Summary: Once the Council became aware Ms X’s children were not attending school, it failed to either enforce their attendance, or give sufficient consideration to the suitability of the education being offered to the children. The Council also failed to complete one of its child protection enquiries for the children and did not consult sufficient health professionals during its child protection proceedings. To recognise the period of uncertainty caused regarding the children’s education, the Council has agreed to pay Ms X £1,000. To recognise the distress and uncertainty caused by its faults with the child protection proceedings, the Council has agreed to pay Ms X £200. The Council has also agreed to apologise and carry out service improvements.

The complaint

1. Ms X complains the Council wrongly used child protection proceedings when her children were kept off school due to ill health. She said it also failed to provide a suitable education for them while they were not able to attend school in person.
2. Ms X said the Council’s faults have caused her and her children distress and caused the children to avoidably miss out on education.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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)
8. 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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How I considered this complaint

9. I considered the information provided by Ms X and the Council.
10. I considered the relevant law and guidance as set out below.
11. I considered our Guidance on Remedies.
12. I considered all comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Child protection (Section 47)

13. Where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child’s welfare. Such enquiries should be initiated where there are concerns about abuse or neglect. (Children Act 1989, section 47)
14. If, following a referral and an assessment by a social worker, a multi-agency strategy meeting decides the concerns are substantiated and the child is likely to suffer significant harm, the council convenes a Child Protection Conference.
15. The Child Protection Conference decides what action is needed to safeguard the child. This may include a recommendation that the child should be supported by a Child Protection Plan.
16. Child protection enquiries should include multi-agency working and information sharing between key organisations. The initial strategy discussion should decide if there will be a joint or single agency investigation and should include police, health and education professionals. If a child protection investigation is needed, health professionals should provide paediatric or forensic medical assessments of the child if required.
17. Within three months of the initial child protection conference, a child protection review conference should be held which decides whether the risk of harm to the child remains. (Working Together to Safeguard Children, 2018)

Alternative provision

18. Councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special educational needs. (Education Act 1996, section 19)
19. The Council must provide full-time education. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in their interests. (Education Act 1996, subsection 3AA)
20. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
21. The Government’s 2013 statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’, says:
• A child who has health needs should have the same opportunities as their peer group, including a broad and balanced curriculum; and
• Councils should be ready to take responsibility for any child whose illness will prevent them from attending school for 15 or more school days, either in one absence or over the course of a school year, and where suitable education is not otherwise being arranged.
22. 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.
23. The Ombudsman’s focus report, ‘Out of sight…out of mind?’ provides guidance to councils on how to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for councils, which include:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for 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;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where able; and,
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

What happened

24. Ms X’s children, G and Z, are of compulsory school age. G and Z had missed long periods of education for several years before this complaint period began due to health issues. I refer to these earlier events only for background.
25. I am investigating the period between March 2022 when the children stopped attending school, and December 2022, as this is shortly after Ms X received the final complaint response from the Council.
26. On 29 June 2022, the school made a referral to the Council due to concerns regarding the children’s low school attendance. The referral said G had not been in school since 2 March 2022 and Z had not been in school since 23 March 2022.
27. Ms X said her children could not attend school as both were suffering from complex health problems, for which they were either undergoing health assessments or were awaiting treatment. Ms X provided doctor’s letters from around this time authorising the children’s absences.
28. On 12 July 2022, the Council considered the referral it received from the school and decided the threshold was met for child protection (section 47) enquiries to be carried out. It also made a referral to the attendance team for the county. The Council carried out a visit as part of its enquiries. However, it did not complete the assessment and took no further action with regards to the child protection enquiry. Records from this time also show that members of the team were concerned that the children were not spoken to alone during the social worker’s visit.
29. The children accessed no formal education during this time and stayed at home as they were unwell. Some work was sent home by the school when the children were well enough to complete it.
30. A letter dated 18 August 2022 from G’s paediatrician set out his health issues and said he would now benefit from part-time school-based education. This was sent by Ms X to the school and the Council.
31. Another strategy meeting was held on 7 September 2022 following another referral from the school and the Council decided to start child protection enquiries again. The children began attending school part-time following this, so the Council decided to close the child protection enquiry shortly after this as there was no further action required.
32. The Council’s records show the Council accepting that at this time the children had been diagnosed with health conditions which were affecting their schooling. The Council explored whether the children could be home schooled. However, Ms X did not want to home school the children as she wanted them to receive education from education professionals rather than herself. Ms X and the children’s father instead requested alternative provision for the children.
33. Following the children starting to miss more school again, the Council held a further strategy meeting on 18 October 2022. During this meeting, it decided to carry out child protection enquiries and convene a Child Protection Conference. Key health professionals were invited to the meeting. However almost none of the key health professionals invited were able to attend due to pressures on their own caseloads and did not provide any input to the conference.
34. During this time, the Council considered requesting a place for the children in a hospital school. However, the Council said a referral could not be sent to the hospital school because at this time, it had no evidence which said the children were not fit to attend school.
35. The Initial Child Protection Conference (ICPC) was held on 8 November 2022. It reached a unanimous decision that the children should be subject to child protection planning under the category of emotional harm. The child protection plan started the same day.
36. Z’s paediatrician diagnosed her with Long Covid in a letter dated 11 November 2022. It noted the problems Z had accessing school. It did not authorise Z’s absence specifically and instead offered to communicate with the school and the Council to see how they could help with her attendance. Ms X provided a copy of this to the Council and the school.
37. On 8 February 2023, the Council held a Child Protection Review Conference. The chair said in their summary that despite the children being on a child protection plan for three months, their educational needs were still not being met and they had not progressed as hoped. The chair said the Council had not obtained enough information about the children’s educational capacity from relevant health professionals and that the Council had been too optimistic about their ability to attend school.
38. The Child Protection Review Conference decided unanimously that the children should remain subject to child protection plans. It decided this because the conference agreed that there had not been enough changes made to reduce the risk to the children. It said going forward the children would have a lead named health professional to provide updates for meetings so professionals had a better idea of what kind of education they could access.
39. Between March 2022 and February 2023, G attended school for thirteen hours and Z attended school for 37 hours.
40. During this time, the school kept both children on roll. The children had access to the full, in-person curriculum when they could attend.
41. Ms X complained to the Council as she said she did not understand why her children had been placed on child protection plans when she had provided medical evidence of their health problems. She also complained the Council had not done enough to provide them with suitable alternative education.
42. The Council responded to Ms X’s complaint. It said there was only a three-week period early in 2022 where one child had authorisation for absence from school due to their health issues. The Council said, following a reintegration timetable, the children were now starting to attend school again part-time and there was no evidence to support that her children required alternative provision due to their health issues.
43. Ms X was unhappy with the Council’s response and complained to the Ombudsman.

My findings

Child protection

44. Ms X said the Council was wrong to use child protection proceedings in this case as she had provided medical evidence to demonstrate that her children could not attend school.
45. For significant parts of this complaint period, Ms X had letters confirming that the children had health problems with significant impact on the children’s day to day lives. However these did not always authorise their absence and usually recommended a part-time timetable for them.
46. Once the Council received the referral from the school it was under a legal duty to make enquiries about the welfare of the children. It decided the information it received from the school met the threshold for it to carry out child protection enquiries.
47. It is not for the Ombudsman to decide whether the threshold for these child protection enquiries were met. This was for the Council to decide. The records show that the Council acted in line with the law and statutory guidance when it responded to this referral. The Council was not at fault.
48. However, the Council then did not complete these child protection proceedings, speak with the children alone, or make a decision on the outcome of this. This was fault. This fault prolonged the child protection proceedings as these were later re-opened. This caused avoidable uncertainty to Ms X about whether the child protection proceedings were being carried out in line with the relevant law and guidance.
49. The Council also failed to consult key health professionals involved with the children during its child protection strategy meetings, conferences and review conferences. The Council explained the reason for this was due to lack of availability by the children’s health consultants. This service failure was largely not within the Council’s control. However, in at least one consultant’s letter for the children, they offered to speak with the Council to see how they could improve the children’s attendance but this was not arranged.
50. This was fault amounting to service failure by the Council. This fault caused Ms X uncertainty regarding whether the Council considered all relevant evidence when carrying out its child protection proceedings.

Education

51. Whether the children were well enough to attend school during this time is not for the Ombudsman to decide. However, the Council was aware from March 2022 that both children were not accessing full-time education and had prolonged absences from school.
52. Councils are under a section 19 duty to make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise and it must put in place this provision without delay. Alternatively, if councils believe children are well enough to attend school, there are a range of measures it can take to enforce attendance.
53. The Council considered hospital school for the children but said they did not meet the criteria due to not having sufficient authorisation for their absence from medical professionals. The Council also offered for Ms X to home-school the children but Ms X did not agree to this, which she was within her rights to do. Instead the children were given work to access from home by the school.
54. I asked the Council to provide evidence of it considering the suitability of the education being provided by the school during this time, in light of the fact the children had such prolonged absences. There is no evidence that the Council turned its mind to the question, during this complaint period, of whether the work being provided by the school for the children to access from home was suitable for their needs, despite Ms X raising that she was unhappy with the education being provided. This was fault.
55. The Council also failed to act decisively in this case to either enforce the children’s attendance if it believed they were well enough to attend school, or arrange alternative education for the children if the current education was not meeting their needs. This was reflected in the chair’s comments during the child protection review conference.
56. In summary, the Council did not do enough between March 2022 and December 2022 to ensure that G and Z were accessing suitable education despite being under a legal duty to do so. The Council was at fault.
57. We cannot know with certainty what education would have been suitable for G and Z during this time, as there is not enough input from relevant health professionals setting this out.
58. However, Ms X and her children have been caused a period of distress and uncertainty regarding whether the Council could have done more to improve the children’s educational outcomes during this period, had it acted without these faults.

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Agreed action

59. Within one month of the date of the final decision, the Council has agreed to:
1. Apologise to Ms X for the faults in this case;
2. Pay Ms X £1,000 to recognise the period of uncertainty caused by the Council not sufficiently considering the suitability of G and Z’s education. This is to be used for the children’s benefit;
3. Pay Ms X £200 to recognize the distress caused by the Council’s incomplete child protection proceedings; and
4. Demonstrate that it has taken action to meaningfully consult the children’s key health professionals with regard to their educational capacity and put in place a plan for their education with this in mind.
60. Within three months of the date of the final decision, the Council has agreed to:
1. Remind relevant staff of the need for child protection enquiries to be concluded when started and the importance of speaking to children alone to seek their views; and
2. Review what caused the Council to drift and act indecisively in this case with regards to whether it enforced attendance or re-considered the suitability of the education being provided to the children.
61. The Council should provide us with evidence it has complied with the above actions.

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Final decision

62. I have completed my investigation. I have found fault leading to injustice and recommended an apology, a financial remedy and service improvements.

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Investigator's decision on behalf of the Ombudsman