : Not upheld

Decision date : 11 Jun 2020

The Ombudsman's final decision:

Summary: Ms X complains about the way the Council dealt with a request to provide her child with alternative educational provision. The Ombudsman has found no evidence of fault in the way the Council considered these matters and so has completed his investigation.

The complaint

  1. The complainant whom I shall refer to as Ms X complains the Council failed to provide her child Z, with alternative educational provision from December 2018 to July 2019 when Z was unable to attend school due to anxiety.
  2. Ms X says the Council’s policy failed to comply with legislation as it had a duty to provide Z with alternative provision after the child was absent from school for 15 days. But instead wrongly told her and the school to provide medical evidence before it would provide any alternative provision. As there are long waiting times for referrals to get the medical evidence required Ms X considers the Council has unfairly penalised Z due to this.
  3. Ms X says the Council has reviewed and rewritten its policy in line with relevant legislation to offer alternative provision without medical evidence and is now helping Z. But as Z has been without education since December 2018 the child is now behind academically. This has caused distress to Z and the family.

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What I have investigated

  1. I have considered the actions of the Council but not that of the school. The final section of this statement contains my reasons for not investigating any concerns Ms X may have about the school, possible penalty notices for Z’s non-attendance and her more recent complaints about the reintegration and educational package provided by the Council.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  2. The Ombudsman 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)

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How I considered this complaint

  1. The case has been reallocated to me to consider. The previous Investigator spoke to Ms X about her complaint. I have considered the notes of the telephone call and considered the information sent by Ms X and the Council’s response to our enquiries. I have also spoken to two council officers by telephone about the complaint.
  2. Ms X and the Council and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

School Attendance

  1. The Education Act 1996, Section 444(1) provides that, if a child is of compulsory school age, and fails to attend regularly, those with parental responsibility are guilty of an offence. Section 444(1A) creates the aggravated offence; if the parents know the child is not attending regularly and fails to ensure he/she does so. If a school has not been able to ensure a child’s attendance, the matter is normally referred to the local education authority, (the council). If the council prosecutes, parents/carers can be fined up to £1000 and the council can also seek its costs.

Alternative education

  1. Under section 19 of the Education Act 1996, councils are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made. If medical evidence is not quickly available, the statutory guidance states councils “should consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
  2. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend”. It also states: “there will be a wide range of circumstances where a child had a health need but will receive suitable education that meets their needs without the intervention of the local authority”. This includes where a school has arranged to deliver suitable education outside of the school.

Case law regarding section 19 alternative educational provision

  1. In G v Westminster City Council [2004] EWCA Civ 45 (followed more recently in DS v Wolverhampton City Council [2017] EWHC 1660), the Court of Appeal stated:

“It seems to us that ‘otherwise’, where used for the second time in s19, is intended to cover any situation in which it is not reasonably possible for a child to take advantage of any existing suitable schooling. This conclusion is supported by the ‘eisudem generis’ canon of construction, which is no more than an approach which gives a word the natural meaning that it bears having regard to its context.

  1. So, if the Council has arranged for the provision of education which is suitable for a child and which it is reasonably practicable for the child to enjoy, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
  2. In R (R) v Kent County Council [2007] EWHC 2135 (Admin) the Court stated that, “..the question is not whether the parents or [the child] have reasonable objections to attending the school, the focus of the court’s attention is not upon the parental objections or the child’s objections, but upon the objective consideration of whether the education offered is reasonably possible or reasonably practicable to be accessed by the child in question…”.

The Council’s policy for alternative educational provision

  1. The Council’s policy for the Alternative Education Commissioning service for children unable to attend school due to health needs in place at the time of Ms X’s complaint was dated 2017. It says that most children’s educational needs are best met in school, but some children at specific times may need education in an alternative venue or at home.
  2. The Council expects schools to make referrals for pupils unable to attend school due to health reasons where it is clear the child will be away from school for 15 days or more whether consecutive or cumulative. Schools must send the form with medical evidence confirming why the pupil is unable to attend and for how long. The medical evidence needs to confirm the reason why the pupil cannot attend. The policy says for pupils with mental health issues there is an expectation for the Emotional Wellbeing and Mental Health Service (EWMHS) to provide evidence. The Council decides whether the referral meets the criteria for support to be provided.

What happened

  1. Ms X and Mr Y are parents to Z who was eight years old at the time. In early December 2018 Z started refusing to go to school due to anxiety. The school had banned Ms X from its premises after an incident. Subsequently Mr Y was also banned, and the school only allowed them to communicate by email.
  2. Ms X sought medical advice from her GP in November 2018 about Z and the GP advised her to make a self-referral to the EWMHS. The GP wrote a letter saying Z was unhappy at school and having anxiety attacks. Ms X made the self-referral for Z.

Medical referral

  1. The Council officers confirmed it would be the responsibility of the parents to ensure Z attended school. It would then be for the school to deal with the matter and follow set procedures laid down by the Council for any support. The school recorded Z ‘s non-attendance as unauthorised absences. It made a medical referral to the Council’s Education Access Team for Z in January 2019 after the child was absent for more than 15 days. The school explained in the referral the actions taken to encourage Z to attend school, the information from Z’s GP and said it was still waiting for medical confirmation of Z’s anxiety.
  2. The Council did not consider Z’s case met the medical criteria to provide alternative provision away from school due to the lack of medical evidence. So, in February 2019 the Council arranged for the Complex Case Forum (CCF) to consider the referral. The forum is a panel of Education Attendance Specialists. The Council says the purpose of the panel is to provide a broad and balanced view on referrals that do not immediately appear to meet the threshold for support on medical grounds.
  3. The CCF considered the referral and said the medical evidence did not show Z could not attend school due to mental health reasons. Neither did the referral provide advice about Z’s current medical needs or what adjustments were needed to support the child’s access to education. The school stated it was seeking advice from an Educational Psychologist on how to best support Z in school and waiting for Ms X to provide more information to allow this to start.
  4. The Council told the school the outcome of the CCF hearing on 5 March 2019. It said there was insufficient information to support the referral on medical grounds and provide X with alternative educational provision. The Council told the school to submit a fresh application if it had more evidence the school could no longer provide Z’s education. If so, the Council could reconsider the matter. The Council sent a medical referral policy document to the school. The school did not submit a fresh application.
  5. The CCF notes say the matter ‘needs to be referred to the school improvement service as it’s an school issue’. The officers confirmed this meant that as the medical referral was insufficient the Council considered it was the school’s responsibility to continue to provide education to Z and make any reasonable adjustments necessary to support Z. The Council offered support to the school through the school improvement service as it was aware of the difficult relationship between the school and parents.

Reintegration Action by the school

  1. In March 2019, the school put a reintegration package in place for Z. Ms X and Mr Y’s relationship with the school deteriorated further and they made complaints to the school about its actions and the reintegration measures.
  2. The school wrote to Ms X and Mr Y in March 2019 about Z’s unauthorised absences and said despite communicating with Ms X and Mr Y and working with other professionals the reintegration had been unsuccessful. The school considered it had exhausted all avenues of support to reintegrate Z. So, to protect Z’s education and as the child had not returned to school, it intended to ask the Council to help by making a referral to the Attendance Compliance team. It said the Council may decide to issue a penalty notice or start court proceedings against Ms X and Mr Y from the referral for failing to ensure Z’s regular attendance at school.
  3. Ms X and Mr Y complained to the Council in April 2019 asking for alternative educational provision for Z as the headteacher advised the school had exhausted all avenues of support to reintegrate Z.

Team Around the Family meeting (TAF)

  1. In May 2019, the Council responded to Ms X and Mr Y’s complaint explaining the school’s referral had not provided evidence to show Z had a medical need for alternative educational provision. The school advised it was seeking advice on how best to support Z so the child could continue receiving education at school. The Council told the school to refer again if the advice they received did not help Z to access learning, but no further referral had been made.
  2. In commenting on the complaint, the Council says there was no medical evidence to suggest Z could not manage in school and the school had a duty to make a reasonable adjustment to support the child. The Council says Z has been receiving support and education in school since June 2019 and not in an alternative setting. So, the Council considers it is something the school could have commissioned through its own support networks in March 2019. However, in responding to Ms X and Mr Y’s complaint in May 2019 the Council expressed concerned Z was still not receiving an appropriate education and arranged a TAF meeting with the school.
  3. The main aim of the TAF meeting held in May 2019 was to get Z back to school and for the whole family to provide support where necessary. So, Ms X and the family were present.
  4. The officers confirmed the Council does not monitor whether a child is attending school or after a medical referral as it relies on schools to monitor attendance. And to send a fresh referral if there are any further issues. So, the Council says as soon as it became clear at the meeting Z was still not attending school, it agreed for Education Access to provide support under s19 through the reintegration teams. This was despite the lack of medical evidence as Z was unlikely to be seen by EWMHS until July 2019.
  5. One of the officers interviewed, present at the meeting, confirmed the Council decided to provide support and guidance as the situation between the family and school had not been resolved. This was impacting on Z and because of taking this action before any evidence from EWMHS the Council acted above and beyond the intention of its s19 duty.
  6. The TAF meeting acknowledged Z had missed a large portion of education. It was agreed the support team would provide mentoring and counselling for Z as well as support at school. It was also agreed to possibly provide minimal support during the summer holidays. The Education Access team agreed to commission the tutoring/mentoring type of education by June 2019.
  7. The meeting discussed Ms X’s ban from school grounds. The school agreed to take matter back to governors and it was acknowledged the situation was stressful for the parents and school.

Updated Council policy

  1. The Council advised at the TAF meeting it was rewriting its policy to offer alternative provision without medical evidence to support children such as Z in the future. The Council said it was not due to implement the policy until September 2019 but would apply it early in Z’s case.
  2. The Council’s updated policy adds a section on obtaining medical advice or guidance for pupils who are struggling to maintain regular school attendance. It says that whilst there is an expectation for a referral to be sent with appropriate medical evidence and guidance outlining the situation, the referral will not be delayed because a pupil is waiting for specialist support. The policy says the Education Access team will consider all available evidence and will where appropriate review the educational needs of the pupil with the school, parents and all other professional involved. If there is insufficient medical evidence to support a referral for a pupil who is unable to access school, the policy advises the school to seek advice from the appropriate team at the Council.
  3. The officers confirmed that even if the revised policy had been in place in January 2019 when the Council received the medical referral for Z, its actions would not have been any different. The Council considers that being at school is the best place for children to be to receive education and there needs to be a clear rationale to remove a child from school to provide alternative provision. In Z’s case the medical evidence was very minimal with nothing to suggest the child should not be at school. There was no advice or guidance from a medical professional that Z’s absence was related to mental health. In addition, the school was acting to provide support.

Council action to provide support

  1. The Council agreed an action plan of support for Z with CSS starting June 2019. The officers say Ms X was involved in the plan. The Council says the focus of CSS work is around building relationships with students to enable them to take the first steps towards reintegration. The tuition for Z started in June 2019 and continues with the Council reviewing progress every 6 weeks. The Council says Z started asking to go back into class in September 2019.
  2. The Council confirms the education offered to Z has been in line with the advice received from the professionals working with the child. Z has been attending school with support although not always for a full day. The officers confirmed the support is still ongoing.
  3. The documents provided by the Council show the relationship between the school and Ms X and Mr Y remained ‘fragile’ and not resolved despite the Council recommending mediation. Communication between parents and the school ceased following an official request by the school with CSS acting as liaison between the school and parents. The Council considers this an untenable situation and remains concerned it may continue to have a negative impact on Z’s anxieties and reintegration.
  4. A review report in December 2019 noted Z was managing until break time without support. While the support officer remained providing support this was being slowly withdrawn with Ms X hoping Z could return to classes. The report notes Ms X considered the team around Z had worked well to get Z back into school.

Unauthorised absences

  1. The Council says headteachers have full discretion about how to record the absences of its pupils and whether to use authorised or unauthorised absence codes. It is also at the headteacher’s discretion how the unauthorised absences are addressed and whether to apply any legal sanctions, such as the penalty notices for the unauthorised absences. If a headteacher wishes to apply for such sanctions they will make a referral to the Council to issue a penalty notice.
  2. Following discussions with the Attendance Compliance Team, the school did not to pursue a penalty notice against Ms X and Mr Y as suggested in its letter of March 2019.
  3. The Council says it did not receive any referral from the school regarding Z’s unauthorised absences during December 2018 to June 2019 requesting the Council to take legal action.

My assessment

  1. The Council has a duty to provide alternative educational provision for a child who is permanently excluded or because of illness or other reasons would not receive suitable education without such arrangements being made. As case law has established if a council has arranged for the provision of education which is suitable for the child and which is reasonably practicable for the child to enjoy, the Council would not be under a duty to provide alternative suitable education simply because, for one reason or another the child is not taking advantage of it.
  2. In this case the Council had arranged suitable educational provision for Z at the school the child was attending. It was the responsibility of Ms X and Mr Y as parents to ensure Z attended school. It was then for the school to look at any issue regarding Z’s non-attendance and to take action for unauthorised absences by asking the Council to issue a Penalty Notice. Or to make reasonable adjustments to help Z attend school. If Ms X and Mr Y have any concerns about Z’s absences and the actions of the school during December 2018 and January 2019 then they need to complain to the school. It is not an issue the Ombudsman can consider. The Council had no involvement then.
  3. When Z stopped attending school, the school followed set procedures and made a medical referral to the Council. The Ombudsman can look at the way the Council dealt with and considered the referral.
  4. The Council considered the referral did not provide enough evidence to show a medical reason why Z could not attend school. So, in effect it was satisfied there was suitable educational provision for Z and ‘reasonably practicable’ for the child to attend. And it was the school’s responsibility to make reasonable adjustments to provide this.
  5. I am aware that Ms X and Mr Y disagree with the Council’s decision. But I do not consider there are grounds for the Ombudsman to question the merits of the Council’s decision. This is because the documents show the Council and the CCF considered all the information provided when reaching a decision. So, there is no evidence of administrative fault.
  6. During March 2019, the school put a reintegration package in place for Z. It is unfortunate that this was unsuccessful and the relationship between the parents and school deteriorated. But if Ms X and Mr Y have any concerns about this then it is an issue for them to raise with the school as the Council was not involved in the provision.
  7. As Ms X has complained the Council’s 2017 policy in place at the time requires there to be medical evidence, while statutory guidance requires councils to consider children for whom there is no medical reason why they are not attending school and may be waiting for referrals such as to EWMHS. However, the Council confirmed the CFF’s role is to consider cases that do not meet the medical referral and so the panel has a wider look at the issues involved. From this I am satisfied the Council did fully consider Z’s case despite the lack of medical evidence and offered support to the school as a result. And so, the Council complied with statutory guidance even if its policy did not specifically mention this. I do not consider there are grounds for me to pursue this issue any further as the Council has updated its policy.
  8. The Council has also confirmed it would not have reached a different decision in Z’s case even if the policy had been updated at the time of the medical referral in January 2019. The issue of Z’s non–attendance would still have been referred to the school to deal with as the Council did not consider there was any reason why the child could not attend school. So, the outcome would have been the same.
  9. The Council later agreed to ‘step in’ and provide support despite the lack of medical evidence or otherwise as to why Z was unable to attend school. This is action beyond the Council’s s19 duty and the support remains on going for Z.

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Final decision

  1. I am completing my investigation. I have found no evidence of fault by the Council in the way it dealt with a request to provide alternative educational provision for her child.

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Parts of the complaint that I did not investigate

  1. I have not considered any action of the school including its decision to consider pursuing a penalty notice to Ms X for Z’s non -attendance in 2019. This is because as paragraph seven explains the Ombudsman is prohibited from looking at the internal arrangements within a school. Although a council issues a penalty notice, it does so via a referral from a school.
  2. I have not considered Ms X’s recent complaints about the reintegration and educational package for Z provided by the Council as Ms X complained about these matters after submitting her original complaint. And I have not seen any evidence Ms X has pursued these concerns with the Council first and completed its complaints procedure.

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Investigator's decision on behalf of the Ombudsman

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