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Cornwall Council (21 004 525)

Category : Education > Other

Decision : Upheld

Decision date : 07 Mar 2022

The Ombudsman's final decision:

Summary: Ms X complained the Council failed to ensure her son, B, received suitable educational provision from October 2020 when he became too unwell to attend school. The Council has largely accepted it was at fault and has offered several remedies, which we find mainly remedy the injustice caused to Ms X and her son, B, who missed out on educational provision. We also find the Council at fault for taking a restrictive view of B’s individual circumstances, which focused on the provision of medical evidence before arranging alternative provision for B. To remedy this, the Council has agreed to apologise to Ms X and make several service improvements.

The complaint

  1. The complainant, who I shall refer to here as Ms X, complains that the Council:
      1. failed to provide her son, B, with suitable full-time education when he became too ill to attend school in October 2020; and
      2. provided her with incorrect information regarding its attendance policy. She says the Council’s Education Welfare Officer incorrectly claimed that she had to provide medical evidence for her son’s school absences, and tried to pressure her into signing an agreement for a part-time school timetable.
  2. Ms X says her son has missed out on the education to which he is entitled. She says the part-time timetable put in place during the autumn term 2020 caused him to question why he had to leave his school in the afternoon when he felt able to stay. She says this has impacted both her and her son’s mental and emotional wellbeing.
  3. Ms X says she has been caused unnecessary distress and incurred costs funding educational activities and resources for her son. She says the fear of being fined or prosecuted because of her son’s absences caused her stress and distress.

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What I have investigated

  1. I have investigated Ms X’s complaint concerning the Council’s actions between October 2020 and 21 January 2021.
  2. The last section of this decision explains why I cannot investigate the Council’s alleged failure to provide alternative education for B during the spring and summer terms 2021. This is because the alleged failure is ‘inextricably linked’ to a placement which was the subject of an appeal to the SEND Tribunal.

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The Ombudsman’s role and powers

  1. 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)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  4. We cannot investigate a complaint if someone has appealed to a tribunal. (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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  7. 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)

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How I considered this complaint

  1. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint.
  2. Ms X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.
  3. 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.

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What I found

What should have happened

Alternative provision

  1. Under section 19 of the Education Act 1996, councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
  2. The Council must provide full-time education. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in their interests. (Education Act 1996, subsection 3AA)
  3. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
  4. The Government’s statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ outlines councils’ responsibilities towards children with medical health needs. It states that councils should not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.
  5. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
  6. The Ombudsman issued a focus report in September 2011, amended in January 2016, “Out of sight…. out of mind?”. This gives guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for councils, including they:
  • 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 in coming to decisions;
  • choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
  • adopt a strategic and planned approach to reintegrating children back into mainstream education where able; and,
  • put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
  1. The Council has outsourced alternative education provision for children with health concerns, including mental health difficulties to the Wave Multi-Academy Trust. Education is provided by the Community and Hospital Education Service (CHES), an academy.

Powers to improve a child’s attendance: the Education Act 1996

  1. Councils and schools can use various legal powers if a child is missing school to improve the child’s attendance.
  2. Parents have a duty to ensure their children of compulsory school age are receiving suitable full-time education. (Education Act 1996, section 7)
  3. A council may take action against parents where it is not satisfied their child is receiving suitable education and the council considers it is appropriate the child should be attending school.
  4. Section 436 of the Act requires councils to identify children not receiving an education.
  5. Section 437 (1) of the Act says that councils shall intervene if it appears that parents are not providing a suitable education. They can serve a notice in writing on the parent asking the parent to show that the child is receiving a suitable education.
  6. Section 437(3) of the Act relates to whether the council considers that it is expedient for a child to attend school. A council might take the view that a child has physical, medical or educational needs which lead to extreme vulnerability in a school setting. Guidance says that in such cases, a council should consider alternatives such as tuition provided by the council itself. (para 6.14, Elective Home Education, Departmental guidance for local authorities, April 2019)

What happened

Scope of the investigation

  1. As explained above, I cannot investigate any part of Ms X’s complaint that is connected with the action of B’s school. This includes decisions made by the school about whether to authorise absences. However, I have referred to certain action of B’s school when necessary to analyse the action of the Council.

Chronology of key events

  1. B is a primary school pupil. During the time period investigated, he was a registered pupil at a mainstream primary school, School G.
  2. In October 2020, B’s mental health deteriorated and his school attendance declined.
  3. B’s school proposed a reduced timetable and measures to encourage B to return to school.
  4. On 21 October, Ms X contacted the Council. She told the Council’s Education Welfare Officer (EWO) that B was struggling at school. She said she was concerned about B’s attendance and any action the Council might take against her.
  5. In November, School G continued to take steps to try to establish a reduced timetable for B that would help him return to school. This was with a view to helping B build up to full time attendance again. Ms X agreed a reduced timetable could possibly help. However, she refused the proposed reduced timetable because she said there were days when B could cope with a full day at school, but was sent home instead. She said this was negatively affecting his mental health and asked for greater flexibility in the proposed timetable.
  6. On 4 December, the Council’s EWO emailed School G. The EWO asked the School to confirm whether Ms X had agreed to the reduced timetable. The EWO asked the School to send clear evidence of what support it was proposing, to make every effort to make sure B had a positive school experience, and review the reduced timetable regularly with a view to building B’s attendance back up to full-time within six weeks. The EWO said she had told Ms X to work with School G to “find a resolution”.
  7. A few days later, Ms X called the EWO. Case notes show:
  • Ms X was concerned because School G had said it expected full-time attendance from B as Ms X had not agreed to the proposed reduced timetable. She was concerned that any absences would be unauthorised by the School;
  • Ms X said she would contact her son’s GP prior to the meeting to ask for something in writing on B’s anxiety and mental health; and,
  • Ms X explained she had not agreed to the reduced timetable as there was no flexibility in the arrangement. She said B would like to stay longer if he was having a good day or arrive later if he was having a difficult morning. The EWO advised Ms X to agree to the reduced timetable.
  1. In mid-December, the Council’s EWO, School G’s headteacher and Ms X had a meeting to discuss B’s attendance. Based on the evidence I have seen, it is my understanding that the Council decided this meeting should take place because School G had made it aware that B had missed ten school days or more and School G had marked these as unauthorised.
  2. On 22 January 2021, the Council issued an EHC Plan for B.
  3. In March, Ms X appealed the placement named in B’s Plan.
  4. In May, the Council sent Ms X its final complaint response.
  5. At the end of June, Ms X complained to the Ombudsman.
  6. At the end of September, the SEND Tribunal upheld Ms X’s appeal.

Analysis – was there fault by the Council causing injustice?

  1. Ms X complains the Council failed to provide her son, B, with suitable full-time education when he became too ill to attend school in October 2020 (part a of the complaint).
  2. Since complaining to the Ombudsman, the Council has reconsidered Ms X’s complaint. It told me that it had not found sufficient evidence that the Council considered its duty under Section 19 of the Education Act 1996 in a timely manner. The Council wrote to Ms X to confirm its acceptance of fault. The Council apologised to Ms X and B, including for the impact this had on B and his family.
  3. In the Council’s apology to Ms X, it offered a financial remedy for the education B missed out on. This remedy covered the spring and summer terms 2021 and came to £2,000.
  4. For the reasons explained in the final section of this decision, I cannot look at any missed education from 22 January 2021 onwards when Ms X’s SEND Tribunal rights were triggered. However, it is positive Council has offered a remedy for this time period and has considered the Ombudsman’s published guidance on remedies when doing so. This is not something the Ombudsman would be able to recommend.
  5. From the Council’s offer, it is not clear when the Council considers it should have considered its Section 19 duty had been activated. Based on the evidence I have seen, including the Council’s response to my questions, I find the following:
  • Between October and early December 2020, School G was taking steps to try to establish whether a reduced timetable would support B’s return to full-time education. On balance, I find it likely the Council did not consider its Section 19 duty had been triggered during this time as it was satisfied with the action the school was taking. This is a decision the Council was entitled to make. Without fault in how this decision was made, I cannot question its content.
  • in mid-December, the Council held a meeting to discuss B’s attendance. At the meeting with Ms X and School G, the Council became aware B was struggling to attend school and it was clear the reduced timetable was not working. Ms X had told the Council in advance of the meeting that B was struggling to attend school because of mental health difficulties. School G had notified the Council that B had missed ten school days or more by this point. I find that it is at this point the Council’s Section 19 duty was triggered and the Council should have promptly put in place suitable educational provision for B. The Council has now accepted it did not do so and this was fault.
  • Given the meeting took place a week before autumn term ended, I find Ms X was caused distress and uncertainty during this time about whether alternative provision would be put in place. The Council has offered Ms X a financial remedy of £500 for time and trouble she was put to raising her concerns. I find this remedies the injustice caused to Ms X.
  • B missed out on three weeks of suitable educational provision from 4 to 22 January, which is the time period I can consider. I consider a payment for £300 suitably remedies this. The Council’s financial remedy offered to Ms X for missed educational provision during this three week time period is, therefore, suitable and is in line with the Ombudsman’s published guidance on remedies (where a range between £200 and £600 per month for lost education is considered appropriate).
  1. In response to questions I asked the Council, it told me that, at the time of the December meeting, there was no medical evidence available that would fit the requirements for a CHES referral. It said B’s GP had not indicated B was unable to attend school. In my view, the Council’s response shows that support for children unable to attend school due to illness is contracted out, and that the gateway to this provision is precisely medical evidence. This is how the Council discharges its section 19 duty in such circumstances.
  2. It is my view that the Council took an overly restrictive view of B’s individual circumstances. This is fault (part b of the complaint). Section 19 requires councils to make suitable educational arrangements for children who because of exclusion, illness or otherwise may not receive an education. Even without definitive medical evidence, the Council has a duty to consider arranging education under the “otherwise” category. By focusing on the need for medical evidence, the Council failed to consider the individual circumstances of the case and consider that it may need to act whatever the reason for absence to provide suitable alternative provision. The Council records show that by the time of the December meeting, the Council did not consider taking action to enforce attendance was suitable because B was going through the EHC needs assessment process. In these circumstances, the Council should have provided B with suitable alternative education (as per the recommendations made in the Ombudsman’s focus report above). This fault caused Ms X further distress. I have recommended the Council apologises to Ms X to remedy this.

Minutes from the mid-December meeting

  1. In comments on my draft decision, Ms X complained about delays in the Council sending her minutes of the mid-December 2020 meeting and inaccuracies in the documents that were sent to her.
  2. I am satisfied the Council fully investigated and responded to this during its stage two complaint investigation. The Council agreed with the findings of the stage two independent person’s report. I find the Council has provided suitable remedies for the fault accepted. It said:
  • the Council accepted certain terminology used in the minutes was incorrect (Child Protection rather than Child in Need) and apologised to Ms X for this inaccuracy;
  • the Council confirmed it would make sure, in the future, officers avoided using potentially confusing terminology, abbreviations and acronyms either in meetings or the notes/minutes of those meetings when sent to parents/carers; and,
  • to avoid confusion, the status of personal notes and minutes, when shared with parents/carers, would be made clear.

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Agreed action

  1. As explained above, I find the remedies offered by the Council suitably address the injustice caused to Ms X and B from the fault it has accepted. This is includes: a written apology to Ms X and an offer of financial remedies of £500 for the time and trouble Ms X was put to and £300 for B’s missed educational provision (covering three school weeks that the Ombudsman can consider). The Council has agreed to make the payments to Ms X within four weeks of my final decision.
  2. Within four weeks of my final decision, the Council has also agreed to apologise to Ms X for the fault causing injustice identified in relation to part b of her complaint.
  3. In relation to service improvements, the Council told me in its comments on the draft decision that the Council has already sent a reminder to staff about when its Section 19 duty is triggered.
  4. The Council has agreed to also take the following action within three months of my final decision:
  • review its guidance to staff on when its Section 19 duty is triggered to ensure the recommendations in the Ombudsman’s focus report above are reflected in this. The Council should consider including guidance on our recommendation that councils should choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education; and,
  • share this decision with relevant staff members.
  1. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

  1. I have completed my investigation.
  2. I have decided to uphold part a of Ms X’s complaint. This is because the Council has accepted there was fault causing Ms X and B injustice. The Council has offered suitable remedies to address this.
  3. I have decided to uphold part b of Ms X’s complaint because there was fault by the Council causing injustice. The above recommendation is a suitable way for the Council to remedy this, which it has agreed to.

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Parts of the complaint that I did not investigate

  1. Ms X complains the Council failed to provide alternative education for B during the spring and summer terms 2021. During this time, the Council issued an EHC Plan for B on 22 January 2021. Ms X subsequently successfully appealed to the SEND Tribunal about the placement named in this. The SEND Tribunal’s order was issued in September 2021.
  2. I cannot investigate this part of Ms X’s complaint. The courts have established that if someone has lodged an appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan, we cannot seek a remedy for lack of education after the date the appeal was submitted if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
  3. This means I cannot investigates matters linked to the SEND Tribunal appeal from the date the appeal right arises, which is the date the final Plan was issued in January 2021, until the appeal was completed at the end of September. I can, however, investigate matters before 22 January 2021.

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Investigator's decision on behalf of the Ombudsman

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