Royal Borough of Kingston upon Thames (19 020 355)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 12 Jan 2021

The Ombudsman's final decision:

Summary: Ms F complains the Council failed to make alternative educational provision for her son. We have found fault that has caused her son to lose out on education and the family significant distress. The Council has agreed to apologise, make a payment for her son’s educational benefit and review its commissioning arrangements for alternative provision.

The complaint

  1. Ms F complains that the Council:
    • Failed to make alternative educational provision for her son from February 2019
    • Wrongly tried to force him back to the school he had been medically unfit to attend, and
    • Wrongly carried out a child protection investigation.
  2. Ms F says as a result her son has lost out on education and the family has been caused significant distress.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  6. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
  7. 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)
  8. 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 spoke to Ms F about her complaint and considered the information she sent, the Council’s response to my enquiries and:
    • The Education Act 1996
    • Statutory guidance “Ensuring a good education for children who cannot attend school because of health needs” 2013 (“the Guidance”)
    • Statutory guidance “Alternative Provision” 2013
    • Achieving for Children’s Medical Tuition Policy
    • Statutory Guidance Working Together to Safeguard Children
    • The Pan London Child Protection Procedures
  2. Ms F 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

  1. Achieving for Children (AfC) is commissioned by the Council to provide certain children’s services to ensure the Council meets its statutory duty to arrange suitable full-time education for children of compulsory school age. This includes providing alternative forms of education for children where mainstream inclusion is not appropriate. The Council retains legal responsibility for provision of these services. As AfC is acting on behalf of the Council I have referred to its decisions and actions as being those of the Council throughout this statement.

Alternative educational provision

  1. The Education Act 1996 says that if a child of compulsory school age cannot attend school for “reasons of illness, exclusion from school or otherwise” the local authority must make arrangements to provide suitable education either at school or elsewhere, such as at home. The duty 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. (Education Act 1996, Section 19(1))
  2. The law does not specify when alternative educational provision should begin, but statutory guidance states local authorities should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
  3. When a child refuses to attend school or appears to have a phobia about attending, the council must consider whether he or she is medically fit to attend school. If not, it needs to decide how many hours of what type of education it should provide. If the council offers a child less than full-time education, it must regularly review the situation.
  4. The statutory guidance says local authorities should not:
    • withhold or reduce the provision, or type of provision, for a child because of how much it will cost; or
    • have processes or policies in place which prevent a child from getting the right type of provision and a good education.
  5. The Section 19 duty does not apply simply because a parent refuses to send a child to the educational provision. A judicial decision (R (on the application of G) V Westminster Council [2004] EWCA Civ 45) says that the education offered, regardless of its rejection by the parent, must have been “reasonably available and accessible” to the child. It also says that where a pupil is not attending school and remains on the school's roll the pupil may be entitled to interim educational provision when it is not reasonably possible for the pupil to attend the school and where the cause of the pupil's non-attendance is unavoidable.
  6. Our Focus Report, Out of school…out of mind?, gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. It says councils should:
    • consider the individual circumstances of each case and be aware that, potentially, 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;
    • keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
    • adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
    • put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Medical evidence

  1. Where schools accept that a pupil is ill, they must authorise the absence. Schools may seek evidence about a child's medical condition, such as a prescription or an appointment card, as well as a doctor’s note. However, schools do not have to wait for a formal diagnosis before providing support to pupils. The head teacher will have to make a judgment about what support to provide to the pupil, based on medical evidence available at the time that the school is made aware of an issue.
  2. Councils, schools and governing bodies should set criteria for referring and admitting pupils to alternative provision. The Guidance says:

“In order to better understand the needs of the child, and therefore choose the most appropriate provision, LAs should work closely with medical professionals and the child’s family, and consider the medical evidence. LAs should make every effort to minimise the disruption to a child’s education. For example, where specific medical evidence, such as that provided by a medical consultant, is not quickly available, LAs 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.” (Ensuring a good education... (paragraph 12))

  1. The Council’s Medical Tuition policy says medical tuition will be made available to children who are unable to attend school due to medical needs or injury. It says a medical or Child and Adolescent Mental Health Service (CAMHS) consultant letter is required which must state the child is too unwell to attend school. It also says the referral must state that the child is receiving treatment or is in a period of recovery following a medical procedure.
  2. The Council’s children missing education policy says if a child misses education for five consecutive days the case should be reported to AfC’s Single Point of Access, who will notify the Education Welfare Service (EWS) if the absence is unauthorised.

Special educational needs

  1. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
  2. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child's plan, or the fact that no school or other provider is named.

Child protection

  1. The Children Act 1989 says councils have a duty to safeguard and promote the welfare of children within their area who are in need. Local authorities have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child's welfare. (Children Act 1989, Section 47)
  2. If a local authority receives a report of concern about a child (a "safeguarding referral"), the council must decide within one working day what response is required. This includes determining whether:
    • the child requires immediate protection, or
    • the child is in need and should be assessed under Section 17 of the Act, or
    • there is reasonable cause to suspect that the child is suffering, or likely to suffer, significant harm.
  3. If the initial assessment suggests the child may be suffering, or be likely to suffer, significant harm, the council should hold a strategy discussion to enable it to decide, with other agencies including the police, whether to initiate safeguarding enquiries under Section 47 of the Act.
  4. If concerns of significant harm are substantiated, an initial child protection conference should be convened to decide what action is needed to safeguard the child. The conference may decide to make the child the subject of a child protection plan.
  5. Following a Section 17 assessment, if the council decides to provide services a child in need plan should be developed. Parents must agree to a child in need plan.

What happened

February 2019 to October 2019

  1. Mr and Ms F’s son, J, has autism and a bowel disorder for which he is receiving medical care. He was attending a mainstream primary school (the School) and had SEN support and an EHC plan. Ms F says J’s bowel disorder caused incontinence and severe pain. She says from 2017 J displayed growing anxiety, an eating disorder and school phobia. On 13 February 2019, just before half term, J had a breakdown and refused to go back to school.
  2. The School met with Mr F on 29 February 2019 to discuss J's history of anxiety attending school, his refusal to eat or drink at school and how to help him attend, perhaps through staggered attendance. There was also a discussion about contacting CAMHS. The School emailed the Council after J had not been in school for five consecutive school days, with a summary of this discussion. On 5 March 2019, the School asked the Council to make a referral to CAMHS and it spoke to the Education Welfare Officer (EWO) a few days later. J had been out of school for 15 school days on 18 March 2019. There is no evidence of any education being provided to J after February 2019.
  3. A Team Around the Child (TAC) meeting was held on 4 April 2019. The Council has no minutes of this meeting. Ms F says they wanted to discuss home tuition for J, with a view to moving him eventually to an independent special school. The Council says it was agreed that an education inclusion officer would evaluate J and try to get him to return to school. The inclusion officer visited J a number of times. I have seen no notes of his visits, but Ms F says the officer agreed that J was too anxious to attend the School.
  4. Ms F says the family were made to wait for months on wrong waiting lists: one for an organisation that only dealt with children under 5, and one for an acute paediatrician when J required a community paediatrician.
  5. A second TAC meeting was held on 14 June 2019. Mr F explained the family was not able to home educate and requested home tuition. He was asked to provide evidence from a consultant that J was unable to attend school due to illness. The notes say CAMHS had rejected the referral and had suggested family support, but this was not considered appropriate and it was agreed to refer J back to CAMHS. An early annual review of J’s EHC plan would be arranged and the inclusion officer would continue to visit.
  6. The family asked J’s medical consultant to provide a letter. This said J was “refusing to attend school … which seems directly linked to his fear … he would benefit from being educated in a supported environment without confrontation … Dad has asked for a letter to support home schooling and certainly this would be one solution that may help”. The Council considered this was not sufficient evidence that J was too ill to attend school, it also said that “home schooling” was not the same as the medical tuition it offered. J remained at home with no education.
  7. There was an annual review of J’s EHC plan on 16 July 2019. The School said it could no longer meet J’s needs and it was agreed that alternative educational provision should be arranged. I have seen no evidence the Council took any action about this until September 2019.
  8. Ms F complained to the Council on 21 July 2019 that it had failed to provide a suitable education for J since February 2019. She asked that home tuition be provided.
  9. In September 2019 the Council’s SEND panel considered whether to fund medical tuition, it asked Ms F for more medical evidence. She sent photographs of J and described the difficulties he faced. The Council replied to Ms F’s complaint on 16 September 2019. It said it had advised her of the policy for medical tuition, but she had not provided any evidence that J was too ill to attend school.
  10. The next day a safeguarding referral was made due to concerns that J was not attending school and appeared malnourished. A strategy discussion agreed Section 47 safeguarding enquiries should be carried out.
  11. The Council then received the School’s report of the July 2019 annual review. As this said the School could no longer meet J’s needs, the Council started to arrange home tuition. Home tuition started on 14 October 2019.

November 2019 to March 2020

  1. During November 2019, Ms F became concerned about the home tutor as she felt J’s anxiety was increasing, so a new one was found. There were also discussions about assessing J for a behavioural support programme, but Ms F withdrew consent for this in December as she had been advised it would not be suitable for J.
  2. The Section 47 enquiries were completed. These found J and his sibling were at risk of harm so an initial child protection conference was convened in December 2019, which Mr F attended. The social worker considered a child protection plan should be put in place for J, but the conference chair found the threshold for this was not met as there was no evidence of neglect. It was proposed child in need plans should be put in place for J and his sibling, but Mr and Ms F would not agree to them. Ms F asked to escalate her complaint to the next stage of the Council’s complaint process.
  3. In January 2020 Ms F cancelled the home tuition as it was making J increasingly anxious.
  4. The Council sent its final complaint response on 31 January 2020. This said: “while J was not attending school, the school was clear that the provision could continue to meet J’s needs … therefore [the legal requirement to provide alternative provision after 15 days] would not apply. … To clarify, where a child is absent from school by reason of illness for 15 days or more it is the responsibility of the school to manage this ... On the 15th day Local Authorities must have an awareness of a child not being in school, but the expectation is for the LA to work in partnership with the school to provide advice and guidance … to support a child to return to school.”
  5. Ms F complained to the Ombudsman in March 2020. The length of our investigation was affected by the coronavirus pandemic. Since complaining, the Council has agreed to provide J with a personal budget to fund tuition, there will be an educational psychology assessment and therapies for J have been suggested.

My findings

Provision of alternative education

  1. The law is clear that councils must intervene and provide education under their Section 19 Education Act duty if no suitable educational provision has been made, for example by their school, for a child who is missing education through exclusion, illness or otherwise. The duty arises after a child has missed 15 days of education either consecutively or cumulatively.
  2. This means that once the Council was alerted to J’s absence it needed to consider its legal duties and take action where appropriate, including offering interim education provision.
  3. The Council was aware J was not attending school by 8 March 2019. He had missed 15 school days by 18 March 2019. However, I have seen no evidence the Council considered whether any education was being provided at home, what J's educational needs were, or how these would be met. As a result, the Council failed to develop a plan for J's education, either at school or elsewhere. This was fault.
  4. It is clear the Council took the stance that it was the School’s responsibility to provide education for J because he was on its roll and the School had not said it could not meet J’s needs. This is not the case and I find the Council’s January 2020 complaint response is wrong in this regard.
  5. Councils should not assume schools shoulder the entire responsibility for a child’s education. Even if the School had been sending work home for J, Government guidance says where a pupil is at home doing schoolwork this should not be categorised as off-site education and it may not be a suitable education. Councils can ask schools to assist in providing alternative education but they cannot delegate the Section 19 duty to schools. The Council should have intervened in March 2019 to ensure that suitable education was provided to J. Its failure to do so was fault.
  6. The Guidance says support can be provided to try to enable the child to gradually return to school. It was therefore appropriate for the School to take steps to try to reintegrate J into school in February and March 2019. Ms F says the Council tried to force J to attend. I have seen no evidence of that, but I consider below the Council’s assumption that J could attend the School and its refusal to provide alternative provision.
  7. In J’s case, he had a medical condition and anxiety. The Council offers medical tuition as an alternative provision, but this is restricted to children who cannot attend school due to ill health and who have evidence from a consultant to say they are too ill to attend. The Council said J did not meet the criteria for medical tuition as he did not have a consultant’s letter to say he was too ill to attend school. This is fault.
  8. The law does not say interim education provision will only be given where there is medical evidence. It is the Council’s duty to prove there has been truancy, not the parents’ duty to prove there is a medical reason for a child not being able to attend school. Since 2013 the Guidance has said that where evidence from a medical consultant is not available, councils should consider other evidence, including from the child’s GP, to minimise delay in arranging appropriate provision for the child. This Guidance is not reflected in the Council’s medical tuition policy and as a result the Council was inflexible about the medical evidence it was willing to accept to provide J with medical tuition.
  9. If there is doubt whether to enforce attendance or provide alternative education, for example because there is the need to obtain further evidence about a child’s health, we would expect councils to act in the best interests of the child and provide education until the further evidence is available. If evidence is unclear, the correct action is to contact medical professionals for clarification, not to treat absences as unauthorised.
  10. The Council was overly focussed on its requirement for specific wording in a consultant’s letter. I find it lost sight of the child’s educational needs and failed to consider there was evidence to support that J was unable to attend school.
  11. I also find that it is fault that the Council has not commissioned any alternative provision for children who cannot attend school for reasons other than illness. The law requires councils to intervene whenever absence is not due to truancy and to provide suitable education to children who cannot attend school because of exclusion, illness or “otherwise”. The category of “otherwise” provides for a wide range of scenarios where the Council may have a legal duty under Section 19. It would include, for example, when a child was refusing to attend school due to anxiety or phobia. The Council should have appropriate provision in place for such children and I am concerned that this gap may mean other children are receiving no suitable education.
  12. The “otherwise” category means that, even if J's absence was not caused by illness or injury, unless the Council could prove it was truancy it had a duty to provide him with a suitable education.
  13. I therefore find the failure to put alternative provision in place from 18 March 2019 was fault.
  14. Whilst the Council did not need to wait until the School said it could not meet J’s needs before providing alternative education, it was nonetheless also fault that the Council delayed taking action until two months after the July 2019 annual review. It should not have waited until it received the School’s formal report.
  15. In response to my draft decision, Ms F said she did not consider the home tuition provided in October 2019 to be suitable. She says J did not receive a suitable education until autumn 2020, when he was awarded a personal budget. It is not the Ombudsman's role to determine the suitability of the education provision, either quality or amount, that J received. The home tutor was provided in October 2019, therefore at that point the Council had provided alternative education. The family cancelled this provision in January 2020, and the lack of provision then was not caused by fault by the Council.

Child protection investigation

  1. Ms F complains about the Council’s decision to start child protection enquiries; she says the social worker twisted the facts and produced a report containing lies and errors to attempt to build a case of child neglect. Ms F notes the chair of the initial child protection conference had said there was no evidence of neglect. She also says that comments made in the social worker’s report about medical care and over-medication had been proved to be wrong. Ms F wants the assessment report to be removed from the record. She says the Council should not have allowed a conference to go ahead based on an incorrect assessment.
  2. The Council had a legal duty to respond to a safeguarding referral. It did so and held a strategy meeting to determine its next steps. It decided to carry out Section 47 enquiries, which found J and his sibling were at risk of harm. This is in line with its procedures. I realise Ms F disagrees, but these are decisions the Council was entitled to make and I have seen no evidence of fault in the way they were made. I therefore cannot criticise them, nor can I ask a council to remove a social worker’s report from its records. The family’s comments on the assessment are recorded in the minutes of the conference, as is the chair’s view that the threshold for child protection had not been met.
  3. We investigate councils as a corporate body. We can make no findings about named individuals, nor can we recommend a remedy targeted at a specific officer. If Ms F is unhappy with the actions of the social worker, Social Work England is the body best placed to deal with specific concerns about the conduct or professionalism of a named social worker.

Did the fault cause injustice?

  1. The Council's failure to put alternative provision in place caused J a significant injustice as he was without a suitable education from March 2019 to October 2019. This is about six school months.
  2. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on.
  3. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. My view is that the Council should pay Ms F £400 for each month of education J lost, so a total of £2,400, to be used for J's educational benefit.
  4. In reaching this view I have taken into account that J was anxious about attending school and is therefore unlikely to have been able to benefit from full time education over this time. But I have also considered that he has special educational needs and that there is potentially time for additional provision now to remedy some or all of the loss.
  5. I also find that the Council’s fault caused Ms F significant distress and anxiety, as she had to pursue the Council to provide education for J. The Ombudsman’s guidance on remedies says a symbolic payment for distress would be a moderate sum of between £100 and £300.
  6. I am concerned that the Council’s alternative provision policy may be causing injustice to other children. In response to my draft decision, the Council says it has started to put in place a developmental and improvement plan and will review and improve the practice to support those young people most at risk.

Agreed action

  1. Within a month of my final decision, the Council has agreed to:
    • Apologise to Mr and Ms F
    • Pay Ms F £2,400 for J’s educational benefit, to acknowledge the impact of the loss of six months education
    • Pay Ms F £300 to acknowledge the distress caused
  2. Within three months of my final decision the Council has agreed:
      1. Amend its medical tuition policy to ensure it allows evidence to be considered from a range of medical professionals and others, in line with the Guidance.
      2. Review the children of compulsory school age in its area who are currently not attending school for reasons other than exclusion and illness. Consider whether they are receiving a suitable education, if not put suitable provision in place.
      3. Review its commissioning arrangements to ensure there are appropriate services in place to meet the needs of pupils who cannot attend school for reasons other than illness.
      4. Provide a report to the Ombudsman setting out the actions the Council has taken to prevent a recurrence of the faults identified.

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Final decision

  1. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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