Herefordshire Council (19 015 607)

Category : Education > Alternative provision

Decision : Not upheld

Decision date : 24 Sep 2020

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to provide alternative education for her daughter after she became unable to attend school because of severe anxiety. The Ombudsman does not find fault with the actions of the Council.

The complaint

  1. Mrs X complained the Council failed to provide alternative education for her daughter (Y) after she became unable to attend school because of severe anxiety in July 2019.
  2. Mrs X says Y has missed education. Mrs X says this has also affected her daughter’s health through stress.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, 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)
  2. We 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)
  4. 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.

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How I considered this complaint

  1. I have considered the information Mrs X provided and discussed this complaint with her. I have asked the Council questions and considered its response.
  2. Mrs X and the Council had the opportunity to comment on my draft decision. Mrs X did not respond.

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What I found

Alternative provision of education

  1. Under section 19 of the Education Act 1996, councils are responsible for arranging suitable education for pupils who – because of illness, exclusion or other reasons – would not receive suitable education without such arrangements being made.
  2. The case of (R (R) v Kent County Council [2007] EWHC 2135 (Admin)) outlined that the duty of a Council under Section 19 for the term “other reasons” should be determined by “whether the education offered is reasonably possible or reasonably practicable to be accessed by the child”. If it is reasonably possible or practicable for a child to access education through a school, then the Council has no duty under Section 19.
  3. The Ombudsman issued a focus report in September 2011 amended in June 2016, “Out of sight…. 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 for Local Authorities, including they:
    • 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;
    • put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Truancy

  1. School Attendance Guidance says schools should authorise absences due to illnesses unless they have genuine cause for concern about the veracity of an illness. If the authenticity of the illness is in doubt schools can request parents to provide medical evidence to support illness. Schools can mark the absence as unauthorised if they are not satisfied of the authenticity of the illness. Medical evidence can include appointment cards and prescriptions rather than doctors’ notes.
  2. Councils do not have to provide alternative education in cases of truancy as the child has a place at school and should be attending. Schools and councils can use various legal powers if a child is missing school without good reason including prosecution or issuing a fine.

The Council’s policy

  1. This confirms the Council has the overall responsibility for education of children health and medical needs who cannot attend school for 15 or more school days.
  2. The Council requires a referral from a Paediatric Consultant or a Consultant from Children and Adolescent Mental Health Service (CAMHs) before it will arrange alternative provision. The Council will accept a referral made in writing. The Council provides education for these children through its H3 (Hub, Home, Hospital) Teaching Team.
  3. The policy states the Council will discuss any educational provision with parents or carers first.

Background

  1. Y’s GP referred her to the Child and Adolescent Mental Health Services (CAMHS) in October 2018 for an Autism assessment and anxiety.
  2. In January 2019 CAMHS diagnosed Y with anxiety. CAMHS advised Mrs X to refer this matter back to it once the Child Development Centre had completed the Autistic Spectrum Condition (ASC) assessment. In May 2019, the Child Development Centre diagnosed Y with ASC.

What Happened

  1. In July 2019, Y stopped attending school. Y’s school arranged to meet with Mrs X to discuss Y’s attendance. Mrs X cancelled the meeting and did not arrange a further meeting before the end of term.
  2. At the same time, the school contacted Y’s GP about Y’s absence. Y’s GP referred Y back to CAMHS. In her letter to CAMHS, Y’s GP said the school had not received any confirmation of illness from CAMHS and suggested CAMHS should consider authorising two weeks of absence for Y.
  3. There is no evidence that CAMHS accepted the referral or contacted Y’s school. The school recorded Y’s absence as unauthorised.
  4. Y’s school tried to arrange a meeting with Mrs X in September 2019 and asked for medical evidence to support Y’s absence. Mrs X did not provide this evidence. She did not attend two agreed meetings or respond to three further requests for meetings from the school. The school asked the Council for advice on 29 September 2019 about Y’s unauthorised absence. The Council advised the school to follow up with Y and arrange a home meeting.
  5. On 2 October 2019, the school referred Y to the Council’s educational psychology service for advice and support in reintegrating Y back into school. The same day, the school spoke to Mrs X she said that CAMHS had rejected Y’s referral and that Y’s GP did not feel able to sign her off school. The school referred Y to the Council over the unauthorised absence for enforcement action.
  6. Y’s GP re-referred her to CAMHS in October 2019. Y’s GP told CAMHS she could not say Y was medically unable to attend school, but Mrs X was adamant that Y could not attend.
  7. During October, the Council’s educational psychologist offered three appointments to Mrs X to discuss Y’s absence. Mrs X did not respond to two offers and cancelled the only agreed appointment on the date of the appointment.
  8. On 12 November 2019, the educational psychologist referred Y back to the Council because of the lack of engagement. The Council allocated the school’s educational welfare officer to follow up on Y’s unauthorised absence.
  9. Mrs X spoke with the educational psychologist over the phone. The educational psychologist advised Mrs X about outreach support through the Council for children with ASC and explained her role in supporting Y’s return to school. Mrs X said she was waiting on CAMHS assessment and would consider applying for an EHC Plan on the back of this. Mrs X turned down the offer of outreach support. The educational psychologist had no further involvement with Y or Mrs X.
  10. Mrs X complained to the Council on 19 November 2019 about the lack of alternative provision of education.
  11. In the Council’s response to Mrs X’ complaint, it said:
    • The educational psychologist had spoken with Mrs X to support Y’s return to school and explained how the Council would help Y.
    • The Council would only have a duty to provider alternative education if Y had been excluded or Y’s health needs were preventing her from attending school.
    • The school had recorded Y’s attendance as unauthorised and Y’s GP had not signed her off as being too unwell to attend school.
    • Without a relevant health professional referral, the school’s attendance policy applied.
    • As there was no evidence Y was medically unable to attend school, the Council had arranged for the school’s Education Welfare Officer to follow up on Y’s unauthorised absence.
    • The complaint did not relate to services run by the Council and directed Mrs X back to the school.
  12. On 11 December 2019, the school’s Education Welfare Officer met with Mrs X over Y’s unauthorised absence from school. The Officer referred Y to the Council’s Special Educational Needs service. The Council decided not to continue with prosecution for Y’s unauthorised absence. Mrs X complained to the Local Government Ombudsman.

My Findings

  1. I cannot consider the role of the School as schools do not fall within our jurisdiction. This investigation only considered the role of the Council.
  2. Under section 19 of the Education Act 1996, councils are responsible for arranging suitable education for pupils who – because of illness, exclusion or other reasons – would not receive suitable education without such arrangements being made. The Council does not have to make alternative provision, if the absence from school is unauthorised.
  3. Y stopped attending school at the start of September 2019. Mrs X did not provide any medical evidence to say that Y was to unwell to attend. The school told the Council about Y’s absence in September 2019. However, the school was seeking advice about how to manage the unauthorised absence as truancy. The Council advised the Council correctly about the next steps. This was not fault by the Council.
  4. The school referred Y to the Council’s educational psychologist on 2 October 2019. While the school still recorded Y’s absence as unauthorised, I consider this was when the Council became aware of Y missing school due to health needs rather than truancy.
  5. The Council discussed Y with the school and tried to contact Mrs X to arrange a meeting with its educational psychologist. It decided to temporarily stop enforcement action for Y’s absence. The educational psychologist offered Mrs X three appointments. Mrs X failed to respond to two offers and cancelled an agreed appointment. The educational psychologist also offered outreach support for Y that Mrs X refused.
  6. In the absence of any medical evidence, the educational psychologist would have been unable to advise the Council on the most suitable type of educational provision for Y. Therefore, I consider the Council acted in Y’s best interests and tried to engage with Mrs X to identify the most appropriate support for Y when she became unable to attend school. The Council was not at fault.
  7. As Mrs X would not engage with the educational psychologist, the Council decided to refer the matter to its Education Welfare Officer to consider whether to enforce attendance. The Council was not at fault in making that decision.

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Final decision

  1. I have completed my investigation as there was no fault in the Council’s decision not to put in place alternative education for Y and no injustice to Mrs X.

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Investigator's decision on behalf of the Ombudsman

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