Summary: Mrs X complained the Council had failed to provide a suitable full-time education to her child, Y, who could not attend school because of anxiety and other health problems. As a result, Mrs X said Y has been disadvantaged educationally. The Council was at fault for not ensuring a suitable education for Y from October 2019 to February 2020. It should make a payment to acknowledge the loss of education for Y. It should also review its policies to ensure suitable education is in place for those who are unable to attend school or are unable to provide the required specialist medical evidence.

The complaint

1. The complainant, whom I refer to as Mrs X, complained on behalf of herself and her daughter, Y. She said the Council failed to provide a suitable education for Y, who could not attend school due to her health problems. She also says the Council failed to address her complaint.
2. Mrs X says as a result of this:

• She and Y experienced unnecessary distress;
• Y was disadvantaged educationally; and
• She had been put through time and trouble and had financial costs pursuing her complaint.

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What I have investigated

3. I have investigated the Council’s educational provision for Y for the period October 2019 to February 2020.
4. The final paragraph of this decision statement sets out why I did not investigate other periods.

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The Ombudsman’s role and powers

5. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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 our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

9. As part of this investigation:
• I considered the complaint made by Mrs X and the Council’s responses;
• I discussed the complaint with Mrs X over the telephone;
• I considered the Council’s responses to my enquiries; and
• I have considered Mrs X and the Council comments on a draft version of this decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted)

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What I found

Law and guidance

11. Under section 19 of the Education Act 1996, councils have a duty to make arrangements for the provision of suitable education at school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them”. Once a council has identified a child needs for alternative education, it must arrange this as quickly as possible.
12. The Government’s statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children with medical health needs. It states that councils should:

• have a written, publicly accessible policy statement which explains how it will meet its legal duty towards children with additional health needs. This policy should make links with related services in the area, such as the Special Educational Needs and Disability Service and Children and Adolescent Mental Health Service (CAMHS);
• have a named officer responsible for the education of children with additional health needs, and parents should know who that person is; and
• not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.

13. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
14. We issued a focus report in September 2011, amended in January 2016, “Out of school…. out of mind?”. This gives guidance for councils 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 councils, including they:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for 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;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where able; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

15. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.

Council’s policy

16. The Council has commissioned a single specialist school to discharge its responsibility to provide a suitable full-time education to children of compulsory school age. This includes children with potentially long-term sickness and children who are unable to attend school because of anxiety or other mental health difficulties.
17. Referrals must be sent by the child’s school to the Council’s Pupil Reintegration Team (PRT), who will screen referrals for eligibility. A referral may be refused if:

• the referral form is incomplete;
• absence from school has not exceeded 15 school days;
• no medical evidence is presented;
• medical evidence is not robust; or
• there appears to be no evidence that the school has attempted to resolve the issues in the first instance.

18. If the PRT refuses a referral it will tell the referring school.
19. If the PRT accepts a referral, it will tell the specialist school and a panel will make a final decision on the referral. If the panel does not accept the referral, it will tell the PRT, who will then tell the referring school of its refusal.

Background

20. Y was diagnosed with Autistic Spectrum Disorder (ASD) at a young age. She was highly intelligent and generally performed well in school. In 2018 Mrs X decided to move Y up a year due to her strong academic skills. Y started at School Z in 2018 to study for her GSCEs. After a few months, she was unable to attend school because she became anxious and fatigued. Mrs X took Y out of school. She agreed with the School and the Council for Y to start the year again the following year.
21. In 2019 Y was diagnosed with a medical condition which caused her several health problems such as fatigue, anxiety, and panic attacks. She was given medicine to help with her pain and her sleep. She was also referred to several other medical specialists to support her with her condition and for further diagnosis of other suspected conditions she may have. She also received support from the Child and Adolescent Mental Health Services (CAMHS).
22. Mrs X shared Y’s medical diagnosis with School Z. In September 2019 Y restarted her school year at School Z. But because of her medical conditions, Y stopped attending school in October 2019. Mrs X asked the school to provide education for Y in her home. But School Z said it could not provide an education for Y unless she attended school. As Y could not attend school, no education provision was provided.
23. In November 2019, School Z made a referral to the Council for Y to receive alternative provision for her education as it could not meet her needs.
24. In line with its policy, the Council screened the referral but decided Y did not meet its criteria. It said the medical evidence provided was not recent and robust enough to explain why Y was too unwell to attend School Z. It explained the medical reports were guidance for School Z, a diagnostic assessment and it did not consider ASD a medical condition. The Council also said it would reconsider the referral if it was provided with a recent update from CAMHS or provided with more medical evidence about Y’s conditions.
25. In January 2020, Mrs X asked the Council to provide alternative provision for Y. She provided a letter from Y’s GP which explained Y’s conditions and the support she was receiving.
26. In response, the Council decided to reconsider Y’s referral for the specialist school. It passed the decision to a panel, which included representatives from the specialist school.
27. The Panel decided Y did not meet its criteria for the same reasons as in paragraph 23. However, the panel asked for a more recent report from CAMHS to show if Y was medically unfit to attend School Z.
28. Mrs X complained to the Council. She said Y had been out of school since October 2019 and it had failed to provide her with any alternative provision during this time.
29. In response the Council told Mrs X it had made two requests for Y’s education to be supported by the specialist school. As these were refused, the Council considered Y’s absence from school unauthorised. It told Mrs X if she was unhappy about this, she could complain to School Z.
30. Mrs X wrote to the Council again. She again explained her daughter was too unwell to attend school and said the Council was failing in its duty to provide her with an education.
31. In response the Council told Mrs X that School Z could authorise the absence until Y was able to return or it could put in place a part-time timetable for a limited period. It explained it had twice referred to the specialist school, but Y did not meet the criteria. It said it was therefore for School Z to address Y’s medical needs and put in place reasonable adjustments.
32. Mrs X received a letter from School Z with a final warning about Y’s lack of attendance. She sought legal advice and asked a solicitor to act for her. The solicitor sent the Council a pre-action protocol letter for judicial review. The letter explained the grounds of the review and said the Council was in breach of its duty to provide Y with an education.
33. The Council then considered the CAMHS report provided a month earlier. It decided because of the report, Y was eligible for a referral to the specialist school. It told Mrs X and her solicitor about its decision.
34. In March 2020, the specialist school visited Mrs X on three occasions to arrange alternative provision for Y. However, due to the COVID-19 outbreak it put further planning on hold. Mrs X is happy with the support provided by the specialist school.
35. Mrs X remained unhappy about the Council’s refusal to provide Y with a suitable full-time education from October 2019 to March 2020 and complained to the Ombudsman.

Analysis

36. Councils are responsible for providing education to children who cannot attend school by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them. It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests.
37. The Council has decided to commission a specialist school to discharge its responsibility in such circumstances. Its policy allows it or the specialist school to refuse referrals in certain circumstances, such as if the medical evidence provided is not robust. The Council is entitled to commission a specialist school and adopt a criterion for referrals.
38. The Council refused School Z’s referral for Y to receive support from the specialist school. Based on the information available, it followed its policy, and this was therefore a decision it was entitled to make. However, the records show the Council then considered it had discharged its duty to provide a suitable full-time education for Y. It said the responsibility returned to School Z. This is fault.
39. School Z referred Y to the Council for alternative provision as it could not provide Y with a suitable full-time education. At this point, regardless of its arrangement with the specialist school, it was the Council’s duty to provide a suitable full-time education for Y. This is because it was aware Y was not attending school and was not receiving any alternative provision. The Council was therefore at fault for its failure to provide any alternative provision for Y between October 2019 and February 2020.
40. The Council’s policy does not explain its duty to provide a suitable full-time education to a child in circumstances where it, or the specialist school, refuses a referral. Nor how such provision will be met by the Council. This is fault. This is because the Council’s policy should clearly reflect its responsibilities under the law.
41. Where we find fault by a council, we must consider the injustice caused to the complainant and whether a remedy is warranted for the injustice. Here, the Council’s failure led to a loss of education for Y over a five-month period.

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Agreed actions

42. To remedy the injustice the Council caused to Mrs X and Y, the Council has agreed to, within one month of the date of my final decision:
1. Apologise to Mrs X and to Y in writing for its failure to provide a suitable full-time education to Y;
2. Pay £2,000 for Mrs X to use as she sees fit for Y’s educational benefit to acknowledge the loss of education to Y between October 2019 and February 2020. This amounts to £400 per month taking into consideration it was a key milestone in her education in which Y received no education at all.
3. Pay Mrs X and Y a further £200 to acknowledge time and trouble in trying to get the Council to comply with the law and statutory guidance.
43. Within three months of the date of my final decision the Council also agreed to:
1. review how it provides education of those who, under section 19, are unable to attend school or are unable to provide the required specialist medical evidence. It should consider whether further procurement is needed to allow more than one set of provision to offer education to such children to bridge the gap in its services;
2. Amend its policy to include circumstances for when referrals to the specialist school is not accepted. This should include its duty under section 19 to provide alternative provision if a child who by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them.

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Final decision

44. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

45. I have not investigated the provision of education provided to Y in the school year 2018-2019. This is because Mrs X is not complaining about this period and she had an agreement with School Z and the Council.
46. I have also not investigated the provision provided to Y from March 2020 as Mrs X is happy with the specialist school’s actions to provide a suitable education for Y.

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Investigator's decision on behalf of the Ombudsman