Summary: Mr X complained that the Council failed to provide his daughter, D, with an education during a period when she was unable to attend school. He said this caused an injustice as it affected D’s wellbeing and she missed out on an education. We find the Council at fault. We have made a recommendation of payment to acknowledge that fault and remedy the injustice caused.

The complaint

1. Mr X complained that the Council failed to ensure his daughter, D, received an education during a period when she was unable to attend school. He says this caused her an injustice because she missed out on her education. He says it also impacted on her wellbeing.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care plan.
4. 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)

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How I considered this complaint

5. I spoke with Mr X.
6. I researched the relevant law and guidance.
7. Mr 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

Relevant law and guidance

Alternative Education

8. Councils have a duty to make arrangements for the provision of suitable full-time education at a 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”. (Education Act 1996, section 19)
9. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 16(6))
10. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:
• provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more;
• address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors; and
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.
11. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.
12. Councils must make reasonable enquiries, when notified by a school that a child has stopped attending, to satisfy itself the child is receiving suitable education (Statutory Guidance ‘Children Missing Education’).
13. A council may take action against parents where it is not satisfied their child is receiving suitable education and the council considers it is appropriate the child should be attending school.
14. The Education Act 1996 provides the following:
• parents have a duty to ensure their children are receiving suitable full-time education (section 7);
• a failure to meet this duty on the parent’s part is an offence under section 444; and
• section 436 of the Act requires councils to identify children not receiving an education.
15. We issued an updated Focus report in July 2022 (previously issued June 2016)‘Out of school…out of sight?’. This 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.
16. In the Focus report, we made seven recommendations based on examples of good practice seen. We said councils should:
• consider the individual circumstances of each case and be aware that, potentially, a council 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.
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

17. Below is not a full chronology of what happened but an account of the relevant facts in this case.
18. Mr X has a daughter, D. D has been diagnosed with autism. In September 2021 she began at a new school, School F.
19. Mr X says that in November 2021 D began to find school overwhelming. In March 2022, a special educational needs plan was put together for D. At that point staff expressed concern that D was already “…missing lots of learning.” It was noted that any interventions that had been planned for D had not taken place because she did not attend school.
20. On 20 April 2022, Mr X contacted the Council to inform it of the situation. He also made an application for an Education, Health and Care plan (EHCP) for D. He asked the Council what it could offer in terms of education while D was unable to attend.
21. Mr X wrote again to the Council about D’s lack of education on 27 April, 3 May and 5 May 2022.
22. The Council said it would address Mr X’s concerns by putting him through the complaints process. In response to my enquiries, it says Mr X did not disagree with this approach. However, the records show Mr X told the Council that, while he was grateful that the Council was treating the case seriously, raising the issue as a complaint did not help address the immediate situation. He stressed that he was concerned his daughter was becoming increasingly isolated and was “…really struggling.”
23. On 3 May 2022, Mr X told the Council that, in the current academic year, D had so far had 31 days off school. He said that, since 21 March 2022, she had attended school for only 2.5 days and, since the Easter holidays, she had been unable to attend. He said he had asked School F for a tutor or mentor but it had been unable to provide either.
24. The Council said it gained assurances from School F that it was implementing support measures and that D’s education was being addressed through a number of measures including referring D for a medical needs support assessment and by corresponding with the school to get a full timeline of the support that was being offered.
25. On 5 May 2022, Mr X wrote to the Council to say he hadn’t heard anything in two weeks. He asked for an update and was told his case was being escalated through the complaint’s procedure.
26. Mr X asked for a timeline and was told that the due date for a response on his complaint was 1 June 2022. Mr X said that this would represent another 18 days without education for D. The Council responded saying that the relevant teams would be informed.
27. On 6 May 2022, a specialist Council keyworker, Officer P, got in contact with Mr and Mrs X.
28. Officer P said Mr X would have to apply to the Council’s medical needs tuition team and provide supporting information from a consultant or from Child and Adolescent Mental Health Services, (CAMHS). She also said that awaiting this information should not cause a delay in referral.
29. The Council said the referral happened on or about 9 May 2022. However, the medical needs tuition team responded to say they would need further medical evidence before the referral could be accepted.
30. The Council says that, following Mr X’s complaint, processes have changed. It says the medical needs tuition team now accept referrals for children and young people where GPs have confirmed that evidence is being awaited following referrals to services.
31. However, at the relevant time, this was not the process. Mrs X explained that a letter from D’s doctor had not arrived yet but asked that her request for tuition for D could continue while the family were awaiting medical reports. She informed the Council that D had an appointment with CAMHS in August 2022.
32. On 11 May 2022 Mrs X forwarded a letter from D’s GP to the Council. The letter said, among other things, that D:
• was struggling with her mental health,
• was under the CAMHS team for anxiety, and
• had been referred to a private psychiatrist.
33. The GP said: “There will be times when [D’s] anxiety and autism will mean that she is unable to contemplate school attendance and I would be grateful if you would support this family as they try their very best to both help [D] from a mental health perspective…”
34. The Council did not consider that this amounted to sufficient evidence that D was medically unfit to attend school. It felt instead that it confirmed that there may be occasions when she was unable to attend school. They considered that reasonable adjustments could be made on D’s behalf, such as authorising absences due to D’s anxiety and accommodate D’s needs.
35. In response to my enquiries on this case, the Council said that in its view, this was a non-attendance issue and “…support should have been implemented in line with parents’ responsibility of ensuring attendance, as appropriate provision was available.”
36. Mr and Mrs X continued to ask the Council for updates and, on 20 May 2022, the Council formally responded to their complaint. It did not uphold the complaint. Mr and Mrs X sought to escalate their complaint to the next stage.
37. On 6 June 2022, the Council asked School F for a chronology setting out the actions it had taken to support D.
38. On 20 June 2022, Mrs X forwarded a copy of a letter from a consultant psychiatrist to the Council. On 5 July 2022, Mr and Mrs X emailed the Council again asking for a meeting.
39. The Council gave its stage two complaint response on 7 July 2022. It said that neither School F nor Mr and Ms X had submitted medical evidence to allow a referral to be made to its medical needs tuition team. (It now says that a referral had been made but that it was not accepted because of lack of medical evidence). It pointed out that School F had said it had taken various measures to support the family. It referred to some of the steps School F had claimed to have taken in its recent correspondence. These included:
• Providing D with a time out card,
• Identifying a safe space for D in school,
• Offering her wellbeing and anxiety workshops,
• Completion of a pupil passport, and
• Coordination of various meetings with school and family, including home visits, and the implementation of a reduced/part-time timetable to support reintegration.
• Providing some tuition at School F’s ‘hub’ from June 2022.
40. On 13 July 2022, Mr X wrote to the Council to say that the Council’s stage two response had not taken into account the medical evidence provided by D’s GP. He noted that guidance from a respected charity said evidence from a GP was acceptable.
41. In late July 2022, D’s EHCP was finalised.
42. The Council points out that, when D attended her appointment with CAHMS in August 2022, she was discharged the same day. She was assessed as being below the threshold that was required for support through the medical needs tuition team policy.

Analysis

43. The Council has a duty under section 19 of the Education Act 1990 to ensure that D has a suitable education. When it learned she had not been attending school on a regular basis and had missed more than 15 days education, it should have taken decisive action. If it considered D had a suitable school placement available to her at School F and was able to attend, it could have taken action to require her to attend.
44. It says it was assured School F had taken appropriate steps to help D back into education. However, it only received a chronology setting out the steps taken by School F on 21 June 2022. Further, most of the information that School F provided only went to show that D had not been attending school. It was noted that D had started not to attend school on a weekly basis as far back as 21 September 2021. The information showed that School F had offered D anxiety workshops and had had discussions with Mr and Mrs X about D’s lack of attendance, but the information does not show that there was any real possibility of D starting to attend school. It does not demonstrate that D had been receiving a suitable education.
45. Further, Mr and Mrs X repeatedly told the Council that D said she could not attend school, that she was becoming increasingly isolated and that she was not receiving any education. The Council dealt with this situation as a complaint about its service rather than simultaneously taking action to ensure it met its duty to provide D with an education. This was fault and it caused injustice to X as it caused significant delay in dealing with the issue.
46. It was also concerning that the Council’s medical needs tuition team refused to process Mr and Mrs X’s application because Mr and Mrs X were not able to provide all the required medical documentation at the time. This too was fault and caused injustice in the form of delay. The Council says it has now changed its policy as to what needs to be provided before it considers an application. But, at the time, while Mrs X had been told that the family’s inability to provide the relevant evidence should not delay a referral, it did.
47. The Council points out that, when D did eventually manage to attend an appointment with CAHMS, she was discharged. But the Council did not know this at the time. While it was ascertaining if D did meet the threshold for support from the medical needs referral team, it should have taken steps to ensure that D was receiving an education.
48. The Council says it did not consider Mrs X’s production of a letter from a GP demonstrated that D was medically unfit to attend school .
49. However, the relevant legislation says Councils have a duty to make arrangements for the provision of suitable full-time education at a 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”. In its response to our enquiries the Council says this was ‘a non-attendance issue’ and that D could have attended school. But if it considered that was the case, the Council should have taken steps to ensure D attended school, through legal action if necessary.
50. In conclusion, the Council was aware from April 2022, that D was not attending school. Even if D attended the school’s ‘hub’, on occasion, in June 2022, the evidence I have seen shows D was not receiving a suitable full-time education and the Council did not step in to ensure she did.
51. However, I consider the Council was at fault. This fault caused injustice. I consider it should make a payment to D to acknowledge its failure to act throughout the months of May to July 2022. (I understand D started attending a different school in September 2022.) I have recommended a payment in line with our Guidance on Remedies, representing £400 per month. I have taken account of the fact that D did not receive a suitable education through the period, despite her parents repeated requests for support. I have also taken into account that D is a child who has an EHCP.

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Agreed action

52. Within a month of issuing our final decision, the Council should:
1. Apologise to Mr and Mrs X and to D for the fault identified.
2. Make a payment of £1200 to D.
53. Within two months of issuing our final decision, the Council should have reviewed its policies and procedures for situations where it is informed a child is missing education. It should ensure that it has systems in place to take decisive action when it becomes aware a child is missing education. It should provide evidence of this review to the Ombudsman.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have found the Council at fault and made recommendations to remedy the injustice caused. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman