The Ombudsman's final decision:
Summary: Mr X complained that the Council did not do enough to provide suitable education for his son, D, or get him back on the school roll after he withdrew D from school to home educate him. Mr X told the Council he did not want to home educate and had only withdrawn D because he did not think the school could keep him safe from the risk of COVID-19. We find that while the Council made considerable efforts to try and ensure D had a school place, it should have brought matters to a head sooner. The Council was at fault in failing to offer alternative education while it was trying to resolve the matter. The Council has agreed a suitable remedy.
- Mr X was concerned that his son's school would not take appropriate measures to keep his son, who is autistic and has asthma, safe from the risk of COVID-19 from when schools re-opened to all pupils in September 2020. He says the school was not following Government guidance and he felt forced to ask it to remove his son from the roll. Mr X complains that the Council:
- failed to take sufficient action to enable his son to re-join the school roll; and
- failed to ensure his son received a suitable education when he made it clear he did not want to home educate him.
The Ombudsman’s role and powers
- 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)
- If we are satisfied with a council’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)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
How I considered this complaint
- I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, policy and guidance on duties to provide education. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
School attendance and education out of school
- Parents must ensure their child of compulsory school age receives suitable full-time education, either at school or elsewhere. (Education Act 1996 section 7)
- Parents have a right to educate their child at home. When a parent decides to home educate and withdraw their child from school, the school must inform the local authority it is going to remove the child’s name from the register.
- Under the Council’s policy ‘Elective Home Education’, (EHE) when a school receives a written notice from a parent to say they wish to home educate, the Council asks schools to keep the child on roll for a further ten days. This is to allow a ‘cooling off period’ in case the parents change their mind. The Council’s Education Welfare Service (EWS) will discuss the matter with the parents. After the ten days the school can remove the child’s name from the register.
- By law councils do not have to monitor the quality of home education routinely. But they must satisfy themselves that the child is receiving suitable education.
- If it appears to a council that a child of compulsory school age in its area is not receiving suitable education, either by regular attendance at school or elsewhere, it must take action. It must serve a notice on the parents asking for information about the education the child is receiving. This may lead to the council issuing a School Attendance Order requiring the child to become a registered pupil at a named school. (Education Act 1996, section 437)
Fair Access Protocols
- The School Admission Code says that every local authority must have a Fair Access Protocol (FAP), agreed with the majority of schools in its area. This is to ensure that, outside of the normal admissions round, children without a school place, especially the most vulnerable, are offered a place at a suitable school as quickly as possible. Once the Protocol has been agreed, all admission authorities must participate in it. The Code says the operation of the Protocol is triggered when a parent of an eligible child has not secured a place under in-year admission procedures.
- The Department for Education (DfE) guidance ‘Fair Access Protocols: Principles and Process 2012’ says the list of children covered by the Protocol must include:
- children who have been out of education for two months or more
- children with special educational needs, disabilities or medical conditions without an EHC Plan
- “children with unsupportive family backgrounds for whom a place has not been sought”.
- ensure that the educational needs of pupils who are not on the roll of any school are addressed quickly, sympathetically and appropriately;
- reduce the time that pupils who fall within the scope of the Protocol spend out of school;
- ensure that all schools contribute to meeting the needs of pupils who have complex personal and educational needs.
Alternative education for children out of school
- 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. (Education Act 1996, section 19). I refer to this as section 19 or alternative education provision.
- 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)
Impact of COVID-19
- This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
- Schools closed to most pupils, other than children of key workers and children considered vulnerable, in March 2020. They re-opened to all pupils from September 2020. Generally school attendance became compulsory again, with some exceptions. The Government issued a series of guidance notes for schools and councils to prepare them for the re-opening of schools.
- The guidance ‘Actions for schools during the coronavirus outbreak’ outlined measures schools should take to minimise the risk of passing on the infection and keep pupils and staff safe. It also explained the expectations for attendance from September 2020. It said now that the outbreak of COVID-19 was reducing, it was vital for all children to return to school. That meant parents had a responsibility to send their children to school, and councils and schools could take action for non-attendance. It asked schools to work with families to secure regular attendance from the start of term to help pupils catch up on missed education. It noted even children who had been shielding would be expected to return to school.
- However the guidance noted:
- A small number of pupils will still not be able to attend in line with public health advice because they are self-isolating and have had symptoms or a positive test result themselves; or because they are a close contact of someone who has COVID-19.
- Some pupils who no longer have to shield but who generally remain under the care of a specialist health professional may need to discuss their care with their health professional before returning to school (usually at their next planned clinical appointment).
- Where a pupil cannot attend school because parents are following clinical and/or public health advice, schools should offer them access to remote education. In these cases absence will not be penalised.
- pupils required to self-isolate
- pupils who are Clinically Extremely Vulnerable and advised to shield
- during a local or national lockdown.
- Mr X’s son, D, is autistic and has asthma. He was due to transfer to junior school in September 2020. Mr X says D’s asthma is not well controlled, and this has resulted in hospital admissions. Mr X was worried about the risks of D catching COVID-19 which would exacerbate his asthma. He was concerned that because of his autism and anxiety D would find it distressing if he had to attend hospital in an emergency during the pandemic.
- Before D started at the school Mr X had a meeting with the headteacher (who I will refer to as the HT) to discuss measures to keep him safe. The school offered D his own workstation, a personalised integration programme to introduce him back into school life, and staggered start and finish times to reduce the risk and his anxiety. The HT took Mr X and D round the school to show them the hygiene measures in place.
- From that point on there were multiple contacts between Mr X, the school and the Council. I will not detail them all, but will refer to those that are most relevant to my investigation.
- Because of his concerns Mr X did not take D into school. He told the school D was due to have an asthma review in mid-September. Before the review he spoke to D’s GP. He says the GP told him he should err on the side of caution and follow government guidance on keeping two metres apart. The GP said he would mark D down as clinically vulnerable. Mr X says the GP would not provide him with a letter for the school but said the school could contact him for further information. Mr X told the school about the asthma review.
- Over the next three weeks there was a series of email exchanges between Mr X and the school. Mr X explained his fears about D attending lessons in a class of 30 where social distancing could not be guaranteed. His interpretation of government guidance was that D did not have to attend school in these circumstances as he was following clinical advice. He wanted the school to provide work for D, with some individual tuition. The HT’s view was that she had followed the guidance in offering COVID-19 safety measures and a phased return to school. So, given that D was not classed as Clinically Extremely Vulnerable, he should come in to school. She said unless Mr X could provide written advice from the GP that D should not attend school she would mark his absence as unauthorised. She passed the case to the EWS to advise about options.
- Mr X also contacted the EWS to explain the situation. The EWS Manager contacted the school at the beginning of October and advised the HT to mark D’s absence as authorised while the Council looked into the matter. The HT did not agree.
- On 8 October Mr X wrote to the HT to say he wished to withdraw D from the school “in order to take personal responsibility for his education”. He asked the HT to delete D’s name from the register as he was “now receiving education otherwise than at school” and confirm when she had done so. The HT replied confirming she had sent the paperwork to the Council so D could be removed from the school roll.
- The same day the EWS Manager sought advice from health bodies. She also consulted the DfE who suggested a multi-agency meeting for the school, parents, a health professional involved with D, and the Council, to try and resolve the issues. The Council told the school and Mr X it would arrange a meeting, and Mr X agreed to take part. Mr X said although he had decided to home educate he felt pressured into it by the school. He said he did not want the Council to do any more about this at the moment. The Council said it would arrange to get some on-line learning resources to him and the EHE team would contact him. If he changed his mind and wanted D to go back to school he should get back in touch.
- During further correspondence between Mr X and the school, the school confirmed D was off the roll. Mr X wrote to the EWS on 19 October to say he had felt forced into de-registering his son. He spoke to an Education Welfare Officer (EWO) who advised about the ten-day cooling off period in the Council’s policy. The EWO explained if he wanted to withdraw his application to home educate he would need to contact the school. But if the school had already removed D from the school roll he would need to re-apply for a place.
- The EWO contacted the school about the ten-day period but the school said it had already taken D off roll after ten days had passed.
- On 20 October Mr X wrote to the school asking to withdraw his request to remove D from the school register. He told the Council he had done this.
- The Council contacted the school suggesting a virtual meeting to discuss the situation. The HT declined.
- At the end of October the Council wrote to Mr X to advise that as the school had acted on his instructions and removed D from the school roll he would have to take it up with the school if he wanted to complain about this. It asked him to work with the EHE team to get D back into a school when he decided it was appropriate. But the Council would expect D to attend the school identified unless Mr X had medical evidence indicating he could not do so.
- Mr X replied on 1 November setting out the history of events from his point of view. He ended by saying “I would appreciate it if you could facilitate a way of getting D back on roll, be that through the school or via in year application process. I am more than willing to sit down with anyone to get this sorted before the need to escalate further.”
- The following day Mr and Mrs X spoke to the EWO. They said they did not want to home educate but had wanted D to attend school part-time and have some online learning. The EWO advised that the quickest solution was for them to re-apply for a place at the same school. She asked the admissions section to send them a new school application form. She followed this up with an email giving details about how to apply. Mr and Mrs X did not complete the form.
- The EWO also spoke to the HT at the school to advise that the application may go through the Fair Access process and the HT would need to give her view about admitting D.
- Mr X made a complaint to the Council on 19 November. He explained why he felt forced to withdraw D from the school, saying government guidance gave parents the right to consult with a paediatrician before being penalised for non-attendance. He wanted the Council to investigate his concerns and help him find a suitable school which would adapt to D’s medical and emotional needs.
- In the Council’s response to the complaint in early December it repeated that Mr X needed to follow the school’s complaints procedure if he wanted to complain about D being taken off roll. If he wanted D to go back on roll, he needed to complete the in-year application form.
- The Council repeated this advice again in a telephone conversation with Mrs X. It also offered to arrange a meeting with the school to discuss re-applying for a place there. Alternatively, the Council said it could offer guidance on choosing a different school.
- The Council asked the HT for a meeting to discuss getting D back into the school, but she turned down the request. After further discussion with the Council in mid-December, the HT agreed to a meeting. The Council told Mr X. It also told him that if D was on the school register it would expect him to attend as he was not Clinically Extremely Vulnerable and did not meet the criteria for authorised absence for reasons relating to COVID-19. In the course of correspondence with the Council, on 18 December, Mr X said he would not be completing the admission forms.
- On 22 December the Council wrote to Mr X to say the school was willing to have a meeting with him he if intended to apply for a place and accepted the school was following government guidance, and if D would start attending. The Council said they could discuss the details at the meeting and hoped someone from health would also be there. It repeated the advice to complete the school admissions form.
- Mr X replied saying he refused to meet the school because of the ‘unreasonable terms’ attached.
- In mid-January 2021 the HT told the Council she was not willing to have a meeting because Mr and Mrs X had started legal action against the school. After further discussion with the Council the HT agreed to a meeting.
- In further conversations and emails between Mr and Mrs X and the Council during January and early February, Mr and Mrs X said they expected the Council to put D back on the school roll. The Council advised again that they needed to complete the application form.
- On 10 February the Council decided it needed to take steps towards issuing a School Attendance Order. It says this was because by this time the parents had confirmed they were not going to home educate or complete the admissions form. The Council wrote to Mr and Mrs X giving them 15 days to confirm they intended to either:
- home educate, in which case the EHE team would be in touch to discuss the education and satisfy itself it would be suitable; or
- apply for a school place, in which case they would complete an application form.
- Mr X would apply for a place at the school through the admissions process.
- Before D started at the school it would produce a reintegration plan. This would be flexible, discussed with the family, and be reviewed regularly to ensure it was meeting D’s needs.
- Mr X and the Specialist Nurse would need to talk to D’s GP to get clear medical advice about how to manage D’s needs in school.
- They would meet again in mid-March.
Analysis – was there fault causing injustice?
- This was clearly a complex and difficult situation. Mr X had genuine concerns about the risks to D’s health because of the combination of his poorly controlled asthma and his autism. He feels these were borne out by what happened when D started attending school. He and the school took different views of the government guidance. The school believed it had taken appropriate COVID-safe measures. The situation was made more difficult to resolve because of the strained relationship between Mr X and the school. I cannot investigate the actions of the school in taking D off the school roll and refusing to reinstate him. The Council rightly explained to Mr X that he would need to take that issue up with the school through its complaints procedure.
- My role it to consider the Council’s actions. I have looked at what the Council did to try and ensure D received a suitable education once it was aware Mr X no longer wished to educate D at home. Mr X told the Council he had felt forced into withdrawing D from the school almost as soon as he had done so. But at that point he said he did not want the Council to do anything further.
- From 20 October the Council knew D was no longer on the school roll and Mr X wanted a place again. The evidence shows that from that point the Council took considerable steps to support Mr X in gaining a place for D at the school. It:
- contacted the school to see if it would agree to take D back
- sought advice from the DfE
- explained to Mr and Mrs X repeatedly that now that D was no longer on the school roll they would need to re-apply for a place
- sent them application forms and offered to help them with the application or with looking into other school places
- offered to arrange a multi-agency meeting and approached the school
- intervened to get the school’s agreement when it declined a meeting
- advised the school that the application may need to go to the Fair Access Panel.
- The Council has agreed that within one month of the final decision on this complaint it will offer catch-up provision for D to the value of £400. This is to recognise the lack of alternative education for him from mid-November to late December 2020.
- The Council has also agreed that within three months it will review its policies and procedures on children missing education and alternative education. It should ensure these remind staff that the duty to arrange alternative education applies where children are not receiving suitable education for reasons other than illness.
- I have found that while the Council made considerable efforts to get D back into school, it should have brought matters to a head sooner. Also it was at fault in failing to consider or provide alternative education for D while it tried to resolve matters. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
Investigator's decision on behalf of the Ombudsman