Summary: There was fault by the Council when it failed to maintain sufficient oversight to make sure it was meeting its duty to provide the complainant’s son with suitable education. This meant that the child missed education for almost two years. The Council has agreed to my recommendations to remedy the injustice to the complainant and her son.

The complaint

1. Mrs B complains that:
• The Council failed to make alternative educational provision for her child when he had been unable to attend school due to illness.
• The school and the Council gave conflicting and confusing advice about what medical evidence is needed, and this did not reflect the law and government advice.
2. Mrs B says that as a result of the Council’s failings her son has not had an education for nearly two years. Mrs B says the impact on her son has been enormous, and there has been a significant effect on his mental health. Mrs B says that the lost education means he is now operating at a much-reduced age.

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The Ombudsman’s role and powers

3. 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)
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 considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I considered all comments before issuing my final decision.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

The law and guidance

7. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as alternative provision.
8. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
9. 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)
10. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs (2013)’ 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”.
11. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
12. The Courts have found that it is a judgement 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])

How the Council organises alternative provision

13. The Council has devolved the management of alternative provision due to ill health to a Trust. The Trust receives funding from the Council for its Hospital School to provide short term and long-term enhanced provision. The child’s school can refer directly to the Hospital School and the decision is made by it as to provision. If there are high level needs then the school can apply to the Hospital School, the council or both.
14. In cases of mental illness, long-term enhanced provision by the Hospital School is for children with high level mental illness under the direct care of a psychiatrist. A child receiving the long-term enhanced provision will have an Education Health and Care plan and so the Council can monitor the provision via the normal reviews and liaison between the Council and the Hospital School.

Human rights

15. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
16. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

What happened

17. The following is a summary of events, and does not include all the actions I have considered in my investigation.
18. Mrs B’s son, K had stopped attending school due to his mental health, including anxiety, tics, obsessive behaviour and self-harm. Mrs B tells me there had been a long history of bullying and she had been working with the school to address this and K’s mental health. K was being treated by his GP and had been referred to CAMHS and was on various waiting lists for therapy.
19. K’s school is an academy. Councils have no control over academies. K last attended school on 6 November 2019, when his GP signed him off for six weeks due to his anxiety. Mrs B asked the school whether it would provide education under section 19 as K had not been able to attend for more than 15 days due to his illness. Mrs B says the school said it needed a consultant’s letter in order to get alternative educational provision. K did not at that time have a consultant. Nonetheless his school referred him to the Hospital School.
20. In December, the Hospital School told Mrs B she did not have sufficient medical evidence for K to get his education from it. Mrs B tells me that she telephoned the Council who told her that she just needed a letter from CAMHS. The school made a referral to the Hospital School who refused this again, saying that K needed a consultant’s letter. Mrs B says she telephoned the Council again which also confirmed that K would need a consultant’s letter. Later that month the Hospital School refused K a place again.
21. The Council says at this time it was not aware that K was not in school. It has no record of its conversations with Mrs B.
22. Mrs B requested the Council assess her son for an EHCP in January 2020 and this was refused. In February and March, the Hospital School refused provision for K again despite that they now had evidence from CAMHS. Mrs B tells me that she again asked the Council what to do and how she could get education for K. She had received advice from local and national specialists that the Council should make alternative provision for K and he did not need a consultants letter for this, but the Council should seek other evidence that he could not attend school. Mrs B says she checked the statutory guidance but it did not say what would happen if the Hospital School refused to make provision. The Council emailed Mrs B in March 2020 advising that K’s school would continue to reintegrate him. However, K still could not attend due to his mental health.
23. In August 2020, K was diagnosed with autism and Mrs B asked the Council again to assess him for an EHCP. Again, the Council refused. Mrs B sought the help of the Department for Education who confirmed that K did not need a consultant’s letter to access alternative provision, and medical evidence could be a prescription or something similar.
24. In October 2020 the Council agreed to assess K for an EHCP and that K could be educated at the Hospital School. K started to attend sessions at the Hospital School from 9 November 2020, but could only manage a few sessions due to anxiety.
25. In December, the Council met with Mrs B, the Hospital School and CAMHS to discuss the problems in getting K to school. It met again to review the situation in January 2021. The Hospital School agreed to provide tutors so that K would not have to come into a school setting. However no tutors were available.
26. The Council issued the EHCP in February 2021. It had consulted a special school for children with autism and/or mental illness, but the school said it could not meet K’s needs as these were too severe. The EHCP named the Hospital School for K’s place of education. Mrs B appealed this on the basis that this was still a school environment and was not suitable for K as it triggered severe anxiety.
27. The Hospital School arranged therapy at the school and some online learning. K attended a therapy session and did one session with a tutor in March. He was unable to attend any other sessions at the Hospital School due to anxiety. The school reviewed the situation at the end of March and in April, K had a therapy session outside of school.
28. On 7 June, the Hospital School started a timetable of tutors outside of the school setting for K. It started with four hours per week. Mrs B says the school increased this too quickly and it failed. By July, K again had no education. At this point K started Speech and Language Therapy and had a diagnosis of selective mutism.
29. In September 2021, the Council agreed that K should be educated outside of a school setting by an Education Otherwise Than at School (EOTAS) package. The EOTAS package began on 1 November 2021.
30. The Council says it only knew that K was not receiving education from August 2020, and neither the former school nor Mrs B alerted the Council to this any earlier. However, Mrs B has sent me correspondence between her and the Council that show the Council knew that K was not accessing education by November 2019.
31. In response to my enquiries, the Council says it agrees a child does not need a consultant’s letter to access the Hospital School’s general provision. However, evidence from a consultant is needed to access the enhanced long-term provision. The Council explained that it seems K was being considered for enhanced provision from the beginning. Although it is not clear why. At this stage, K was not under a psychiatrist and so did not have the medical evidence to allow enhanced provision.

Was there fault by the Council causing anxiety to K and Mrs B ?

32. Although the Council does not have control over an academy, the statutory guidance is clear that the duty to provide an education for children too ill to attend school for 15 or more days, applies even when the child is in an academy.
33. When problems arise, councils need some way to assess a child’s needs and to decide whether they have a duty to arrange a child’s education. The guidance says that councils should maintain good links with all schools and put in place systems to cooperate between them when children cannot attend school. The law does not specify the point during a child’s illness when education provision becomes the council’s responsibility, but it must be ready to take responsibility for a child whose illness prevents them from attending school for 15 or more days.
34. Since the Council has a duty to arrange K’s education if he would not otherwise receive suitable education, it must have some way to decide whether its duty has arisen. The Courts have made it clear councils must consider the individual circumstances of the child and be able to demonstrate how they made their decisions (in C v The London Borough of Brent, for example).
35. It is entirely a matter for the Council to decide how to organise its services. Our role is to check that whatever arrangements the Council has made enabled it to fulfil its duties and respond appropriately when problems arose with K’s education.
36. Although the Council may make arrangements for others to carry out its statutory duties, the Council remains responsible if things go wrong. It is important, therefore, the Council maintains oversight and has processes in place to react when problems arise.
37. It seems to me that the Council knew that K was not able to attend school by the end of November 2019. The Council has no record of the conversations but I have seen emails alerting the Council and on balance, it seems more likely than not that Mrs B also contacted it by telephone as she has described. In any case, the school did know that K was not attending, and the Council did not have sufficient oversight to identify at what point its duty arose. It might have believed the school was re-integrating K into the classroom, but I cannot see that it made sufficient checks on this.
38. The Trust was acting on behalf of the Council when it refused to make provision for K because he did not have a consultant. I understand that there was confusion as to whether K needed the standard or enhanced provision and that different evidence is needed for each of these, but again, there appears to be insufficient oversight or checks by the Council particularly when the Hospital School refused to make provision.
39. There is nothing readily available in the published online information of the Council or the Hospital School as to what a parent should expect if the Hospital School refuses to provide education, but the child’s ill health continues to prevent them from attending school elsewhere. This meant that Mrs B had to seek help from local and national specialists and eventually, the Department for Education.
40. Once the Hospital School was providing K’s education, there again appears to be a lack of oversight. It was clear that K was having difficulty accessing the provision, but no alternative was in place until the EOTAS started.
41. The Council’s lack of oversight and liaison with the schools and the Trust meant that K missed education from December 2019 to November 2020. K had a place at the Hospital School from November 2020 but could not access the education. He was able to access some therapy in March 2021 but not educational provision until the June, when he managed some sessions with a tutor. My understanding is that he then had no educational provision until the EOTAS started in November 2021.
42. In addition, given the length of time the Council failed to arrange alternative provision, the Council failed to have due regard to B’s right to an education (Article 2, the First Protocol, Human Rights Act 1998).
43. The Council’s shortcomings have impacted on K’s education, when he already faces significant challenges in attending a school setting in any way. Mrs B says it has also affected her son’s mental health. Mrs B was also caused distress and put to time and trouble in pursuing matters.

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Agreed action

44. In recognition of the impact on K and Mrs B, the Council will within one month of this decision:
• Apologise to K and Mrs B for its shortcomings;
• Pay £300 four-weekly for the missed education from 1 December 2019 to 9 November 2020, 1 January 2021 to 31 May 2021, and 1 July 2021 to 31 October 2021; and
• Pay Mrs B £200 for distress, and £150 for the time and trouble she was put to in pursuing matters.
45. Within three months of this decision the Council will review its working practices and policies so that it retains oversight and responsibility for its duties to children unable to attend school.
46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation. There was fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman