Summary: Mr B complained the Council did not support his child with education during the 2022 / 23 academic year. We found fault because the Council’s medical support panel did not take account of all relevant information known to it, or else that it could have obtained. It also failed to tell Mr B that it refused a request to carry out an education, health and care needs assessment. We consider these faults caused injustice as Mr B’s child did not receive additional support with his education when recovering from a major operation. Mr B also suffered distress. The Council has accepted these findings and at the end of this statement we set out the action it has agreed to remedy his injustice and make service improvements for the future.

The complaint

1. I have called the complainant ‘Mr B’. He complains the Council did not support his child, whom I will call ‘C’, with access to education after September 2022.
2. Mr B says as a result C missed a significant part of their secondary education and has become more isolated from their peers.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), 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. Before issuing this decision statement I took account of:

• Mr B’s complaint to the Ombudsman and any supporting information he provided;
• correspondence exchanged between Mr B and the Council about the matters covered by the complaint, which pre-dated my investigation;
• information provided by the Council in response to my enquiries;
• information provided by a school C attended until June 2023;
• relevant Council policies referred to below, and relevant law and Government guidance about school attendance and special educational needs;
• relevant guidance published by this office referred to in the text below and available online.

10. I also gave Mr B, the Council and the school C previously attended, an opportunity to comment on a draft version of this decision statement. I took account of their comments before finalising the decision statement.

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What I found

Relevant law and guidance

Alternative provision

11. 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 section 19 or alternative education provision.
12. 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)
13. 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
14. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ gives advice on what councils should to if specific medical evidence is not available quickly. For example, such as that provided by a medical consultant. It says they 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”.

Education, Health and Care Plans

15. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. 
16. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
17. The Code says that when deciding whether to undertake an EHC needs assessment, the Council must have regard to the views, wishes and feelings of the child and their parent.
18. There is a right of appeal to the SEND Tribunal if the Council decides not to carry out an EHC needs assessment. The Code says that if a Council decides not to conduct an EHC needs assessment it must inform the child’s parents of their right to appeal that decision.

Relevant Council policy

19. During the events covered by this complaint, the Council had a medical needs policy, published in August 2021. This set out the following core principles:

• that a child’s health should not create a barrier to their education. Pupils who could not attend school because of a medical condition could usually continue learning at least some of the time and should receive support to do so;
• that wherever possible that support would aim to support the child in their school alongside their peers.

20. The policy said schools should tell the Council if a pupil became absent for more than ten days. It explained that schools should have their own policies to provide reasonable adjustments for those pupils who need them. It said the Council could provide advice and support services to schools in individual cases.
21. The policy detailed how schools should approach cases of emotionally based school avoidance (EBSA). It set out a five-stage ‘pathway’ for supporting such pupils, of which the first three steps outlined strategies to support such pupils within school. Step four then involved consideration of the case by a “multi-disciplinary EBSA panel”. While step five said the panel would agree the extra support needed, which could include a hospital school ‘intervention placement’. If such intervention took place the pupil would have dual registration at their own school and the hospital school. It said intervention would always aim to reintegrate a pupil back into school, although this may sometimes involve a change of school.
22. The policy then went on to consider the needs of children with physical health needs. The policy said where pupils were missing from education for 15 days or more, their school should make a referral for dual registration with the hospital school. This included cases where a pupil may face invasive surgery. Once referred, the policy said the hospital school would contact the family, the pupil’s school and consider their individual needs. The policy said the Council’s Pupil Referral Team (PRT) would screen all such cases and that it had a ‘Hospital Referral Panel’ which met weekly.
23. Separately, the Council also published information about its Medical Support Panel (MSP). It described this as a multi-agency panel helping the Council decide how to support individual pupils with suitable education in line with its Section 19 duties.
24. It said schools made referrals to the MSP and it cross-referenced the approach set out above for how schools should tackle EBSA. It said schools must provide ‘robust evidence’ for the work undertaken with pupils. It said the MSP would then “advise what further steps, strategies and support the school can and should be robustly implementing to ensure continued access to education”. This could include a short-term intervention by the hospital school.
25. The MSP form used by schools allowed them to select whether a pupil needed support because of physical health needs or EBSA.
26. In response to my enquiries, the Council said the MSP was a ‘streamline’ of the EBSA panel and the hospital school panel referred to in its medical needs policy. I take this to mean, that from its beginning the MSP performed the role of both panels. The Council told me it was reviewing its medical needs policy and during this investigation it published a new version online.
27. The revised policy restates the principles above, with explanatory sections setting out why the Council wants to support pupils to remain in school and what schools can do to support this. The policy goes on to explain the Council expects schools to follow its EBSA pathway to support those not attending school because of anxiety or other mental health reasons. It provides more detail about the EBSA pathway and the steps it expects schools to follow. It explains that schools can still refer pupils to the MSP which will review the approach they are taking. The MSP can still refer to the hospital school in the way the EBSA panel did previously, if considered necessary.
28. The revised policy also explains how the Council will seek to meet its Section 19 duty for pupils who have physical health needs. It says this includes those who “have had major invasive surgery”. It says school referrals must include “detailed medical evidence from an appropriate medical professional leading on the treatment for the pupil”. They should also “demonstrate the pupil is unable to access suitable education at their school”.
29. The policy says where it discusses the needs of such pupils at its MSP, that it will “usually […] seek to further support and reinforce the school's own arrangements. This will help the school's ability to maintain the pupil at their substantive school.” But one step the MSP can also take is to refer the pupil to the hospital school.

Chronology of key events

30. The beginning of events covered by this complaint is September 2022 when C began Year 10 of their education. C lived with their mother. Mr B and C’s mother are separated but Mr B takes an active interest in C’s life and education.
31. In 2021 C received a diagnosis that they have a health condition which will impact on them for life. The condition affects C’s appearance, making them self-conscious in front of peers. In September 2022, the Council had only limited prior awareness of C’s additional needs. It did not know C’s condition had impacted their attendance at school.
32. In Autumn 2021 C had significant surgery. This had not succeeded as hoped and by Summer 2022 they faced the prospect of further surgery, more invasive than before. C’s mother told the Council about this in September 2022. The Council explained its procedure for how it provided support for children too ill to attend school and how C’s school could refer C’s case to the MSP.
33. Then, in October 2022, Mr B contacted the Council wanting to know more about the procedure for referring a case to the MSP. Mr B also explained C faced impending surgery which would require a lengthy recovery period. At the time the anticipated date of the surgery was the middle of the month, although because of a postponement it did not happen until November. Mr B also explained C had missed a lot of school due to the impact of their condition on their physical and mental health.
34. In October 2022 the school completed a MSP referral form. It said C needed support because of physical health needs. The form also said that C had some social, emotional and mental health needs because of their complex medical history and there were previous “long periods of absence”. The form recorded that C had a negative view of school and it had concerns about how they “felt coming into school each day”. It said their current attendance was 33%, having been at 52% in Year 9. The school provided details of C’s medical diagnosis and a large volume of letters detailing this including appointments C attended over the preceding years. It also included letters from education professionals which referred to C’s mental health.
35. The Council’s MSP considered C’s case at the beginning of November 2022. It decided C’s school had not provided enough evidence to support a referral to the hospital school. It said that C’s absence from school was a question of choice. It made a series of recommendations to C’s school focused on providing support for C with their social, emotional and mental health needs. It communicated this decision to the school by email the following day.
36. Around a week later, Mr B got back in touch with the Council. He sent it a letter from C’s consultant paediatrician explaining the detail of C’s impending surgery, which would be invasive involving a team of three surgeons. It said C would probably be in hospital for one to two weeks. The letter said: “the holistic recovery after such an operation may take months”.
37. The Council says it told Mr B to give the letter to C’s school and to advise it to make another MSP referral.
38. In early December 2022 a Council officer discussed C’s case with the school. It says the discussion did not suggest it was not “reasonably practicable” for C to attend school. Its note of the meeting refers to C’s recent surgery and that it asked the school for “clarity on recovery period and expectations with regard to education”. It also recorded the school telling it that it was following the EBSA pathway recommended by the Council.
39. The school says this note does not encompass the full breadth of the discussion it had with the Council. It says that it expressed concerns that its efforts to support C with their attendance were not working and that it could no longer keep C safe at school due to their physical health needs. It understood the Council accepted C probably needed support from the hospital school. It sent an email to Mr B saying that, shortly after the meeting. It says the Council advised it to resubmit an MSP referral, but with less supporting information than before.
40. In January 2023 the school therefore made a second referral to the MSP. C’s school said it was “requesting post operation care for C from the hospital school due to long periods of medical absence and support for C moving forwards”. The school re-submitted much of the information it provided previously. It also provided a chronology document which detailed the major surgery C underwent in November 2022.
41. A form accompanying the MSP referral listed a series of interventions made by the school to support C’s education. These included measures taken in the classroom as well as referring them to online studies and making home visits. However, it is not recorded when these services were offered or the extent to which C accessed them.
42. Before C’s case returned to the MSP the Council checked with the school it had further medical evidence around C’s ongoing absence from school. The school told the Council it understood C was “still recovering” and that it was taking this on parental advice.
43. The MSP again decided not to refer C’s case to the hospital school. It recorded that it “felt unable to fully assess the case due to a lack of current medical evidence following on from the most recent surgery at the end of 2022”. It said without new evidence the outcome from the previous referral remained “relevant”. It said if it received new evidence within two weeks it would “act accordingly without delay”.
44. The Council told C’s school of this decision the same day and one of its officers spoke to it shortly afterwards. The Council’s note says it asked the school to provide clear medical evidence for C’s continuing absence. The school says that in its conversation with the Council it again said it did not think the school building a safe environment for C.
45. In mid-February 2023, Mr B contacted the Council. He said that C was off school but due to return after the Easter break.
46. In early March the Council contacted the school to check if it had any update on C’s attendance. Shortly afterwards the school sent it a letter from a member of the clinical team supporting C. The letter provided background on C’s condition and said the diagnosis impacted on their mental and physical health. It said C was “still recuperating” after surgery and recovery “may take months” involving both physical healing and “emotional recovery” following “such an invasive procedure”.
47. The Council said this letter did not provide evidence that C’s school was not providing access to a suitable education that it was “reasonably practicable” for him to access. It advised the school that it could make a further referral to its MSP. It said that if it did so it would want detailed information on the measures it had taken to implement its recommendations made in November 2022.
48. In April 2023 Mr B made a complaint the Council was not providing C with education under Section 19 of the Education Act. The Council replied at the beginning of May. In its response it explained its procedure for considering cases at the MSP and its decisions taken in this case.
49. In May 2023 Mr B contacted the Council again, still concerned for C’s limited access to education. C was attending school but only for a limited time of an hour or two a week. In response the Council again contacted the school, which told it that in accord with advice from the hospital treating C they were on a part-time timetable and being supported to return to school.
50. Meanwhile, Mr B had escalated his complaint to stage two of the Council’s complaint procedure. He wanted to know more about the information provided to the Council by the school because he could not understand why C had not received education for several months. In its response the Council did not revisit events in November 2022 which led the MSP to give advice to the school. But it offered to undertake a meeting with Mr B and the school to discuss C’s case.
51. The Council went on to arrange this in June 2023. But shortly before it was due to take place, the school told the Council that C’s mother had withdrawn him from school. In future she would electively home educate him.
52. In June 2023 the Council received a referral to consider if it should undertake an education, care and health needs assessment for C. In July 2023 the Council decided not to assess his needs. Mr B knew of the request for an assessment and helped C complete a form setting out their views. But the Council did not consult Mr B for his views. It also did not tell him of its decision not to assess.
53. C’s mother continues to home educate C. The Council says it has made checks to ensure they receive a suitable education. Mr B remains concerned at C’s absence from school.

Findings

54. I explained above that we will not criticise decisions made by the Council which it has taken without fault. A decision taken without fault is one that properly takes account of relevant information and does not take account of anything irrelevant.
55. Applying the above to this case, I have a concern about the decision taken by the Council in November 2022, not to offer additional support to C. I did not find the information given to its MSP by C’s school easy to follow. It clearly alerted the Council that C had experienced problems attending school over the previous twelve months. But it did not fully explain why. And I cannot see that it explained:

• what absences related to C’s anxiety attending school or were due to the physical impact of their condition (such as time off for their first operation);
• what attempts it had made to support C’s attendance at school or access to education;
• that C was shortly to undergo major surgery.

56. However, the Council considered this information in isolation from the conversations it had with both C’s parents. Had it referred to those then it would have known C had impending major surgery. Its response to the school focused on the evidence showing much of C’s absences related to anxiety. But it also knew C faced time off school for a different reason. I accept it did not, at the time, have many details of this. Yet had it taken account of this information, it could have better tailored its advice to the school.
57. The Council was at fault therefore for looking at the MSP form and supporting evidence in isolation from its own records.
58. However, I do not consider any significant injustice arose from this fault. Because I do not consider it would have decided C needed Section 19 support at that time. This is because the referral and supporting papers suggested the primary driver of C’s non-attendance at school over the preceding 12 months was because of anxiety and mental health needs. So, the Council would always have wanted to provide the school with advice targeted at supporting C with those needs.
59. The next key action was around 10 days after the MSP’s first consideration on C’s case, when the Council received new information from Mr B enclosing a letter from C’s consultant. This explained C faced major surgery with a long recovery period possibly lasting ‘months’.
60. Shortly after this the Council also met with C’s school. Its note shows the school also told it about C’s surgery. The Council says that this meeting did not indicate that it was not “reasonably practicable” for C to access education. But the note does not record some key information, including:

• what attempts the school was making to meet C’s education needs post-operation;
• what progress it had made in carrying out the recommended actions of around four weeks earlier.

61. I note the school says these matters were discussed and that it set out concerns about the safety of the school building for C. While I cannot make a finding about exactly what was said at the meeting, the school’s account suggests the Council’s record was incomplete.
62. I consider the meeting contained potentially helpful information for the MSP. But this was omitted from its considerations along with:

• the letter Mr B had provided it from C’s consultant;
• the detail of its discussions with Mr B and C’s mother.

63. The Council therefore restricted its consideration to the MSP form only, without introducing its wider knowledge of the case. That was a fault.
64. Had the MSP considered all relevant evidence then it would have appreciated:

• that C had recently undergone major invasive surgery;
• that recovery would take weeks or months;
• that they were not attending school.

65. I accept all of this does not necessarily mean the Council had to meet the Section 19 duty. But it did have to ask if C had education available that was ‘reasonably practicable’ for them to access. The Council had some information suggesting the school had made efforts to engage C in education, but I cannot see it knew the position at that point in time. I also consider it needed to take account of the evidence suggesting C’s school had not met its expectations of it. For example, that it had not alerted it before October 2022 to C’s long periods of absence from school.
66. In these circumstances I find further fault in the Council’s lack of curiosity or urgency in finding out more detail about C’s circumstances. It did not revert to the school to clarify what attempts it was making to ensure C’s access to education. It did not seek more information about C’s circumstances from other sources. For example, approaching Mr B or C’s mother to clarify what stage C’s recovery from surgery had reached or what the school was doing to support them. It could also have considered contacting C’s consultant or GP to check if C was too unwell to attend school.
67. The Council then missed a further opportunity to reconsider the position in mid-February 2023 when Mr B alerted it that C was still off school. Again, I detect no curiosity by officers to discover if C had education that was “reasonably practicable” to access. Similarly, in its response to the further letter it received from C’s clinical team in March 2023.
68. These faults reveal flaws in the Council’s current approach to considering whether it needs to make alternative provision available to pupils not in school. It is understandable and desirable that it puts an onus on schools to try and tackle absences and provide it with evidence of the same. But this cannot come at the expense of the Council neglecting its Section 19 duty. The needs of the child must be central to the policy. It is desirable that it has pathways to avoid children being out of school. But it must also address what to do if a school, over which it has no governance control, chooses not to follow the pathway or else where it is uncertain what support the school provides.
69. I have gone on to consider the consequence of the Council not properly considering evidence relevant to its decisions about Section 19 provision. I consider had it done so, it would have ensured C received access to education between the start of December 2022 and the end of April 2023 when they were out of school. On balance I find C was off school in that period mainly because they were recovering from surgery. While the school provided some evidence showing strategies to support C’s access to education, it is unclear these related to this time period as opposed to their earlier absences.
70. After that, I consider a closer attention by the Council to C’s case may also have benefited them in the summer term 2023. As while the evidence shows the school made some provision for C, there is nothing to show whether this was sufficient to meet their needs.
71. I cannot take a view on C’s education beyond June 2023 when they began elective home education. I recognise Mr B’s concerns about this. But it is a parent’s right to choose to educate their child at home and I have no reason to doubt the checks made by the Council about its suitability.
72. However, the Council was at fault for failing to consult Mr B when it considered undertaking an EHC needs assessment for C. I do not propose to take a view on the merits of that decision. But before taking it the Council failed to find out Mr B’s views on whether he would support an assessment and gather his views of his child’s needs. It then also failed to tell him it had decided not to undertake an assessment.
73. All of this causes injustice to Mr B as distress. Because the Council cut him out of decisions affecting his child and he lost an opportunity to pursue a possible route for C to have a plan targeted towards his specific needs.

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Agreed action

74. I have identified fault by the Council causing injustice to Mr B and C. The Council accepts this finding. In line with our published guidance on remedies, I have recommended action I want the Council to take to remedy this injustice, which it has also agreed. So, within 20 working days of this decision, the Council will:
1. provide an apology to Mr B in line with section 3.2 of our guidance on remedies;
2. make a symbolic payment to Mr B of £2250 to reflect the loss of education provision to C. Of this, £1500 is to reflect the absence of education for the spring term of 2023 and £750 to reflect that missed before and after that term and before C began elective home education. This money is to be used to support C to make up for the loss of education provision;
3. make a symbolic payment to Mr B of £300 to reflect the distress caused by his loss of opportunity to contribute his views, or to appeal, when the Council considered undertaking an EHC needs assessment for C;
4. arrange a meeting with Mr B to discuss his current concerns for C’s education and potential options moving forward, including how he can request fresh consideration of an EHC needs assessment for C.
75. In addition, I want the Council to make service improvements to try and avoid a repeat of the faults found in this case. Within two months of a decision on this complaint the Council will:
1. ensure that it has introduced a process to consider if it holds other information relevant to a MSP referral, not included on the referral form sent by the school. Also, to ensure that relevant information is put to the panel as part of its discussion. For example, panel members should know of relevant contacts from parents or professionals working with the child;
2. brief MSP panel members to make them aware of our expectations of what the Council must do when considering if it needs to make provision under Section 19. In particular, the Council must know what provision a school is making for a child before deciding if that is reasonably practicable for that child to access;
3. write to the Governing body of C’s former school clarifying its expectations when it comes to reporting pupil absence, its medical needs policy and the completion of MSP referrals. It will also offer a meeting with the school to discuss those matters.
76. We will expect the Council to provide us with evidence it has complied with the above actions.

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Final decision

77. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr B and C. The Council has accepted this finding and agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman