Surrey County Council (21 017 133)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 16 Oct 2022

The Ombudsman's final decision:

Summary: Mrs K complains the Council failed to ensure her son received a suitable education when he was out of school due to anxiety. We have found fault. The Council has agreed to apologise and make a payment for her son’s educational benefit to acknowledge the injustice caused.

The complaint

  1. Mrs K complains the Council failed to ensure her son, M, received a suitable education between March and November 2021 when he was out of school due to anxiety.
  2. Mrs K says as a result M has lost out on education and social interaction which has affected his mental health and self-esteem. The situation has caused the family immense stress, financial loss, affected their employment and caused them time and trouble.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
  3. 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)
  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. I spoke to Mrs K about her complaint and considered the information she sent and the Council’s response to my enquiries and the statutory guidance “Ensuring a good education for children who cannot attend school because of health needs” 2013 (“the Guidance”).
  2. Mrs K 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

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.

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 courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
  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. If a council is not satisfied that parents are providing a suitable education they can serve a notice on the parent and issue a School Attendance Order. Where a council chooses enforcement, it has no parallel duty to make alternative out-of-school provision for the child in question. This is because the child has a place at school and there is no good reason for them not attending.
  7. 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, it 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 but do not have to wait for a formal diagnosis before providing support to pupils.
  2. The Guidance 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”.
  3. The Courts have found that it is a judgment for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])

Services in Surrey

  1. The Council’s Access to Education service (A2E) provides a flexible, short-term, education service for children who cannot attend school through exceptional circumstances. This could include medical reasons. A2E offers teaching, emotional, behavioural and social development work, mentoring and access to a virtual learning environment. Referrals to A2E can come from schools, the SEND team and the inclusion service (amongst others).
  2. Pupil referral units (PRUs) are schools which provide education for children who are unable to attend a mainstream or special maintained school or academy as they need a higher level of support. Pupils who attend might include those diagnosed with SEN, or experiencing social, emotional or behavioural difficulties, including problems with mental health, school phobia or school refusal.
  3. The Council’s Inclusion Service provides support to schools, parents and young people and deals with non-attendance (truancy), child protection and making enquiries about children missing education. Inclusion officers help children attend school full-time and support pupils and parents in resolving issues which may be affecting a child's wish to attend school.

What happened

  1. Mrs K’s son, M, was diagnosed with ADHD in 2020 and autism spectrum disorder in 2021. He has language and social communication difficulties and demand avoidance. M can become aggressive when he is anxious.
  2. In January 2021, aged six, he was attending a mainstream primary school (“the School”). M was anxious about going to school, would be distressed on arrival, causing him to have challenging behaviours and he would try to escape from the grounds throughout the day. In March 2021, the School put M on a reduced timetable and hoped to gradually extend the time he was in school. The School sought advice from an autism outreach service and asked the Council for support. A family support worker was allocated to M. Mrs K asked the Council to assess M’s Education, Health and Care Needs.
  3. M’s attendance was sporadic. Mrs K gave the School a GP letter in April. This said M had been having problems with anxiety, was awaiting assessment by child mental health services (CAMHS) and “the reasons for him being off school are purely medical”.
  4. In May 2021, the Council’s inclusion officer carried out a register check. She found that M had been on a part-time timetable and was still attending some days. She advised the School to seek advice from the GP, meet with Mrs K and increase M’s timetable after half-term. On the same day, M escaped from the School’s grounds and stopped attending completely.
  5. Mrs K called the inclusion officer who advised that the alternative provision provided by A2E was not suitable as the School was working with her to enable M to attend school. In mid-June the inclusion officer advised the School to refer M to her as the medical evidence was not sufficient for M to be off school indefinitely.
  6. Mrs K gave the School a second GP letter dated 22 June. This said M had been prescribed medication for anxiety and “it is likely his absences from school will continue at least until the end of term”.
  7. The inclusion officer carried out another register check on 28 June. This found M had not been in school since 17 May. His absence was authorised as he was on a reduced timetable due to anxiety and GP letters had been provided. The School was planning to reintegrate M, with the teacher calling him daily that week. The inclusion officer advised the School it could not refer M to her as it was authorising the absences.
  8. The Council agreed to issue an EHC plan for M; it considered his needs could be met in a mainstream school with SEN provision. The School responded to the Council’s consultation on the draft EHC plan on 21 July. It said it could not meet M’s needs. It was planning for M to come into school for breaktimes with a view to extending, but said it was “a long way off” M being able to access school.
  9. The Council’s EHC governance board considered M’s EHC plan. It was aware he had not been attending school fully since March 2021 and asked the officer to explore a referral to the medical PRU if there was medical evidence that M was unfit for school. The Council issued a final EHCP on 10 August which named the School.
  10. Mrs K appealed to the Tribunal. She also asked the Council to refer M to A2E. The Council advised her the medical evidence was insufficient as the GP letter had expired. Mrs K complained to the Council that it had not ensured M had had full-time education since March 2021.
  11. I have seen there was then some internal discussion between the inclusion team and the SEN team. This noted that the Council had not received medical evidence that M was unfit to attend school and should not be referred to A2E as the plan was for a phased return to school in September. As M’s SEN needs could be met in mainstream it could not refer him to A2E on the grounds his placement could not meet his needs. If M was medically unable to attend, the School should refer to A2E if they had sufficient medical evidence. An internal email says the medical PRU only supported secondary children with “significant hospitalised medical concerns or unable to attend due to medical needs, not anxiety”.
  12. A carers’ organisation asked the Council to carry out a carer’s assessment of Mrs K. The Council asked the children with disabilities team to assess M and the family.
  13. The GP provided a further letter on 17 September. This said M was experiencing “quite extreme anxiety, which has become a barrier to his attendance at school. … Mum would like his absences at school recorded as authorised and illness. … Mum feels it is unrealistic for him to attend this term.”
  14. There was a team around the family meeting which agreed M should be referred to A2E if there was updated medical evidence. The School had arranged activities to try to re-engage M but he was not attending.
  15. The Council replied to Mrs K’s complaint on 22 September. It said the GP had provided a letter in March 2021 which indicated M was able to attend school on a part-time basis. There had been no additional medical advice provided to explain the conditions which prevented M’s attendance. The inclusion officer had been in regular contact with the School and there was a support plan to integrate M back into school. Mrs K was dissatisfied and asked for her complaint to be escalated to stage two.
  16. Mrs K gave the Council the most recent GP letter and it asked the School to make a referral to A2E. It did so on 27 September. A2E could not accept the referral as the GP letter “did not state that M could not attend school”.
  17. The evidence I have seen shows the Council considered that medical evidence should be from a consultant level or “if children are on waiting lists for services, a GP letter might be considered”. Its view was that only two GP letters had been received neither of which indicated M was unfit to attend school and they were not sufficient for A2E to accept as a medical referral. It then became apparent that the A2E team had not seen the September GP letter.
  18. A2E accepted the referral on 12 October and started providing support to M at home on 1 November. The plan was three hours support a week with an aim for him to start attending the School in January 2022.
  19. The Council contacted the GP on 15 November seeking more information and sent a stage two response to Mrs K’s complaint on 30 November. It did not uphold her complaint. The complaint investigation found the Council had worked with the School to reintegrate M and had acted in line with its policy on receipt of the referral to A2E. The report said it was the School’s responsibility to refer M to A2E, this was not done until 27 September.
  20. The children and family assessment took place in December. This found M did not meet the criteria for support from the disabilities team. A management review of the assessment in April 2022 overturned this decision.
  21. The Tribunal upheld Mrs K’s appeal. A new EHC plan was issued in February 2022 naming a special school which provided outreach support until M started to attend in September 2022.

My findings

  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 M's absence it needed to consider its legal duties and take action where appropriate.
  3. Firstly, the Council should have considered whether M was receiving a suitable education, for example if the School was providing work for M to do at home. Even if the School had been sending work home for M, Government guidance says this may not be a suitable education.
  4. The Council was aware in May 2021 that M was on a reduced timetable and then in June that he had stopped attending. But I have seen no evidence the Council considered whether any education was being provided at home, what M's educational needs were, or how these were being met. As a result, the Council failed to develop a plan for M's education, either at school or elsewhere. This was fault.
  5. My view is that this fault led to confusion about whether M was receiving a suitable education. The Council appears to have concluded that M was receiving a suitable education but was not attending. In this case, it needed to consider whether attendance should be enforced. However, the inclusion officer was correct that, as the School was authorising his absence, it could not refer M to her. This is because the Council could not have enforced attendance as authorised absences due to illness or otherwise would provide Mrs K with a defence to any prosecution.
  6. If attendance is not to be enforced and M was absent from school for illness or other reasons, the Council had a duty to provide him with a suitable education, in line with section 19.
  7. The "otherwise" category 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. In short, this means that, even if M'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.
  8. In May 2021 the inclusion officer advised the School to work with M to reintegrate him and plan to increase his part-time timetable. I do not find fault here. At that stage M was on a part-time timetable and had been attending, albeit sporadically. The Guidance says support can be provided to try to enable the child to gradually return to school. It was therefore appropriate for the Council to give the School time to take steps to try to reintegrate M into school.
  9. The register check on 28 June found M had not attended since 17 May. He had therefore missed 15 days of education, triggering the Council’s duty to consider provision under section 19 as I have set out above.
  10. The evidence I have seen shows the Council did consider whether to provide alternative education but determined that the medical evidence was insufficient. I find there was fault in the way the Council made this decision.
  11. The Courts have found that councils are entitled to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. But the law does not say alternative provision will only be given where there is medical evidence. In deciding that the medical evidence was unsuitable, the Council overlooked its duty to provide suitable education if a child cannot attend school for reasons other than illness. Nor have I seen evidence it considered the acid test of whether the School was “available and accessible” to M. This is fault.
  12. If the Council’s view was that M was absent due to illness, I also find there was fault in the way it considered the medical evidence.
  13. 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. This is to minimise delay in arranging appropriate provision for the child. I have seen that the Council considers GP’s letters only if the child is on a waiting list for a service. This is too narrow a view; councils should consider each case on its own merits.
  14. If evidence is unclear, we would expect councils to contact medical professionals for clarification and to act in the best interests of the child and provide education until the further evidence is available. I have seen no evidence the Council contacted the GP until November 2021. This was fault.
  15. The Council also considered alternative provision was not suitable for M as there was a plan to reintegrate him back to school. But this view was flawed as the A2E service aims to do just this; to work with children for a short period with a plan to reintegrate.
  16. There was also a view that any referral to A2E must come from the School, but the Council’s A2E referral criteria say that the SEN or inclusion team can make this referral.
  17. There is reference to contact with a PRU which said it was not able to support primary children with anxiety, but I have seen no evidence of any further consideration of whether another PRU may have been suitable for M.
  18. The Council should have intervened after 28 June 2021 to ensure that suitable education was provided to M. As it was unable to enforce attendance, the failure to put alternative provision in place after 28 June 2021 was fault.
  19. Mrs K appealed to the Tribunal in August 2021 about the placement named in his EHC plan. The courts have established that if someone has lodged an appeal to a SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC plan we cannot seek a remedy for lack of education after the date the appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
  20. What this means is that I cannot say that M being on the School’s roll from September 2021 was fault or that his non-attendance then was an injustice caused by fault. However, if there had been no fault in June 2021 and the Council had referred M to A2E (or a PRU) then, it is likely he would have received support by mid-July and in September and October 2021. That he did not is his injustice.
  21. My view is that it is unlikely that M would have been able to cope with a full-time education then, whether at school, a PRU or at home. Nonetheless, he missed out on education for about two and a half school months (given there is evidence A2E took about two weeks to put support in place once it accepted the referral).
  22. 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.
  23. The Ombudsman’s guidance says that 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. Considering M’s needs, the stage of his education and the amount of support he likely missed, I consider that £300 a month would be the appropriate figure.

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Agreed action

  1. Within a month of my final decision, the Council has agreed to apologise to Mrs K and pay her £750 for M’s educational benefit.

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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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