Summary: Mrs X complained the Council failed to provide alternative education to her child, C, when she was unable to attend school due to health reasons. The Council was at fault because it failed to consider its statutory duty to provide alternative education, and this caused uncertainty and distress to Mrs X and to C. To remedy their injustice, the Council will review the education C is receiving, apologise, pay Mrs X £2350 and review the relevant policy and process.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains the Council failed to provide her child, C, with alternative provision when she was unable to attend school due to ill health.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 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

5. I considered Mrs X’s complaint and the information she provided.
6. I considered the information I received from the Council in response to my enquiries.
7. Mrs X and the Council were given an opportunity to comment on a draft of this decision. I considered their comments before making this final decision.

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What I found

Law and guidance

Alternative provision

8. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them” (Education Act 1996, section 19(1)).
9. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have (Education Act 1996, section 19(6)).
10. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
11. The education provided by a council must be full-time unless a 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)
12. 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 mind? How councils can do more to give children out of school a good education, published in 2016).
13. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that 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;
• decide, based on all the evidence, whether to require attendance at school 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 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.
14. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
15. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
16. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

The Council’s Policy on access to education for children and young people with medical needs

17. The Council’s policy recognises that the Council has the responsibility to arrange education provision for medically referred pupils. It also says that the home school of the child has a clear responsibility to adopt effective and appropriate strategies central to the needs of the child, for them to be educated and included in school. The Policy says the Council challenges and supports schools in this regard.
18. The Council expects schools to coordinate multi agency planning by using a Team Around the Family (TAF) assessment.
19. For the Council to arrange alternative provision, its policy requires schools to make a referral to the Council’s Education Access Team. It requires schools to obtain medical evidence with the referral but it will not accept supporting evidence from a GP alone.
20. The referral is then considered at a fortnightly Case Planning Meeting. If the referral is accepted, then an Education Access Officer is assigned as case manager.

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What happened

21. Mrs X has a child, C, who stopped attending school in July 2022 due to a mental health condition. In September 2022 the school became concerned about C’s attendance and sought advice from the Council. The Council suggested a referral to Child and Adolescent Mental Health Service (CAMHS) and for the school to have a discussion with Mrs X about the support and adjustments it can offer to help C with her anxiety. It was also advised that a discussion be had with Mr and Mrs X about a change in schools because C was not attending due to her anxiety about entering the school building and a different school could enable a fresh start for her.
22. The school requested medical evidence of C’s health condition. The school was provided with information from C’s GP which confirmed her diagnosis of anxiety, that work with CAMHS had begun and advised that it should continue.
23. Mrs X contacted the Council in October 2022 and requested suitable alternative full time education provision under section 19 of the Education Act 1996. Mrs X explained C’s medical condition and the reason why she was unable to attend school. She also submitted case notes from C’s GP that outlined her diagnosis. Mr and Mrs X felt provision away from school would be suitable for C. Mrs X was notified that her request had been shared with the Council’s Education Access Team who would respond to her in due course.
24. Seven weeks after requesting alternative provision, Mrs X complained to the Council because she had not received any communication from the Education Access Team and no alternative provision had been arranged for C.
25. In November 2022, the school arranged work for C to access online at home. Prior to this, C had not received any provision in the academic year so far.
26. In accordance with the Council’s policy, Mrs X requested a TAF assessment from C’s school.
27. In response to Mrs X’s complaint, the Council’s Medical Needs Team contacted her in December 2022 and advised that the Council’s process for accessing alternative education provision was led by the child’s school and the child needs to have a diagnosed medical condition. This was also communicated to Mrs X in the Council’s Stage 1 written response.
28. In the Stage 1 response, the Council said that where a child has a medical condition and is accessing education as much as their health allows, the Department for Education (DfE) advice is that schools should support them with an Individual Health Care plan that looks at how the child’s medical condition can be supported in school through reasonable adjustments or health input. The Council said it would contact C’s school to let them know it had given Mrs X advice around considering if a referral for Medical Needs Education may be appropriate for C.
29. Mrs X requested her complaint be escalated to the second stage of the complaints process because she was of the view the Council was not fulfilling its statutory duty to provide C with education.
30. The Council wrote to Mrs X in March 2023 to advise her that it did not consider it necessary to escalate her complaint to stage 2 of the Council’s Corporate Complaints Policy because “the local authority [was] unable to provide education for a child absent from school due to ill health until the referral [from the school] had been received”. Until a referral is received from C’s school, the Council said it was unable to take the matter further and a stage 2 investigation would not change this. The Council referred Mrs X to the Ombudsman.

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Analysis

31. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. Government guidance on a council’s section 19 duties recommends councils arrange education for a child as soon as possible when it is clear a child would be away from school for 15 days or more. The responsibility for providing suitable education lies with the Council, even when a student remains on roll at a school.
32. Mrs X told the Council on 1 October 2022 that C was not attending school and that she required alternative provision. The evidence shows the Council had been aware of C’s non-attendance since 12 September 2022 when the school requested advice. The Council advised the school about support and reasonable adjustments, but I have seen no evidence the Council considered its section 19 duty or that it contacted the school about alternative provision. I have not seen any evidence the Council properly reviewed the education that was being provided to C and that it took steps to ensure she had a suitable education in place. This is fault.
33. I would have expected the Council to have contacted the school within a month of being aware C was not attending and to have assured itself that a suitable education was available to C by mid-October 2022.
34. The Council’s response to Mrs X and the Council’s policy demonstrates the Council will not consider alternative education until it receives a medical referral from the school with medical evidence, not from a GP alone. The Council is clear in its approach that it will not consider alternative provision until it receives a referral from the relevant school with medical evidence from a consultant. This is fault.
35. Local authorities must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. The Council must look at the evidence for each individual case, even when there is no medical evidence, and make their own decision about alternative education (DfE Summary of responsibilities where a mental health issue is affecting attendance, Feb 2023). Therefore, the Council’s failure to consider C’s individual case is fault.

The injustice caused by the identified faults

36. C did not receive any education from September 2022 until mid-November 2022 when the school provided some work online. From mid-November 2022 to July 2023, C has received some provision from the school. I have not seen any evidence the Council had ensured this provision was full time or that it assessed whether C could manage more.
37. I cannot say the extent to which C would have engaged with alternative provision had it been arranged. However, the identified faults have caused uncertainty over whether C received appropriate education provision from October 2022, and this has caused Mrs X distress and frustration.

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Agreed action

38. To remedy the injustice caused by the faults, within four weeks of this final decision, the Council will:
• Consider its section 19 duty and review the level and suitability of provision C is receiving;
• Apologise to Mrs X and C for failing to consider its section 19 duty and make a payment of £300 to acknowledge the uncertainty and distress this caused;
• Pay Mrs X £450 to recognise the impact on C when she did not receive any education (September 2022 – Mid November 2022). Mrs X will use this for C’s educational benefit as she sees fit; and
• Pay Mrs X £1600 to recognise the impact on C of the lack of suitable education she received from mid-November 2022. Mrs X will use this payment for C’s educational benefit as she sees fit.
39. The Council has also agreed, that within three months of this final decision, it will review its policy and processes to ensure that where it is aware that a child is not attending school, it considers each individual case and its section 19 duty in accordance with relevant law and guidance.
40. The Council will provide us with evidence it has complied with the above actions.

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Final decision

41. The Council is at fault for not considering its statutory duty to provide alternative education to C. The Council has agreed to remedy the injustice caused and make service improvements. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman