Summary: The Council failed to provide alternative education when a child was unable to attend school for mental health reasons. This led to a loss of education spanning two school years. The Council will apologise, provide a symbolic payment and make service improvements. The complaint is upheld.

The complaint

1. Ms X complains the Council failed to provide fulltime education and to meet her child’s special educational needs when her child developed anxiety which prevented them attending school. Ms X says the Council failed to acknowledge her child was on a pathway for autism and ADHD diagnosis, failed to seek medical advice and did not consider its duty not to discriminate. Ms X says her child missed out on education after September 2021 and she was threatened with prosecution.

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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 most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
5. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
6. 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

7. I have considered information provided by Ms X and the Council.
8. I have considered relevant law and guidance including:
• Children Act 1989
• Children and Families Act 2014
• Education Act 1996
• Equality Act 2010
• Special Educational Needs and Disability (SEND) Regulations and Code of Practice
• Statutory guidance:
1. Children Missing Education
2. Alternative Education
3. Ensuring a good education for children who cannot attend school because of health needs.
4. Summary of responsibilities where a mental health Issue is affecting attendance
5. Working together to safeguard children
6. Working together to improve school attendance.
• Ombudsman’s Focus Report: Out of School, Out of Sight.
• Ombudsman’s Guidance on Remedies.
9. I have spoken to Ms X and the School by telephone.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
11. 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 have and have not investigated

12. I have investigated the actions of the Council except where Ms X has used an alternative legal remedy to the SEND Tribunal.
13. I have not investigated the actions of the School. Schools are not within our jurisdiction.
14. I have investigated the period up to July 2023.

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What I found

Relevant law and guidance

School attendance

15. Section 7 Education Act 1996 requires parents of children of compulsory school age to ensure their child receives fulltime education by regular attendance at school or otherwise.
16. Schools and Councils have various powers to enforce attendance at school. This may include parenting contracts, parenting orders and fixed penalty notices.
17. Councils can also prosecute parents for a criminal offence if they fail to ensure their child attends regularly at school. (s.444(1)(A) Education Act 1996)
18. Statutory guidance Working together to improve school attendance says schools, councils and families should work together to identify root causes of absence and remove barriers to attendance. This may include putting in place an early help plan, or assessing for an Education, Health and Care (EHC) plan.

Education when a child cannot attend school

19. 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. (Statutory guidance ‘Alternative Provision’ January 2013)
20. 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 19(6))
21. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
22. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022. We made recommendations that Councils should:

• 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

23. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
24. Statutory Guidance Ensuring a good education for children who cannot attend school because of health needs says councils should work closely with medical professionals and the child’s family. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals or look at other evidence to ensure minimal delay in arranging appropriate provision for the child. The Guidance says Councils should not unnecessarily demand continuing evidence from a consultant without good reason.
25. In R (on the application of D) v A local authority [2020] EWHC 2916 (Admin) the Court said that it was not a precondition for alternative provision to be provided that parents have obtained a consultant’s report. There may be other ways in which the child’s illness and inability to attend school come to the attention of the local authority. The Judge said it was clear from section 19(1) itself that the responsibility rests with the local authority to identify when alternative provision is required for a child on health grounds: it is the local authority’s decision.
26. In new guidance Summary of responsibilities where a mental health issue is affecting attendance and Working together to improve school attendance the Government says professionals should provide cross-agency support through a team around the family to alleviate a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness that is mental health related. Schools should inform the Council where pupils are likely to miss more than fifteen days. Councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education.

Social care

27. Section 17 of Children Act 1989 requires local authorities to safeguard and promote the welfare of child who are in need in their area. Disabled children automatically meet the definition of a child in need, but it also includes any child who is unlikely to achieve a reasonable standard of health or development without support from the local authority. A ‘child in need’ assessment carried out by Childrens’ Social Care will identify the needs of the child to ensure they and their families are given appropriate support.
28. Statutory guidance Working Together to Safeguard Children sets out the concept of an ‘Early Help’ assessment. This can be undertaken by a range of professionals where there are low level needs that do not merit a ‘child in need’ assessment by a social worker.
29. The Children Act 1989 (as amended by Children and Families Act 2014) places duties on councils to assess the needs of parent carers of disabled children on ‘the appearance of need’. The purpose of a Parent Carer Needs Assessment (PCNA) is to support parent carers to sustain their caring role and support parent carers to work or access education, training or leisure facilities.
30. Section 36(20) of the Children and Families Act 2014 defines an EHC assessment as including an assessment of the child/young person’s social care needs. Where a child/young person is not previously known to social care this will require a new assessment to identify if there are social care needs which need to be included in the EHC plan

Equality Act

31. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
32. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.

The Council’s Protocol for children who are missing education due to health/medical needs

33. The Council’s policy sets out the legal duty under s.19 Education Act and the relevant statutory guidance. It recommends schools initiate an Early Help assessment, which may lead to support from medical professionals.
34. The policy says both the school and the Council must consider what reasonable adjustments need to be made so the child is not disadvantaged in their access to education or discriminated against. It says some children with medical conditions may be considered disabled under the definition set out in the Equality Act 2010.
35. The Council says it has a named officer responsible for the education of children with additional health needs.
36. The Council’s policy has a flowchart for when a child is not able to attend school due to health needs. This states a school should initially put in place a flexible and suitable arrangement with a plan to return to school. Schools can request additional financial support to meet the needs of pupils due to prolonged medical absence and can initiate an Education, Health and Care Needs Assessment (EHCNA) or a care plan.
37. The Protocol does not explain when or how the Council would arrange alternative education itself.

Key facts

38. Ms X’s child moved to secondary school in September 2021 but stopped attending after three days due to anxiety.
39. Ms X says she sought help from Children and Adolescent Mental Health Services (CAMHS) but her child did not meet the threshold for Tier 3 intervention and was offered telephone counselling only. Ms X says her child would stay in their room all day, every day and could not engage with someone over the phone. Ms X says CAMHS would not offer face-to-face support unless the situation was life threatening.
40. In November 2021 Ms X arranged for her child to be assessed privately for autism.
41. Ms X says the School asked for access to general practitioner (GP) records, which Ms X says she provided, however the School later told her it had not received her signed consent form.
42. Ms X decided to apply for an EHCNA.
43. The School employed its own attendance officer who held a meeting with Ms X, requested medical evidence to support non-attendance, and issued warning letters about legal action to enforce attendance. The School did not refer the non-attendance to the Council until mid-February 2022.
44. Ms X told me she contacted the Council directly in Autumn 2021 because she was concerned about the risk of action for non-attendance. Ms X says she had a telephone conversation with the Council’s Education Welfare Officer (EWO) in early December. Ms X says the Council knew her child was absent from school in 2021.
45. In January 2022 Ms X self-referred to the Council’s Early Help ‘Front Door’ service. Notes show Ms X gave the following information ‘[Ms X’s child was] Suffering from anxiety and is refusing to leave the house. This is having a knock on effect with her School attendance. The School Attendance Officer has attended the home…and due to the circumstances they haven’t put a lot of pressure on Mum. Mum has asked School to provide work…but they haven’t been forthcoming…[child] has been diagnosed as having ADHD and autism. Mum is currently undergoing treatment…and is quite ill…Can we look at some sort of support or respite for Mum’.
46. The Early Help assessment started two months later, in mid-March 2022. The document refers to Ms X being hopeful of accessing some home tuition, but this was dependent on the EWO presenting the case for this, backed by medical evidence. The Caseworker noted the assessment had been delayed while being considered for ‘no further action / signposting’ as officers were unsure if the threshold for early help was met, as the main issue was around education. The assessment was signed off in May 2022 with the outcome to convene a team around the family meeting to complete an early help plan.
47. I have not seen a copy of any early help plan completed.
48. In mid-February 2022 the Council’s EWO received the statutory attendance action referral from the School. The School said Ms X was seeking an EHC plan but the School was unable to complete any documentation as did not know the child well enough. The School said it had asked to access GP records, and Ms X had agreed, but not returned the consent form.
49. In March 2022 Ms X obtained a private report from a Consultant Psychiatrist. The School says it did not have sight of this report until June 2022, at which point it shared it with the Council.
50. In March 2022, Ms X complained to the Council about failing to provide s.19 education. The Council replied that it was currently investigating if Ms X had failed to ensure her child attended school under s.7 Education Act and the EWO would be in touch. With regard to s.19 the Council said it would need the School to request this and require sight of medical evidence supporting absence. The Council said it could not offer s.19 education at the same time as investigating for potential legal action for attendance.
51. Ms X complained the Council was not dealing with her complaint under its complaints policy and was viewing the complaint through the lens of truancy and not considering her child’s medical and special educational needs.
52. The Council provided a stage two complaint response in November 2022, but this only considered the information available up to April 2022. It upheld the Council should have considered her complaint under stage one of its complaint policy. The Council did not accept it had failed to provide s.19 education, relying on the fact the School had marked the absences as unauthorised and it was reasonable for the Council to have investigated the non-attendance. The Council again stated s.19 education would require a request from the School.
53. In July 2022, under threat of attendance action, Ms X paid for a further private report to support that her child was medically unfit to attend school. Ms X says the School denied receiving this evidence, although the psychiatrist confirmed to Ms X they had emailed it.
54. Ms X provided the evidence directly to School in early August 2022 via email.
55. In late August, the Council’s EWO sent Ms X a letter stating attendance would be monitored for twenty days (in September and October) in line with the Council’s Code of Practice.
56. In mid-November the School submitted a request form to the Council for alternative provision with supporting medical evidence. It said the absence had been unauthorised until recently as the family were unable to provide appropriate medical evidence. It noted Ms X had applied for an EHC plan but this has been rejected.
57. The Council’s Alternative Provision Panel opened a case at the end of November. In mid-December, the panel authorised four hours tuition per week until the end of March, with a review in mid-January 2023 to check on progress. The Panel noted the EHC needs assessment had been refused but this was going to Tribunal in January 2023 and tutors could provide the additional evidence that was not available previously due to non-attendance at school.
58. The reason given for refusal of an EHC needs assessment was that there was not sufficient evidence of a learning difficulty, or that the graduated approach had been fully implemented. The Council said it would need to see how Ms X’s child responded to specialist support interventions in school first.
59. Tuition started in January 2023 due to a shortage of tutors before then.
60. In March 2023 the tuition was extended by the Panel until May 2023. It was noted tuition had gone well until Ms X’s child had a seizure in February half term and their anxiety and ability to engage in tuition was affected. The Panel noted medical evidence was dated July 2022 so new evidence was required and the Council was to speak to Ms X about this.
61. The EWO then decided the private medical professional was not a robust source of evidence and requested more medical evidence from Ms X. Ms X advised her GP would not provide evidence and the EWO suggested Ms X change GP as further evidence was required. By this time, there was now a draft EHC plan. Ms X was seeking a therapeutic school placement to be named in the Plan.
62. After receipt of further medical evidence, tuition was further extended until the end of July 2023.
63. Ms X says her child became socially isolated due to lack of support. Ms X was also diagnosed with cancer during this time and receiving treatment. Ms X would sleep outside her daughter’s bedroom door as she was concerned her child would harm themselves. Ms X’s child has also started having seizures triggered by anxiety.

The School’s evidence

64. The School told me they did not really know Ms X’s child because they had attended for only a short period. It says it provided online learning and sent work home, but this was not completed.
65. The School told me it considered it had to mark the absence as unauthorised as the family did not provide medical evidence and the form for access to general practitioner records was not returned.
66. The School said it had mental health support available within school but as Ms X’s child did not attend, this was not accessed.
67. The School records show it had on file medical evidence from a private psychiatrist dated March 2022 diagnosing Ms X’s child with autism and stating they would struggle with mainstream schooling. The letter did not say Ms X’s child could not attend school but did note they were not attending. The School says it did not receive this document until June 2022. Following receipt of the private report the School told me it submitted a form to the Council requesting alternative provision be made. It has provided me with a copy of the form which is dated late June 2022.
68. The School had discussions with the EWO who advised the medical evidence was not sufficient and the School should keep the attendance code as unauthorised. Ms X had a further medical appointment in July 2022 and hoped to get more medical evidence then. The EWO advised the School to reinstate a penalty notice, which it did in August 2022.
69. The School told me while it referred the matter to the Council in February 2022, there was no action until Summer 2022 due to the case being reallocated twice at the Council’s end.

Council evidence

70. The Council told me that it could not act to provide s.19 education before November 2022 because the School had questioned the validity of Ms X’s child being able to engage in any of the interventions they had put in place to support … attendance at school. The Council said it could not overturn a Headteacher’s decision not to authorise the absence.
71. The Council says Ms X did not provide medical evidence until June 2022 but while this stated Ms X’s child was not coping in mainstream school, it recommended an EHC needs assessment be carried out. The Council did not explain why it did not follow this advice and carry out the EHC needs assessment in mid-2022 and did not action the referral for s.19 education until November 2022.
72. The Council told me the School was concerned Ms X was not supporting her child to take medication provided and that the School had offered reasonable adjustments which Ms X had declined. The Council says as soon as it received further medical evidence supporting non-attendance it arranged alternative education.
73. The Council says it has provided only four hours of tuition per week to re-engage Ms X’s child in education and to assess their ability to manage more hours. When reviewed it decided there ‘was evidence that the two sessions were a challenge… therefore no increase was deemed appropriate, this was agreed with the parent’.

Analysis

Fault

74. Ms X says the Council knew about her child’s absence in Autumn 2021. The EWO documents provided to me only go back to February 2022, but Ms X says she clearly recollects speaking to the Council’s EWO in early December because it was the same day she had an important medical appointment.
75. Ms X also sought help from the Early Help team in January 2022.
76. Statutory Guidance says Councils should be ready to take responsibility for any child whose illness will prevent them from attending school for fifteen or more days. The Council should have investigated the situation as soon as it became aware. Failure to do so was fault.
77. The Early Help team should have referred the case to the relevant team to make enquiries about the absence when Ms X sought support. The Council has a named officer responsible for children with health needs for this purpose. Failure to do so was fault.
78. The Early Help team should have completed an Early Help plan setting out what additional support was required, and followed this up to ensure it was successful at re-engaging Ms X’s child in school. This did not happen and was fault. Early Help officers seemed unclear about the threshold for their service where the underlying problem was education.
79. There will be cases where there is doubt whether a child is too ill to attend school or whether the issue is non-attendance. Caselaw has been clear this is a matter for the Council to determine, and councils cannot delegate the s.19 duty to schools. The Council was not obligated to accept the view of the School, or indeed the view of a medical expert. The Council’s role was to choose whether to require attendance at school or provide the child with suitable alternative provision. The Council should have made this decision in in late 2021/ early 2022, not November 2022. This delay was fault.
80. It was not for Ms X to pay privately for consultant reports to get evidence to support medical absence. The Council was obligated to decide whether s.19 education was required, regardless of whether medical evidence was available. It should not have insisted Ms X obtain evidence at her own expense or delayed s.19 education until more evidence was obtained.
81. When the Council did decide to provide s.19 education it only provided four hours tuition per week. This is not suitable fulltime education. There was no medical evidence to support restricting the amount of education Ms X’s child could manage to less than fulltime and no medical reasons are recorded in the panel’s notes to justify this amount. It is correct Ms X’s child had a setback in February 2023, when she suffered a seizure, however I do not agree this is evidence the child could only manage four hours education per week prior to that or indicates the tuition should have remained at that level since. I have seen no evidence Ms X agrees with just four hours tuition being provided. Ms X has requested online tuition in the past when her child was struggling with direct tuition.
82. I have not seen evidence Ms X refused to return consent forms for GP records. Ms X says she did send the form. However, the absence of GP or other medical evidence was not a basis to refuse s.19 education. The Council could have sought other evidence, including from CAMHS and was required to make a decision even if medical evidence was not available.
83. I have seen no evidence concerns about medication or engagement with what the school was offering was a factor in the School’s decision to mark the absence as unauthorised. The School told me it believed medical evidence was essential for it to mark the absence as authorised and it could not request alternative education without this evidence. I have also seen no evidence concerns about medication or family engagement were a factor in the Council’s decision making at the relevant time. The Council told me it arranged the education as soon as it received the referral together with medical evidence in November 2022. The fault was in the Council only considering s.19 education when the School had submitted a particular form with medical evidence, rather than when Ms X first contacted the Council, and in requesting more evidence in Summer 2022, before agreeing provision in November.
84. There is no evidence the School and Council worked together with the family, in line with the approach set out in statutory guidance, to try and remove barriers to attendance or provide support (by early help, an EHC plan or other measures). No Early Help plan materialised and the EHC needs assessment recommended by the private medical professional was refused.
85. I cannot investigate the Council’s reasoning in declining the EHC needs assessment. Ms X appealed this decision to the SEND Tribunal. As Ms X has used an alternative legal remedy this places the matter outside the Ombudsman’s jurisdiction. (Local Government Act 1974, section 26(6)(a), as amended) The Council issued a draft EHC plan in May 2023 but has not yet issued a final EHC plan. If Ms X disagrees with the suitability of provision or the placement in the final EHC plan she will gain a new right of appeal, which we would expect her to use.
86. Social care failed to input into the EHC needs assessment. This was fault. Every EHC needs assessment requires social care to consider if there are unmet social care needs. Given the child had been out of education for nearly two school years, and was socially isolated, it is difficult to see how a social care assessment was not merited in 2023. The EHC plan also failed to detail the Early Help assessment or outcome. This was fault.
87. Parent carers are also entitled to an assessment on the appearance of need. Ms X clearly stated in January 2022 she needed respite due to her illness and her child being out of school.
88. The Council should have carried out an assessment of Ms X’s needs as a carer and her child as a potential child in need in January 2022, and subsequently, including during the 2023 EHC needs assessment. Failure to do so was fault.
89. Ms X’s child would meet the definition of having a disability for the purposes of Equality Act. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on the grounds of disability. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The Council’s duty to ensure equality of access to education was engaged and the Council should have had this in mind when considering whether to provide education under s.19 and how much education to provide.

Injustice

90. I find that Ms X’s child has missed out on two school years of education. I acknowledge there was a period in September / October 2021 when the Council was not aware and so could not have acted. However, Ms X’s evidence is that the Council was aware in October / November 2021. I have also found the Council’s Early Help team was aware in January 2022. I find the Council should have decided whether to enforce attendance or provide s.19 education no later than the end of January 2022.
91. While tuition did start in January 2023, this was only four hours per week. There was no evidence supporting restricting education to less than fulltime. This was fault.
92. Our remedies guidance recommends a financial payment of £900 to £2400 per term for missed education depending on what education was provided, stage of education and if the child has special educational needs.
93. I also find there was a lost opportunity to consider if social care support was required during this period. Ms X’s child became socially isolated and Ms X had to manage additional caring responsibilities alongside a serious health condition. I cannot say with any certainty that social care support such as short breaks would have been offered, but the loss of an opportunity to have this considered is itself an injustice.
94. Ms X was put to additional cost obtaining private medical evidence to ensure she was not prosecuted for non-attendance when the Council should have gathered available evidence itself.
95. Ms X was also put to unnecessary time, trouble and distress over a prolonged period trying to get suitable education and support for her child.

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Agreed action

Within four weeks of my final decision:

96. The Council will apologise to Ms X and her child for the fault and injustice caused.
97. The Council will refund Ms X the cost of the private medical advice she sought to support her child’s non-attendance.
98. The Council will pay Ms X a symbolic payment of £10,000 to recognise the impact of lost education on her child from January 2022 to July 2023 (five school terms). Ms X may use this as she fits for her child’s educational and social needs. This reflects no education was provided between January and December 2022, and minimal education thereafter. It takes into account there were times when Ms X’s child was too unwell to access the provision offered.
99. The Council will pay Ms X £1000 for the distress, her time and trouble, and to acknowledge the lost opportunity to receive social care support over this period.
100. The Council will investigate why the early help assessment in this case did not result in an early help plan or any follow up action and why social care did not participate in the EHC needs assessment. The Council should share any learning from the outcome of this investigation with relevant officers.
101. The Council will offer Ms X a child in need and carer’s assessment. This should not delay the final EHC plan being issued.
102. The Council will discuss the current level of tuition with Ms X, the tutors and other relevant professionals and consider if it can be increased. It should provide a decision in writing, with reasons, to Ms X sharing any evidence it has relied upon.

Within three months of my final decision:

103. The Council will review its information, training and guidance for schools and officers about attendance and s.19 education, taking into account the recent Statutory Guidance about improving attendance and absence due to mental health needs. The Council should ensure it has a clear referral process so that it is able to make decisions whether to enforce attendance or provide s.19 education at the earliest opportunity. The Council should highlight that lack of medical evidence does not prevent a school marking the absence as authorised or allow the Council to fail to decide whether s.19 applies.
104. The Council will provide us with evidence it has complied with the above actions.

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Final decision

105. I have completed my investigation. The Council failed to provide alternative education when a child was unable to attend school for mental health reasons. This led to a loss of education spanning two years. I am satisfied the agreed

106. actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman