Surrey County Council (20 000 725)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 13 Jan 2021

The Ombudsman's final decision:

Summary: Mrs X complains the Council failed to provide appropriate advice regarding her options when she withdrew her son from school due to his ill health. She complains a council officer suggested she had acted illegally could be prosecuted if her son did not receive an appropriate full-time education. The Council’s failure to provide full information or to direct Mrs X to the Council’s other education teams for advice on her options amounts to fault. This fault has caused Mrs X and Y an injustice.

The complaint

  1. The complainant, whom I shall refer to as Mrs X complains the Council failed to provide appropriate advice regarding her options when she withdrew her son from school due to his ill health. She complains a council officer suggested she had acted illegally in taking her son off the roll at school and that she could be prosecuted if he did not receive an appropriate full-time education.
  2. Mrs X complains her son has been out of education since February 2019 and that she has incurred considerable expense in online course and exam fees, and in psychotherapy costs. She also lost earnings.
  3. Mrs X also complains about the way the Council handled her complaint at stage two of its complaint process.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  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. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mrs X;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • Mrs 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

Education provision

  1. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
  2. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
  3. The education provided by the Council must be full-time unless the Council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)

Elective Home Education

  1. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups.
  2. Elective home education is distinct from education provided by a council otherwise than at school. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
  3. Councils do not regulate home education. However, the law requires councils to make enquiries about what education is being provided when a child is not attending school full-time. Councils should have a policy on elective home education setting out how it will engage and communicate with parents.

What happened here

  1. Mrs X removed her son, Y from the school roll in February 2019. She states he had been out of school since Easter 2018 and was unable to return due to his ongoing mental health issues and negative associations with the school. Y was 16 at the time, in his final compulsory school year.
  2. Around this time, Mrs X received an unsolicited generic email from the Council suggesting she might be interested in its webpage on home education. Mrs X states she contacted the telephone number provided in the booklet as she had been unable to find any other clear contact information on the Council’s website. Mrs X telephoned the Council to identify who she needed to speak to and then emailed the elective home education service. She explained she wanted to speak to an officer about senior level home education. Her email stated they were seeking home education out of necessity because Y had fallen out of education due to mental health issues. She asked to speak to the officer to discuss how best to proceed.
  3. There is no contemporaneous record of Mrs X’s subsequent conversation with the elective home education service, but Mrs X states she informed the officer Y was no longer in education due to ongoing illness and an inability to attend. Mrs X states she also informed the officer that she had contacted other schools, but they did not accept students who were already in year 10.
  4. Mrs X states the officer told her it was illegal for her son to be off roll without any other educational provision in place, and that Y had to receive appropriate full-time education. Mrs X understood this to suggest she had acted illegally in removing Y from the roll and explained the circumstances which led to this. She states the officer told her she would need to obtain a letter from Y’s psychotherapist confirming he was currently unfit to receive education. Y could then be registered as in ‘home education’. Mrs X states she told the officer Y often slept by day and was awake at night. The officer explained the benefits of home education and how it could be accessed on Y’s terms at a time that suited him.
  5. Mrs X states the officer only told her about home education and did not at any point tell her about the Council’s Access to Education service or any other possible educational provision from the Council.
  6. Following this telephone conversation, the officer emailed Mrs X information about home education and reminded her to send evidence Y was too unwell to engage in education activities. Mrs X states Y’s health gradually improved and she signed him up to a few online GCSE courses in late May/ early June 2019. Unfortunately, Y found it difficult to access and engage in remote online learning.
  7. Mrs X states she became aware in December 2019 of the distinction between Home education and Education Otherwise than at School, and that Y could have received alternative provision from the Council. However, by this time, Y was 17 and was now too old to access this provision.
  8. Mrs X complained to the Council that she had been poorly advised by its officer and not made aware of Y’s right to access alternative provision. Mrs X considered elective home education was totally inappropriate for Y as it offered no support for either Y or Mrs X. Mrs X asserted that had the Council offered alternative provision, Y would have found it easier to return to learning and would not have had such a long period without provision and the associated social isolation.
  9. Due to the restructuring of the Council’s education department and the departure of some staff the Council decided to progress Mrs X’s complaint straight to stage two of its process. Mrs X did not object to this escalation but is unhappy with the way the Council conducted the stage two investigation.
  10. The Council appointed an Independent Investigating Officer (IIO) who contacted Mrs X to agree her statement of complaint. Mrs X states the IIO considered her letter of complaint was too lengthy and needed shortening and formulating as a statement of complaint. She asked for clarification about the process and the IIO’s independence. Mrs X states the IIO did not answer all her questions and implied she was being difficult in seeking clarification. She was unhappy the IIO said they would discontinue the investigation if Mrs X did not sign a statement of complaint.
  11. In February 2020 the IIO withdrew from the investigation. The Council told Mrs X this was due to her concerns about the IIO’s professionalism and impartiality which meant it was not practical for them to continue. Mrs X disputed questioning the IIO’s professionalism and asserted she had just sought transparency and clarity. She confirmed she had told the IIO she was keen for the complaint investigation to continue. Mrs X found the circumstances in which the IIO withdrew very stressful. She states it felt like an attempt to position her as uncooperative and to prevent her complaint being heard.
  12. The Council appointed a second IIO who redrafted the statement of complaint and sent it to Mrs X to consider. This outlined six heads of complaint:
    • The Council used threat and coercion when Mrs X telephoned in February 2019 to seek advice for her son, Y;
    • The Council wrongly implied to Mrs X, during the telephone conversation in February 2019, that her action of taking Y ‘off roll’ without another education provider was illegal, causing fear of prosecution;
    • The Council failed to provide Mrs X with sufficient, timely and appropriate information in order for her to make an informed decision about Y’s future education;
    • The Council failed to inform Mrs X about ‘Education Otherwise’ and the ‘Access to Education’ Service in February 2019;
    • The Council wrongly advised Elective Home Education to Mrs X as it was unsuitable for Y’s needs due to his specifically outlined poor mental health and because it required the use of distance learning;
    • The Council’s lack of education provision from February 2019 has prolonged Y’s social isolation and mental health recovery
  13. The IIO questioned the officer Mrs X had spoken to, who disputed threatening Mrs X or behaving coercively. The officer considered they had been friendly, non-judgemental and informative and were upset at Mrs X’s allegation of threats and coercion.
  14. The officer also informed the IIO they had made it clear to Mrs X that if Y was too unwell to engage in any education activities that this would need to be evidenced by a letter from a medical Consultant. The officer recalled Mrs X had said Y was not undertaking any learning activities and they had advised that unless medically signed off from education all children must be on a school roll or be provided with full-time, efficient and suitable education outside of school.
  15. In addition, the officer confirmed they had understood Mrs X had already decided Y should be electively home educated. The officer stated it was not their role to dissuade or encourage parents regarding elective home education. It was the parent’s right to choose and they did not need to provide a reason for this choice. The officer confirmed they had advised Mrs X there were a number of on-line options available. They could not recommend specific providers but had sent a list of many resources.
  16. The officer told the IIO they had made it clear to Mrs X that the choice to electively home educate Y meant that his parents would be responsible for all his educational provision and the Council would not provide any resources. The officer stated Mrs X was not asking the Council to provide education for Y but was asking for advice about electively home educating him.
  17. The IIO did not uphold Mrs X’s complaints. They made no finding regarding Mrs X’s complaint the officer had threatened and coerced Mrs X into home education as there was no way to establish this. The IIO found no evidence the officer said or implied Mrs X’s action in taking Y of the role was illegal or that she could be prosecuted. They were not surprised the officer had only provided information about the elective home education as this was the service Mrs X had contacted, and she did not ask for information on other possible services. The IIO was satisfied the Council had not advised Mrs X to home educate Y. They noted it was beyond the remit of the investigation to determine whether home education was the correct option.
  18. The Council considered the IIO’s report and concluded there was no evidence of fault with injustice.
  19. Mrs X disagrees with the IIO and Council’s conclusions and has asked the Ombudsman to investigate her complaint. Mrs X states the IIO’s withdrawal from the investigation unnecessarily delayed her complaint and that the second IIO wrongly interpreted part of her complaint as being against the SEN Information and Advice Service (SSIAS). Mrs X complains that the elective home education team, not SSIAS failed to inform her about education otherwise than at school.
  20. Mrs X complains the Council’s failure to provide full information in February 2019 or educational provision has prolonged Y’s social isolation and mental health recovery. Mrs X would like the Council to provide alternative education provision for Y and to reimburse her the cost of online courses, private examination fees and Y’s psychotherapy fees. She would also like the Council to compensate Y for his prolonged absence from education and social isolation, and to compensate her for her lost earnings.
  21. In response to the draft decision, the Council has confirmed it has revisited its internal procedures to ensure Inclusions Officers have a conversation with parents to ensure the implications of potentially choosing to Electively Home Educate are clearly understood thus enabling parents to make informed decisions.
  22. Mrs X has also responded to the draft decision. She has provided copies of her initial emails to the elective home education service, which she states shows there was uncertainty about how to proceed and what was open to them. Mrs maintains that had the Council fully explained Y’s option and referred him to the SEND department in February 2019 he could have returned to education sooner. Instead, Y received no provision between February 2019 and September 2020, during his important GCSE years. Mrs X states she told the Council in September 2019 that on line education had failed but the Council did not offer any provision. She asserts that had the Council provided ‘Education otherwise’ Y would have been in the system and could have had assessed GCSE grades when the exams were cancelled in summer 2020.

Analysis

  1. The Council is unable to provide a record of Mrs X’s conversation with an officer in the elective home education team in February 2019. It is unclear whether this is because the officer did not create a record, or whether it is related to a reorganisation within the Council and the disbanding of the team. In either case, this is unsatisfactory. We would expect the Council to maintain records of all contacts with its services and the advice given.
  2. Without accurate record keeping it is not possible to confirm exactly what was discussed, what advice was given. And in the absence of a recording of the call, I am unable to comment on the tone or manner in which anything was said. Mrs X and the officer have differing recollections of the conversation, but I am unable to accept one person’s word over another’s.
  3. However, there is no dispute Mrs X told the officer her son was unable to attend school due to his mental health, and that he was no longer on school roll. Nor is it disputed the officer only provided advice in relation to the home education service.
  4. I recognise the officer worked in the elective home education team but that should not mean they were only able to advise on home education. Y’s medical conditions and inability to attend school or engage in education should have prompted the officer to query whether home education would be suitable for Y and to advise on other options available. I would have expected there to be a much fuller discussion around Y’s ability to engage in education and how this could be supported, by Mrs X and the Council. Including whether there should be a referral to the Special Educational Needs and Disabilities team.
  5. Both the Council and Mrs X had responsibilities and duties regarding Y’s education. I would expect the Council to ensure Mrs X was aware of her duty to ensure Y received an education, and of the Council’s powers and duties where a child is out of education.
  6. Although it is not possible to confirm what the officer told Mrs X about her legal responsibility regarding Y’s education, it is clear the officer raised concerns about Y being out of education and ‘off roll’. The officer also asked Mrs X to provide medical evidence Y was too unwell to engage in any education activities. This request is repeated in the officer’s email, which states:

“Home education should be full time, efficient and suitable to be lawful…Without a letter confirming your son is too unwell to engage in learning he would be expected to be engaged in daily learning activities,”

  1. This would suggest there was some discussion about the lawfulness of Y not being on the roll or receiving an education, and a need to address this.
  2. I consider the officer’s failure to provide full information or to direct Mrs X to the Council’s other education teams for support and advice on her options amounts to fault.
  3. Having identified fault, I must consider whether this has caused Y and Mrs X an injustice. The Council’s failings mean Mrs X was unable to make an informed decision in February 2019 regarding Y’s education and Y potentially missed out on the opportunity to try and re-engage in learning via alternative provision provided by the Council. This has caused avoidable distress and uncertainty for both Mrs X and Y.
  4. I am mindful however that the Council’s duties to Y were time limited. Had the Council fully advised Mrs X of the options and determined Y could receive education other than at school, the Council’s duty to provide this alternative provision would only have extended until the final Friday in the June after Y turned 16. That is 28 June 2019.
  5. When Mrs X contacted the Council in late February 2019 Y was still too unwell to attend school or engage in education. By late May/June 2019, Y felt well enough to start learning again, and Mrs X signed him up to online courses. Y was unable to engage in this form of learning and it is unclear whether he would have been able to engage in alternative provision provided by the Council. Similarly, if he had been able to engage, it is unclear to what extent. Y had been out of education for a significant period of time. Mrs X removed Y from the school roll in February 2019, but he had not attended school since Easter 2018.
  6. It is possible that Y may have been able to begin some tuition within a couple of weeks of Mrs X contacting the Council, but equally Y may not have been well enough to engage for several months. However, the information available suggests it is unlikely Y would have been unable to engage in full time education at any point during these four months.
  7. Mrs X has incurred significant costs for online course and private examination fees, but in the circumstances do not consider it appropriate to recommend the Council reimburse these costs. The costs were incurred at the end of May / early June 2019 for courses which would continue significantly beyond 28 June 2019, when the Council’s duty to provide alternative provision ended.
  8. Mrs X has also asked the Council to reimburse the psychotherapy fees she has incurred. I note that Y was receiving psychotherapy prior to Mrs X’s contact with the Council in February 2019, and that this has continued. I do not consider the Council is responsible for these fees. Nor do I consider the Council should compensate Mrs X for any lost earnings as again I do not consider this flows directly from the Council’s failings in February 2019.

Agreed action

  1. The Council has agreed to apologise to Mrs X and pay her £200 in recognition of the distress and anxiety she experienced and the time and trouble she was put to as a result of the Council’s failings.
  2. The Council has also agreed to apologise to Y and pay him £200 in recognition of the uncertainty and potential missed opportunity to attempt to re-engage with learning as a result of the Council’s failings.
  3. The Council should take this action within one month of the final decision on this complaint.

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Final decision

  1. The Council’s failure to provide full information or to direct Mrs X to the Council’s other education teams for advice on her options amounts to fault. This fault has caused Mrs X and Y an injustice.

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Investigator's decision on behalf of the Ombudsman

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