The Ombudsman's final decision:
Summary: Mrs X complained about the Council’s failure to provide her son, D, with suitable education for several months, including support for his special educational needs. The Council already accepted it was at fault for some of this time, apologised and offered a financial payment to remedy the injustice caused. We have also found the Council was at fault for the earlier period because it should have been aware that D was unable to attend school for medical reasons. To remedy this injustice, the Council has agreed to make an additional payment to Mrs X.
- Mrs X complains about the Council’s failure to provide her son, D, with suitable education and SEN support between January and July 2020. She says the two hours per week of home tuition provided was insufficient.
- She says this fault has adversely affected her D’s academic progress and his general well-being caused by social isolation.
What I have investigated
- Mrs X also complained about the Council’s failure to provide alternative educational provision for D between May 2019 and September 2019. The Ombudsman will not investigate this because the Council has already accepted it acted with fault and made an appropriate remedy. An investigation by the Ombudsman could not achieve anything more for Mrs X.
The Ombudsman’s role and powers
- 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)
- We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will lead to a different outcome, or
(Local Government Act 1974, section 24A(6), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
How I considered this complaint
- I spoke with the complainant and reviewed the information she provided.
- I made enquiries with the Council and considered its response.
- I have also considered the relevant law and guidance including;
- The Education Act 1996, Section 19.
- Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ 2013 (“the Guidance”).
- I have considered guidance issued by the Ombudsman:
- Guidance on Remedies.
- Focus Report ‘Out of School…Out of Mind?’.
- Mrs X and the Council had an opportunity to comment on my draft decision before I made this final decision.
What I found
The law and guidance
Children unable to attend school for medical reasons
- 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.
- 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.
How the Council supports children out of education for health reasons
- As set out in the relevant Council policy, the school has the initial responsibility in making necessary arrangements or adjustments to meet the child’s health needs.
- If the school is unable to provide the support, they may refer the child to the Kent Health Needs Education Service (KHNES). This is described as a short-term educational support service for pupils with health-based barriers to accessing full time education.
Education Health and Care Plans
- A child with special educational needs may have an Education Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.
- I have set out below a summary of the key events. But it is not meant to show everything that happened.
- Mrs X’s son (D) has a number of health issues including autism and arthritis. He has an EHCP that identified he needed additional learning support. At the relevant time, he also received two hours of tutor support from KHNES to help him catch up from an earlier period of health-related absence.
- In January 2020, D was unable to attend school (the School) due to chronic pain. At that time he was 10 years old. Mrs X says she told the School that D was on the waiting list for an operation, but the date was not known. D had his operation in early March.
- The School did not inform the Council of his absence. It later advised the Council that Mrs X said D would be receiving tuition provided by the hospital while he was an inpatient. The School also made arrangements for his existing KHNES support to be provided at home from early February. The School says it called Mrs X and responded to her request for homework in early March.
- In March 2020, the School was unable to provide face to face learning due to Covid-19 restrictions. Mrs X says instead of supporting D to learn from home, the School made an unnecessary referral to social services prompted by D’s non-attendance. The School said it had not received evidence that D was unable to attend on medical grounds. Mrs X strongly disagrees with the actions of the School and is the subject of a separate complaint.
- D continued to be unable to return to school in the summer term because he was shielding. The School arranged one zoom class with six other children in July. It also emailed Mrs X with homework and guidance to Mrs X seven times.
- Mrs X says D was not provided with any SEN support during his time away from the classroom, despite the School being in receipt of additional funding for this.
- D returned to the School on a part time basis in September 2020. He also received home tutor support.
- Mrs X subsequently removed D from the School roll, and he is currently educated with a combination of elective home education and tutor support.
- Mrs X first complained to the Council in August 2020. During the course of the complaints procedure, Mrs X raised the following issues:
- From January until July 2020, D received only two hours educational provision per week. This was home tuition that had been arranged as a result of previous period of health-related absence and was meant to supplement what was provided at school, not replace it.
- The Council failed to provide for D’s social and emotional well-being; a requirement of his EHCP.
- The School gave a false account of the situation to the Council. It said Mrs X had not provided any medical evidence in support of D’s absence. Mrs X provided letters from D’s consultant to confirm his diagnosis and treatment.
- Mrs X provided a number of examples of SEN support that was not being provided by the School, including additional maths, handwriting, typing, occupational therapy and access to a mentor.
- D did not have a named officer overseeing his educational provision.
The Council’s response
- The complaints process lasted several months and continued during the course of the Ombudsman’s investigation. In summary, the Council made the following points:
- The School was informed by Mrs X in January 2020 that D was to be admitted to hospital for three weeks. The hospital was providing a tutor during his admission and the School rearranged the KHNES tutor to attend D at home. The School said it set remote homework for some of this earlier period of absence.
- The Council said there was insufficient medical evidence to establish D was too ill to attend school. The Council said it required proof that D was able to access education for the time he was not an inpatient in early March 2020.
- The strategies identified in the EHCP for addressing anxiety and challenging behaviours were for use in the classroom and not at home. The Council accepted no arrangements had been made to address social isolation and have contact with his peers. For this this Council apologised.
- The KHNES tutor support was intended to supplement school attendance, not replace it.
- The School advised the Council it had emailed Mrs X seven times between April and July 2020 with remote learning and guidance. The Council accepted this should have been supplemented with additional personal learning for D.
- The Council had taken action to remind schools of the need for close liaison with the Council where there are difficulties in a pupil attending school for health reasons.
The Council’s proposed remedy
- The Council accepted it had acted with fault and proposed a remedy payment of to £1500 for lost education between April and July 2020 and £500 for distress.
- The Council agreed to review the period January – March 2020 once Mrs X provided medical evidence about D’s ability to access education while waiting for, attending and recuperating from his operation.
- We cannot consider the role of the School as schools are not within our jurisdiction. This investigation is limited to consideration of the role of the Council. I understand Mrs X has complained separately to the School about its conduct in this matter.
- This complaint covers two periods of time: from January to March 2020 and April to July 2020. I will deal with these separately.
April to July 2020
- It is not in dispute that D did not attend school from 15 January 2020 to the end of the summer term. The Council has accepted it was at fault by failing to ensure suitable education was in place during this time. It has also acknowledged its failure to ensure additional support required by his EHCP was in place.
- I do not intend investigating this part of the complaint further. It is not the role of the Ombudsman to do so where the Council has come to a reasonable conclusion. I am satisfied this has now happened. It is regrettable that it has taken many months for the Council to accept the fault in this case. But the Council has acknowledged this by offering Mrs X a time and trouble payment of £500 and a further £1500 for the lost educational provision. These payments are in line with the Ombudsman’s Guidance on Remedies and so I can add nothing further to this part of the complaint.
January to March 2020
- The Council has not accepted it acted with fault during this earlier period.
- Instead, the Council has requested proof that D was able to access education during his absence from school. Although not explicitly stated, my interpretation of this request is that if D was too poorly to study, then the Council cannot be responsible for any loss of education.
- I am not satisfied this proposal addresses the complaint. Mrs X says the Council failed her son by not having correct procedures in place to even be aware of D’s circumstances. Had the Council been involved at the correct time, it would have been able to carry out its own assessment of D’s ability to study.
- From the evidence I have seen, the Council was not aware of D’s situation until June 2020, when Mrs X raised the matter at D’s annual review. When the Council later asked about what happened between January and March 2020, the School explained it was satisfied D was either too poorly to study and/or had sufficient educational provision via his home tutor/hospital tuition/remote learning.
- In reaching my decision about whether there was fault here, I must consider what should have happened.
- The law is clear that the Council has a duty to make arrangements for children who are unable to receive suitable education by reason of illness. The guidance recommends councils should have a named officer responsible for the education of children with additional health needs and parents should know who that person is. It should also have clear policies in place to ensure there are effective links between related services including SEN and disability services and school nurses.
- D was a child with additional health and learning needs. He was still receiving supplemental teaching from KHNES following an earlier period of health-related absence. He also had an EHCP.
- In my view, this meant the Council should have had procedures in place with the School to ensure it was aware of D’s absence. While I accept the School had its part to play in what happened, the law is clear that ultimate responsibility lay with the Council. For this reason, I am satisfied there was fault by the Council for this earlier period too.
- To the Council’s credit, it has now appointed a named officer responsible for overseeing D’s educational provision and Mrs X has expressed her satisfaction with her. This should prevent a similar situation happening again with D
- The Council also says it has issued reminders to schools about the need to liaise with the Council when children are unable to attend for medical reasons.
- But there remains an outstanding injustice to Mrs X and D that requires a remedy.
- The Ombudsman will usually recommend a payment of between £200 and £600 per month for lost education. He will take account of the impact of the lost education on the child’s life chances and whether any additional provision can remedy some or all of the loss. The Ombudsman will also make payments for complainants’ avoidable distress and frustration and for unnecessary expenditure.
- My remedy reflects the fact the Council was not entirely responsible for what happened, and some educational provision (albeit not enough) was made available to D during those months.
- Within one month from the date of my final decision, the Council has agreed to take the following action:
- Apologise to Mrs X in writing for the additional fault I have identified in this decision statement.
- Pay Mrs X £900, for the benefit of D, to remedy the lost education caused as a result of the Council’s failure to ensure alternative education was available while he was absent from school on medical grounds. This is based on £300 per month of absence.
- Pay Mrs X £2000. This is the remedy already proposed by the Council for its fault between April and July 2020.
- Reflect on the issues raised in this decision statement and identify any areas of unresolved service improvement. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems not reoccur. This report should be sent to the Ombudsman.
- I have found the Council was at fault for failing to provide D with suitable education while unable to attend school for medical reasons. The Council has agreed to make an appropriate remedy.
Investigator's decision on behalf of the Ombudsman