The Ombudsman's final decision:
Summary: Mr X complained the Council has failed to provide an education for his daughter, Y, when she became too anxious to attend school in September 2021. We find the Council at fault, which caused Y to miss out on educational provision and put Mr X to avoidable time and trouble. To remedy this, the Council has agreed to apologise to Mr X and Y, to make them several payments and to review its procedures.
- Mr X complains the Council has failed to provide an education when his daughter, Y, became too anxious to attend school in September 2021.
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)
- If we are satisfied with an organisation’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)
How I considered this complaint
- As part of my investigation I considered:
- information provided by Mr X;
- information provided by the Council;
- the Council’s policies; and
- guidance we published in 2022-Out of School….out of sight?
- I set out my initial thoughts on the complaint in a draft decision statement and invited Mr X and the Council to comment.
- 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.
What I found
- Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
- The Children, Schools and Families Act 2010 clarified that a suitable education meant a full-time education. The only exception to this is where the physical or mental health of the child means that full-time education would not be in their best interests.
- 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.
- Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils 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”.
- The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
How the Council supports children out of education
- The Council allocates an Inclusion Officer to all schools to provide support to schools and parents with pupil attendance. When an Inclusion Officer receives a referral for support the Inclusion Officer contacts the school to arrange a meeting to understand why the child is not attending. The Inclusion Officer works with all parties to develop an action plan to encourage full time education at school or any agreed alternative provision.
- For children who cannot attend school because of illness or permanent exclusion the Council provides education through a service called Access to Education (A2E). Once A2E receives a referral and it agrees to provide education, it completes an academic assessment and formulates a plan for education. Its policy emphasises the importance of reintegrating pupils back into school at the earliest opportunity.
- Y is a secondary school pupil. In 2020 she developed a severe anxiety about going to school which has affected her attendance.
- Between 2020 and July 2021 Y’s school tried to help her continue learning and encourage her return to school.
- In September 2021 Y returned to school for the new academic year. However, from 6 September 2021 she could not attend because of her severe anxiety.
- Mr X provided Y’s school with a letter from her doctor saying he had made a referral to the Child and Adolescent Mental Health Service (CAMHS) and she was on a waiting list for an assessment.
- On 22 September 2021 Y’s parents met with her school to discuss her absence. Y’s school said it could not provide a staff member to help Y enter school each day. It made a referral to the Inclusion Service for help to encourage Y to come to school.
- Y’s school marked her as absent without authorisation from the 6 September to October (except for two mornings when Y had medical appointments and two days when she was self-isolating because of COVID-19).
- On 30 September 2021 Mr X spoke with the Inclusion Officer for Y’s school as he worried about Y continuing to miss school. He asked about alternative provision for Y. The Inclusion Officer said that Y was not signed off as medically unfit for school and so her school should be providing her with education. Therefore, no alternative provision was available for Y.
- Mr X was unhappy with the Council’s view and made a Stage One complaint.
- On 21 October 2021 Y’s GP wrote a letter saying she was under clinical review with a diagnosis of severe anxiety. Her GP recommended completion of a CAMHS assessment at the earliest opportunity.
- On the same day Mr X received a letter from the Council saying that it was monitoring Y’s attendance.
- On 9 November 2021 Y’s GP wrote a letter saying she was medically unfit to attend school until a CAMHS assessment was complete and management of her severe anxiety in place. Y’s GP followed this up with a further letter dated 13 November 2021 reiterating she was medically unfit to attend school. It also said Y was due to begin counselling.
- On 11 November 2021 the Council’s Multi Disciplinary Team met to discuss Y’s case. It decided that it did not need to complete a statutory assessment of Y’s needs and suggested she self-refer to its Targeted Youth Service (TYS) for help. Y did so.
- On 15 November the Council replied to Mr X’s complaint. The response was late. It said that its Inclusion Officer was liaising with Y’s school to see what strategies could be implemented to help Y return to school. It also asked the Inclusion Officer whether there was any medical advice about Y attending school.
- Y’s Inclusion Officer left in November 2021 and was not replaced until January 2022.
- Mr X was unhappy with the response and escalated his complaint to Stage Two.
- On 21 December 2021 Y met with the TYS to discuss a plan to help her return to school.
- In January 2022 Mr X meet with Y’s school’s new Inclusion Officer to discuss her case. It is unclear what action resulted from the meeting.
- On 12 April the Council responded to Mr X’s Stage Two complaint. It said:
- Y had not been signed off as medically unfit to attend school and so she was not eligible for any alternative provision; and
- the letters from Y’s GP did not say she had been examined nor did they refer to a treatment plan and so were not evidence she was medically unfit to attend school.
- It said that Y’s school had:
- used a code associated with medical appointments to record her absence and so it had authorised it;
- made a referral to its Inclusion Service rather than A2E and so this suggests that it considered Y was medically fit to attend school; and
- provided her with school work.
- Its response did acknowledge the post of Inclusion Officer for Y’s school was vacant from November 2021 to January 2022 and no action had been taken during this time.
- Y continued to work with the TYS and a plan to integrate her back into school was put in place. The plan had some initial success but has been unsuccessful since the Easter break.
- In May the Inclusion Officer was directed by her supervisor to request additional medical information about Y’s fitness to attend school.
- Mr X met with the Inclusion Officer again in July following which she asked Y’s school to make a referral to A2E. It is unclear what action the Inclusion Officer took between meetings with Mr X.
- When a child is not able to go to school because of ill health the Council should ensure the child is receiving a suitable education. It should do this once it is clear the child will be away from school for 15 days or more.
- Y stopped going to school on 6 September 2021. The Council has not provided Y with any alternative education. She has been without any education for three terms. This is fault.
- The Council says it did not provide Y with education because it did not have medical evidence saying Y was unfit to attend school and therefore it did not have a duty to educate her. I disagree.
- The Council had sight of letters from Y’s doctor clearly stating she was medically unfit to attend school. It says this was not suitable evidence because the letters do not say Y was examined. The Council did not ask for medical evidence to be provided from other sources despite it knowing that Y was awaiting a CAMHS assessment, was attending counselling and receiving help from other agencies. Nor did it ask Y’s doctor for clarification about her medical fitness to attend school. The Council should have done so, and its failure means that it did not fully consider Y’s personal circumstances.
- Section 19 also requires the Council to make suitable education arrangements when a child who is of compulsory school age, who because of exclusion, illness or otherwise may not receive a suitable education unless the Council arranges it for them. Therefore, the Council had a duty to provide Y with education despite its view there was insufficient evidence to say she was medically unfit. This is because it should provide her with education under the category of otherwise. Mr X told the Council at meetings with its Inclusion Officers in September 2021 and January 2022 that Y was not receiving education and attempts by her school to reintegrate her were unsuccessful. So, the Council should have arranged alternative education for her.
- The Council says Y’s school sent home schoolwork for her but has not been able to provide any evidence to substantiate its view. Mr X disputes schoolwork was sent home for Y. On the evidence available to me I cannot conclude that Y was given schoolwork.
- Furthermore, we do not consider that schoolwork being sent home amounts to a suitable education. The Children, Schools and Families Act 2010 clarified that a suitable education means a full-time education. A suitable education should therefore include teaching by a teacher. Y did not receive this.
- The Council has provided no evidence demonstrating it assessed Y’s educational needs nor can it substantiate that schoolwork was sent home. It failed to act on Mr X’s repeated reports to it that Y was missing school. It also could have identified that attempts by the school and TYS to reintegrate Y back into school in February 2022 were unsuccessful but its failure to retain sufficient oversight and attend these meetings meant it did not. The Council’s Inclusion Service had many opportunities to identify Y was not receiving education, yet it did not do so and Y’s lack of education went unaddressed. This is fault.
- In addition, I note that in July 2022 the Council’s Inclusion Service asked the school to refer Y to its A2E service. Y’s situation had not altered in any meaningful way since September 2021 and so it had opportunity to take this action earlier. Furthermore, the Council did not need to wait for Y’s school to make a referral to A2E. As the body that retains oversight of Y’s education it could have made the referral itself.
- The Council has agreed to arrange suitable alternative education for Y without delay and not later than six weeks after my final decision.
- Within three months of my final decision the Council has agreed to:
- make a payment of £3600 to Mr X. on behalf of Y, to be used for educational purposes in recognition of the three terms of education that Y missed;
- make a payment of £200 to Mr X in recognition of the time and trouble caused to him in pursuing this matter with the Council and bringing the complaint to us;
- apologise to Mr X for not upholding his complaint and to Y for failing to provide her with alternative education when it should have done so; and,
- review its procedures to ensure the identified failings are not repeated in other cases.
- I have found fault causing injustice. The Council has agreed the ways to remedy the complaint. I have therefore completed my investigation.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman