Summary: Mr X complained after the Council stopped providing alternative education for his daughter, D at home. He said D was not well enough to return to school for alternative provision and the Council’s decision left him with no choice but to electively home educate. The Council was at fault in how it ended D’s home tuition, however that fault did not cause D an injustice.

The complaint

1. Mr X complained after the Council stopped providing alternative education for his daughter, D at home. He said D was not well enough to return to school for alternative provision and the Council’s decision left him with no choice but to electively home educate.

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The Ombudsman’s role and powers

2. 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)
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

• I discussed the complaint with Mr X.
• I made enquiries of the Council and considered the evidence it provided including its case records and complaints response.
• I referred to the relevant law and statutory guidance.
• Mr X 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

Alternative education

5. Section 19 of the Education Act 1996 says that if a child of compulsory school age cannot attend school for reasons of illness, exclusion or “otherwise”, the local authority must make arrangements to provide a ‘suitable education’ either at school or elsewhere. This duty does not apply where suitable alternative arrangements are in place or where a child is electively home educated.
6. The statutory guidance Ensuring a good education for children who cannot attend school because of health needs 2013 sets out local authorities responsibilities in identifying and supporting pupils who cannot attend school because of health needs.
7. It states that councils should take into account the medical evidence received when considering if a child might be ready to return to school. When reintegration into school is anticipated, councils should work with the school and the home tuition service to set-up an individually tailored reintegration plan. It recommends involvement of the school nurse to offer any appropriate support on return.

The Council’s Medical Needs Service Policy

8. The Council commissions the Short Stay School for Norfolk (SSSfN) to support home learning for children who cannot attend school because of health needs. The school the pupil is on roll at is responsible for making the medical needs referral to the Council.
9. Where the Council agrees to provide alternative provision, it holds an initial planning meeting to decide the most appropriate package of education for the young person for the next twelve weeks (or if shorter, the period the young person will be absent from school). It reviews that provision at six weeks. The Council’s policy provides a template for the review and reintegration plan.
10. If the young person cannot return to school after twelve weeks, the policy states the school needs to provide the Council further medical evidence and medical needs referral, for the alternative provision to continue.

Background

11. Mr X’s daughter, D suffers from anxiety. In September 2018, D stopped going to school. That was during D’s final year of primary school. D’s school completed a medical needs referral, and the Council arranged for D to receive alternative education, at home from the SSSfN. That provision started at the end of January 2019.
12. In March 2019, the Council held a review meeting of D’s alternative provision. The minutes state there were no plans to reintegrate into school, as D was moving to secondary school in the September. D’s doctor provided a letter supporting home tuition until the end of the academic year in July.

What happened

13. School A held a transition meeting for D in July 2019. That meeting was attended by the Council, the School Nurse, Mr X, and the SSSfN. The meeting minutes show:
• Mr X did not think D would start School A in September and that he wanted work for her to do at home.
• Mr X said D needed further counselling- the School Nurse agreed to follow this up with health services.
• School A did not anticipate D would attend immediately; however it said it had a nurture environment D could work in initially. D could start by doing art once a week.
• D could have sessions with School A’s therapy dog.
• The school would set up online learning at home.
• School A would make a further referral to the SSSfN.
14. At the end of August 2019, the Children and Adolescent Mental Health Service (CAMHS) wrote to Mr X and said it would contact him about an appointment for D.
15. At the start of September 2019, the Council contacted School A. It said it needed an updated medical needs referral for D and up to date medical evidence. Mr X agreed School A could use the previous referral.
16. Despite not having medical evidence, the SSSfN continued to provide home tuition to D in September. Alongside this, D had weekly dog therapy sessions at School A. School A offered D art therapy sessions which Mr X turned down stating she was not ready. D had an initial assessment with the Children and Adolescent Mental Health Service (CAMHS) at the end of October 2019.
17. School A held a review of D’s alternative provision on 1 November 2019. Mr X did not attend that meeting. He contacted School A beforehand stating he did not think D was engaging well with the allocated SSSfN tutor. He said when D had visited School A it had not been responsive to her medical needs and that she was now refusing to attend further sessions there. In addition to this, the Council said Mr X made serious allegations about the SSSfN tutor.
18. The School, the Council and the SSfN attended the review meeting, where there was a unanimous decision that D’s future sessions should take place in a quiet space at school, to “safeguard all concerned”. The Council stated it had concerns about the allegations Mr X made and about Mr X obstructing D’s home education. The meeting discussed the need for a referral to Children’s Social Care and decided there was no ongoing need for D’s education to take place at home. D’s home tuition stopped with immediate effect.
19. Mr X contacted School A on 17 November 2019. He said D had not had home education since the end of October, and that he had not heard anything since the 1 November meeting. He asked if the School had allocated D a new tutor.
20. School A responded to Mr X. It said
• It would provide D a female tutor, but these sessions would be completed at school.
• It was not pursuing D for non-attendance, however asked Mr X to provide further medical evidence for alternative provision to continue.
21. School A continued to offer pet therapy sessions and asked Mr X if he would consent to an educational psychologist’s assessment for D.
22. Mr X said he would not send through further medical evidence. He agreed to the educational psychologist’s involvement. Mr X refused to send D to School A for alternative provision at school stating she was not well enough for that provision. School A told Mr X that if he did not provide further medical evidence it would code D’s absences as unauthorised as of January 2020.
23. CAMHS wrote to Mr X in December 2019. It said D had reported low mood and anxiety around leaving the house and being separated from her father which impacted on her ability to go to school. CAMHS said she been accepted for further assessment. Mr X did not share that letter with the Council or the School.
24. The School Nurse contacted CAMHS. The case records of that discussion show CAMHS relayed the information set out in its letter to Mr X, however, it did not provide a reason why D could not attend school. It said it had placed D on its creative therapy waiting list. The School Nurse contacted Mr X and told him what CAMHS had shared; she confirmed that she would contact D’s doctor in the New Year for an update.
25. Mr X complained to the Council in December 2019 that School A was withdrawing home tuition because he had asked for a change in tutor. The Council said it had agreed in the July 2019 meeting that home education would continue without medical evidence for September 2019, but further evidence was required following that. It said that alternative provision at that point had not stopped. However, it had received an email from School A that day stating it had spoken to CAMHS and D was not medically unfit for school, therefore D’s alternative provision would end.
26. Mr X complained further to the Council. At the start of January 2020 Mr X contacted School A and stated he was withdrawing D from school because it had failed to take account of her medical needs.
27. The Council sent a stage one response to Mr X in January outlining its policy and the need for medical evidence. It sent a stage two response later that month. It said it had initially decided to continue to provide D alternative education at home without medical evidence because of the length of time she had been out of education, and to help reintegrate her into school. It asked him to provide a copy of any correspondence from CAMHS stating D was unfit to attend school. Mr X remained unhappy and complained to the Ombudsman.

My findings

28. Section 19 of the Education Act 1996 says that if a child of compulsory school age cannot attend school for reasons of illness, exclusion or “otherwise”, the local authority must make arrangements to provide a ‘suitable education’ either at school or elsewhere
29. The Council had medical evidence stating that D would benefit from home tuition until July 2019. It provided that in line with its policy. The Council was not at fault.
30. The Council stated it diverted from its policy and continued to provide home tuition without medical evidence to support D’s reintegration back into mainstream school. The Council was entitled to divert from its policy and it has provided a reason for that decision. The Council was not at fault.
31. In November 2019, Mr X made allegations about the SSSfN tutor. Following that, the Council decided to move D’s alternative provision out of the home to protect staff members. It stated it also had concerns about Mr X obstructing D’s home education; the need for a referral to Children’s Social Care and there being no ongoing need for D’s education to take place at home.
32. Section 19 allows the Council to provide alternative education at school or elsewhere; therefore, it was entitled to move D’s education back into school. However, the Council did not discuss all its concerns and the reasons for moving D’s education out of the home with Mr X. That was fault. We would expect the Council to be transparent in its decision making, and if it has concerns about a parent’s behaviour to address those with them.
33. In addition, the reintegration plan agreed in the July 2019 meeting stated D would initially have sessions with the therapy dog and weekly art sessions at school. The plan did not state at what point the home education would fully transition into School A. We would have expected the November 2019 meeting to review D’s progress and set new targets setting out how and when her education would move back into school. Given D had not attended any art therapy sessions, the decision to move all sessions back into school with immediate effect was abrupt and appears to have been made based on Mr X's behaviour and not D's needs. That was fault.
34. There is no evidence that Mr X was told about the decision to move the education into school until three weeks after the meeting. That was also fault.
35. Mr X complained about the Council’s decision to ask for further medical evidence in November 2019. The Council had no current medical evidence verifying that D was too unwell to attend school; the last referral from D’s doctor ended at the end of the academic year. Therefore, the Council was entitled to ask Mr X for further medical evidence. It agreed to continue to provide alternative provision until the end of the Christmas school term, giving Mr X sufficient opportunity to get further medical evidence. The Council was not at fault.
36. There is no fault in the Council’s decision to stop providing alternative provision for D from January 2020. Mr X took D off school roll therefore the Council does not have to provide alternative provision where a child is electively home educated. The Council was not at fault.

Injustice to D

37. Although the Council was at fault in how it ended D’s alternative provision in the home, that did not cause D a significant injustice. Mr X has chosen to electively home educate D as opposed to providing medical evidence to state she is unfit to attend school. Therefore, even if the Council had been transparent for the reasons for ending the at home provision it is unlikely to have resulted in a different outcome.

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Agreed Action

38. Within one month of my final decision the Council has agreed to:
• Remind all relevant staff to be transparent about its decision making when arranging alternative provision.
• Remind all relevant staff to use the suggested reintegration plan in its policy and ensure any plans set out clear objectives with timeframes for review.

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Final decision

39. There was fault in how the Council ended D’s home tuition, however that has not caused an injustice. The Council has agreed to my recommendations; therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman