Summary: Mrs X on behalf of her daughter Miss Z, complained the Council failed to provide suitable alternative education when she was unable to attend school due to illness. The Council failed to consider what education Miss Z could manage and failed to provide alternative provision for a year affecting Miss Z’s mental health and causing her to fall behind her peers. An apology and a financial remedy for the uncertainty is agreed.

The complaint

1. Mrs X, on behalf of her daughter Miss Z, complains the Council failed to provide suitable alternative education from June 2021 when Miss Z, was unable to attend to school due to illness.
2. Mrs X says her daughter’s mental health has suffered as a result of missing schooling and falling behind her peers.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

7. As explained at paragraph three above, the Ombudsman expects people to complain within 12 months of knowing something has happened which affects them. Mrs X did not complain to the Ombudsman until August 2024. However, I have decided to exercise discretion and to investigate matters from June 2021 onwards as Miss X was seriously ill and receiving hospital treatment.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and invited their comments.

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What I found

Inability to attend due to health needs

9. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
10. 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))
11. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
12. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
13. 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))
14. 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)
15. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Key facts

16. This section sets out the key events in this case and is not intended to be a detailed chronology.
17. In June 2021, Mrs X’s daughter, Miss Z, was diagnosed with cancer and so was unable to attend school. Due to concerns about the family, the Council completed a Child and Family (CAF) Assessment in August 2021. It noted that Miss Z’s school attendance had been excellent until her cancer diagnosis, and she had only missed a few weeks schooling. The Council says this was not surprising given Miss Z’s diagnosis and there were no significant concerns. A second CAF assessment was completed in February, but Mr and Mrs X did not give consent for the Council to contact the school.
18. An initial Child in Need (CIN) meeting took place in January 2022. in place. This shows that the focus was on finding a way to ensure Z received the necessary medical treatment as this was not happening. The school attended this meeting and there was a discussion about Miss Z’s exams later that year. It was noted that if Miss Z was unable to take her exams, she would have the option to repeat year 10.
19. At a CIN meeting on 28 February, the school reported that Miss Z had not been at school since last summer. While Mrs X expressed that she felt unsupported and that there had been minimal communication, the school said it had provided revision books.
20. Mrs X requested a special educational needs assessment in June 2022. The Council declined the request and so Mrs X appealed to the Tribunal. An EHC Plan was issued in July 2023.
21. In September 2022, a referral was made by the hospital schoolroom to the Council’s education support for medical absence (ESMA) service. Because the referral was made after Miss Z had reached the end of compulsory school age in July 2022, she was not eligible for support.

Analysis

22. Miss Z did not attend school from June 2021 until September 2023 following a cancer diagnosis which required significant hospital treatment including a stem cell transplant. The information provided indicates that Miss Z was left with anxiety as a result of the cancer treatment and this contributed to her school absence.
23. The Council knew in August 2021 that Miss Z was not attending school. Where it is clear a child will be away from school for 15 days or more (either consecutively or cumulatively) councils should liaise with medical professionals to ensure there is minimal delay in arranging appropriate provision where required.
24. While I appreciate that at that time the pressing issue was ensuring Miss Z received lifesaving treatment, the Council also had a duty to ensure Miss Z received a suitable full-time education. I have not seen any evidence to suggest the Council properly considered its duty to provide Miss Z with a suitable full-time education from August 2021. This is fault. By the time there was contact with the Council’s ESMA service, Miss Z was no longer of compulsory school age and so the Council’s duty had ended.
25. Although there is a clear duty on the Council to make alternative education provision, it may decide a child cannot cope with full-time provision. This is especially true when the reason for the absence is medical as in this case. The Council should have spoken with Miss Z’s school and medical practitioners to take a view on what education she could manage. However, I have not seen any evidence which would suggest the Council gave any consideration to what level of education Miss Z could access.
26. I consider Miss Z missed out on education between July 2021 and July 2022. However, I cannot say what level of education would have been provided during this period if the Council had properly considered its duty. I have therefore recommended a symbolic payment for uncertainty in line with our guidance on remedies. I note that in September 2022 the hospital school contacted the ESMA and so I also have to assume Miss Z was receiving some education via the hospital school.

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Action

27. To remedy the injustice caused to Miss Z as a result of the fault identified above, the Council will, within one month of my final decision, take the following action:
• Apologise to Miss Z;
• Make Miss Z a symbolic payment of £500 to acknowledge the uncertainty caused; and
• Issue a reminder to all relevant staff regarding the duty to provide education when children are unable to attend school due to illness.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman