Summary: Mr X complained about the Council’s provision of alternative education when his daughter was absent from school for medical reasons. The Council was at fault for delays in arranging alternative provision. However, the education provided by the Council was suitable. The content of the work provided by the school is outside of the Ombudsman’s jurisdiction.

The complaint

1. Mr X complained about the Council’s alternative provision of education when his daughter (D) was unable to attend school for medical reasons. He said the Council delayed putting alternative education in place. He also said his daughter was not provided a variety of work in line with work students attending school were given.

Back to top

The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. Any action concerning the curriculum in any school or educational establishment maintained by the authority is out of the Ombudsman’s jurisdiction. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)

Back to top

How I considered this complaint

4. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant, as well as the information we discussed in a telephone conversation.
• Documents provided by the Council and its comments in response to my enquiries.
• Education Act 1996 (Section 19).
• Department for Education: Ensuring a good education for children who cannot attend school because of health needs (January 2013).
• The Equality Act 2010.
5. I have write to Mr X and the Council with a draft of this decision and gave them an opportunity to comment.
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

What I found

7. The Council are responsible for providing suitable education for children of school age who cannot access education because of illness, exclusion or other reason (Education Act 1996, Section 19).
8. There is no legal deadline for the provision of education to start. However, it should be arranged as soon as it is clear a child will be absent from school for more than 15 days because of health reasons.
9. The provision should be in place by the sixth day of absence, or from the first day if the absence is planned. The education offered must be on par with that available in school. Full time education, while not defined, is thought to be between 22 and 25 hours per week. One to one education, which is intensive, need not be full time.
10. Government guidance confirms, if a child is going to be absent for a long time, the local council will ensure they get as normal an education as possible. This could include home teaching. The local council must make sure a child continues to get a full-time education, unless part time is better for their health needs. The local council should:
• Have a senior officer in charge of the arrangements and a written policy explaining its responsibilities.
• Make sure a child isn’t without access to education for more than 15 school days.
• Arrange education from the start of the child’s absence if it is clear they will be away from school for a long period.
11. According to the Council’s website, for longer term absences (15 days or more), it provides education through the Medical Needs Service. A medical needs referral is usually made by the school, with evidence from a health professional.
12. Following acceptance of a referral, the medical needs coordinator will:
• Contact Short Stay School for Norfolk, a service used to provide education for children unable to attend school because of health reasons.
• Ask for interim medical needs provision to start without delay.
• Arrange a planning meeting to decide how the education will be delivered.

Back to top

What happened

13. Mr X told me D had been signed off as medically unfit to attend school by their GP since September 2018.
14. D’s school contacted the Council asking for advice about a potential medical needs referral on 17 October 2018.
15. The Council received a medical needs referral for D from the school on 13 November 2018.
16. Medical evidence was sent to the Council on 19 November 2018. The Council sent a medical needs referral acceptance letter to the school on the same day. The Short Stay School for Norfolk (SSSfN) were to arrange a planning meeting.
17. The school told the Council it had safeguarding concerns about staff safety if home schooling was required. The school sought a meeting with the Council before the planning meeting to discuss the background to D’s case. This was initially arranged for 29 November 2018, but eventually took place on 7 December 2018.
18. Emails between the school, SSSfN and the Medical Needs Coordinator (MNC) between 7 and 8 January 2019 show the parties were waiting for each other to contact Mr X to discuss D’s needs. The MNC said it was normally for the school to do this, but had agreed to be involved due to the circumstances. The parties discussed alternatives such as a separate room at the school, or local building such as a library. The MNC tried to arrange a planning meeting between all parties. The school was unwilling to engage due to issues with Mr X.
19. Mr X declined the alternatives above because D was too anxious to leave the house at this point. This was supported by medical opinion from their GP. The school refused to engage with home learning due to continuing issues with Mr X and concerns about staff safety.
20. Mr X complained to the Council on 16 January 2019 about the delay in providing alternative education after D was signed off school and accepted on to the medical needs programme.
21. The Council and SSSfN carried out a home visit risk assessment on 24 January 2019. It extended the period of support for D due to the delays.
22. The Council decided D would receive home tuition for two hours a day. This was initially for two days a week and would then increase to three days. Medical needs home learning support started on 30 January 2019.
23. A review meeting took place with Mr X on 13 March 2019. The Council recorded Mr X as being ‘really happy with the service from home schooling’. ‘The only problem is there is no feedback from school and they’re still not very inclusive’.
24. Mr X emailed the Council on 14 March 2019, following the review. He said he was disappointed as he felt they were not aware of his daughter’s problems. He still felt she was denied things available to children at school. Mr X said there was no access to exercise books or online work. He also said no newsletters were sent home, which is not inclusive. Mr X felt this was not addressed in the review meeting. Mr X said work from school was inadequate and was mainly Maths and English. He said at the first meeting they discussed D getting a mix of subjects, like Art, and this has not been done.
25. A post review internal Council email dated 14 March 2019 states work provided by the school included Geography and Art.
26. The Council agreed to continue D’s medical needs support on 21 March 2019.
27. Mr X raised concerns with SSSfN about the lack of variety of work provided by the school on 15 March 2019.
28. Mr X emailed the Council on 29 April 2019 to ask if it had given the school a copy of the review. He asked if the school was aware of his concerns about lack of feedback on D’s work, lack of variety of work, and lack of textbooks. Mr X wanted more positive comments in marking feedback to build D’s confidence.
29. The Council emailed Mr X on 30 April 2019. It confirmed it provided feedback to the school and gave Mr X a copy of the school’s response. This included:
• Offering login details for the schools online learning programme.
• Confirming school newsletters go home with Mr X’s son.
• It will try to adapt the work, but it has been hard to gauge D’s learning, as the class teacher has not met her. It will aim to provide work to support grammar and punctuation.
• Year 6 pupils are preparing for SAT’s so learning has focused on this. After SAT’s, other topics, such as ‘the Vikings’, will start.
• Asking D’s tutor to give live feedback and the school can give feedback over time.
30. The Council wrote to Mr X on 2 May 2019 responding to his complaint. The Council apologised for the delays but said it raised his concerns with the relevant teams as soon as it received the complaint. It apologised for two missed planning meetings because of illness. It said it arranged a planning meeting on 24th January 2019, after receiving the further medical evidence on 3 December 2018. It apologised for this delay.
31. Mr X emailed the Council on 7 May 2019. He said they had been aware his daughter could not attend school since October (2018) but a meeting did not take place until January (2019) to start the home education. He said the school should have contacted the Council sooner and his daughter has been denied access to education.
32. The school sent emails to the Council on 8 and 9 May 2019. It said all pupils were focusing on SAT’s and it would send more subjects once SAT’s were completed.
33. The Council wrote to Mr X on 16 May 2019. It confirmed it missed four appointments in total and Mr X’s complaint about missed appointments was upheld. It could not say why the school had not made a referral to the Council sooner. The school contacted the medical needs service in October 2018, and it gave general advice on the referral process. It said it could not arrange home tuition until it received the referral. It said part of the delay was due to the need for continuing medical evidence, as the medical evidence expired 6 days after the referral. And part of the delay was due to the Christmas holidays. It accepted it took too long to arrange home learning and this complaint was upheld.
34. Mr X emailed the Council on 17 May 2019. He was happy his complaint was upheld and asked what happens next. He asked about service improvements.
35. The Council replied on 22 May 2019. It confirmed the complaints team feeds back results to the relevant department and recommends service improvements. It recommended the medical needs department reminded schools of the process when a pupil is absent due to ill health. It also asked the medical needs department to consider changes to working practices.
36. Mr X complained to the Council again on 4 June 2019. His complaint was about lack of opportunities and discrimination because his daughter did not get the same work as pupils in school. He said the school gave only Maths and English work, except for two topics and Geography on one occasion.
37. The Council replied on 10 June 2019. It confirmed it contacted the school. It said the school advised pupils had been concentrating on Maths and English for their SAT’s. The work D the school gave D was in line with her peers. The school planned to send work in line with the curriculum for the rest of the year, once SAT’s were complete. This will include Science and Arts.
38. Mr X sent a follow up email to the Council on 12 June 2019. He explained he raised the issue about lack of variety of work at the review stage, but the school did not send different work. He said the Council only considered information from the school when it looked at his complaint, not the evidence from the medical needs department.
39. The Council wrote to Mr X on 12 August 2019 to explain how it considered his complaint. It apologised for the delay. It said it also liaised with the medical needs service when it looked into his complaint. The Council signposted Mr X to the Ombudsman if he was still unhappy.
40. Mr X brought his complaint to the Ombudsman on 16 August 2019. He felt the school discriminated against his daughter and denied her the education she was entitled to.

Back to top

Response to my enquiries

41. The Council said there were delays because the school raised concerns about the safety of a lone worker in Mr X’s family home. There were also difficulties arranging a planning meeting at a time to suit everyone. This was impacted by the MNC working part time. The school presented barriers contacting Mr X and Mr X was unwilling to have sessions provided at the school.
42. The Council recognised 2.5 days per week was inadequate to fulfil the role of MNC. It has now re-designed the role to cover 4 days per week.
43. The Council told me the school mainly gave D Maths and English work when home tutoring began. The school also gave work on the Mayans and the Savannah. After May 2019 D’s work included Biology and Art. The Council followed up Mr X’s concerns. The school is responsible for setting work and agreed to provide other subjects following challenge from the Council.

Back to top

Analysis

44. The Council accepted it delayed arranging alternative provision for D. It blamed part of the delay on the need for medical evidence and the Christmas holidays. Statutory guidance says Council’s should minimise disruption to a child’s education and should consider looking at other evidence to ensure minimal delay. To prevent the delay, the Council could have considered evidence from D’s parents, from the school, and it could have liaised with D’s GP.
45. The evidence I have seen shows confusion between the SSSfN, the school and the medical needs department about who was taking the next steps to progress matters. That contributed to the delay.
46. Mr X was clear D needed home schooling. Their GP supported this. I appreciate the school resisted home schooling and were unhelpful, but the Council needed to be more proactive in arranging provision when the school would not help.
47. Having accepted the medical needs referral on 19 November 2018, the Council did not start alternative provision for D until 30 January 2019. That was fault. D suffered an injustice because she was without education for about eight academic weeks. This happened at an important developmental time in D’s education, as she was in school year 6 where SAT’s are taken, and she was preparing to go to secondary school.
48. There were also delays in the complaints process. The Council aims to acknowledge stage one complaints within 5 working days and provide a full response within a further 15 working days. At stage two the Council’s response time is 25 working days.
49. Mr X’s first complaint, about delay, was logged on 16 January 2019. The Council did not provide a full response until 2 May 2019. That was fault. There were also issues with the clarity of the complaint response. Mr X had to ask the Council to explain its decision. However, I do not consider this caused Mr X a significant injustice because the Council was engaged in arranging alternative provision for D at this time, and did so by 30 January 2019.
50. Mr X’s second complaint, about the work D was provided, was logged on 4 June 2019. The Council provided a full response on 10 June 2019. However, when Mr X challenged this on 12 June 2019 the Council did not reply until 12 August 2019. That was fault. I do not consider this caused Mr X a significant injustice because, although Mr X disagreed with the findings, the Council was in contact with the school about the work for D and did feedback Mr X’s concerns throughout the process.
51. Mr X is unhappy with the work the school provided D with. He wanted more variety, not so much Maths and English work. He also wanted the school to give more positive feedback and to give D exercise books and online learning access.
52. Mr X raised these issues at D’s review in March 2019. The evidence I have seen shows the Council communicated with the school about this. The school said students had been studying for SAT’s, and D was receiving work in line with her peers. The school said different topics would be sent in the next term.
53. Mr X is unhappy with this explanation because D did not sit her SAT’s exams, and he said the school was aware of this. The Council has a responsibility to ensure it provides a suitable education on par with that available in school. However, matters about the curriculum and how or what students are taught are outside of the Ombudsman’s jurisdiction. Unfortunately, I am therefore unable to offer any comment on the variety of work provided.
54. The Council provided one to one home tuition for D. Mr X confirmed he was happy with this at the review stage. Following the review, the Council fed back Mr X’s comments to the school. The school said D was receiving the same work as other students. I have not seen evidence to suggest the alternative provision the Council offered was unsuitable. Mr X’s complaint here is about the content of the work and with the actions of the school. These are areas outside of the Ombudsman’s jurisdiction.

Agreed action

55. Within four weeks of my final decision the Council will:
• Provide evidence it has reminded schools of the referral process when pupils are absent due to ill health or medical needs, highlighting the importance of a collaborative approach in the best interests of the child.
• Provide evidence of the changes to working practices considered by the Medical Needs Service.
• Apologise for the delays and pay Mr X £500 for D’s lost education resulting from the Council’s delay.

Back to top

Final decision

56. I have completed my investigation. The Council was at fault for delays in arranging alternate provision. However, the education provided by the Council was suitable. The content of the work provided by the school is outside of the Ombudsman’s jurisdiction.

Back to top

Investigator's decision on behalf of the Ombudsman