The Ombudsman's final decision:
Summary: Mrs X complained that the Council failed to ensure that her daughter, who is unable to attend school for medical reasons, received education after she moved into the area. The Ombudsman finds that despite any failings there may have been by the school, which we cannot investigate, the Council failed in its duty to ensure that the child received any education. The Council has agreed a suitable remedy including a payment to recognise the loss of education and a review of procedures.
- Mrs X complained that the Council failed to ensure that her daughter, who is unable to attend school for medical reasons, received education after she moved into the area. In particular she says the Council:
- delayed in dealing with her application for a school place;
- delayed in taking action to ensure the allocated school placed her on roll; and
- failed to arrange home tuition through the hospital school service.
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 Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on education for children out of school. I shared my draft decision with the Council and the complainant and considered their responses.
- 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.
What I found
- Local authorities have a duty to 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 provision. (Education Act 1996, section 19)
- Statutory guidance ‘Alternative Provision’ and ‘Ensuring a good education for children who cannot attend school because of health needs’ advise local authorities on how to carry out this duty. The guidance says:
- The duty means “that where a child cannot attend school because of health problems and would not otherwise receive a suitable full-time education, the local authority is responsible for arranging provision and must have regard to this guidance”.
- It applies to all children of compulsory school age resident in the local authority area, whether or not they are on the roll of a school, and whatever type of school they attend.
- The provision should generally be full time unless it is not in the child’s best interests.
- The law does not specify when alternative provision should begin for pupils with additional health needs. But councils should ensure pupils are placed as quickly as possible. They should arrange provision as soon as it is clear an absence will last more than 15 days.
- are not registered pupils at a school; and
- are not receiving suitable education outside of school. (Education Act 1996 section 436A)
“the local authority must know what education these children and young people receive each week, or whether they even attend, in order that they do not miss out on education”.
- As part of this service the Council has a Pupil Tracking Officer. Part of this officer’s role is to run regular reports to identify children who have been allocated places at schools in the Council’s area but do not appear to have been registered at the allocated school.
- The Council’s policy ‘The Education of children and young people who are unable to attend school due to medical needs’ sets out the provision for such pupils. The Council provides education through the Oxfordshire Hospital School Service (‘the Hospital School’) which includes an Outreach Teaching Sector which offers tuition outside of hospitals and schools. The referral process is that ‘generally’ the pupil will be on a school roll and the school will make the referral to the Service with supporting medical evidence from a consultant.
- The Council has a Service Level Agreement with all schools in the area, including Academies, for access to the Hospital School. Under the agreement the Council expects schools to keep the pupil on the school roll and be involved with planning the education programme, and communicating with the child, the Hospital School and the parents.
- The Hospital School Admissions Policy says there may be exceptional circumstances when a pupil is not on a school roll. In these cases the Outreach Teaching Sector:
“may agree to provide or support the education of a pupil with medical needs, subject to an appropriate medical referral and an agreed exit strategy. Such admission will only take place as part of the Local Authority Pupils Missing Out strategy.”
- Local authorities can ask an Academy to admit a child but cannot direct it to do so. The Secretary of State has the power to direct an Academy to admit a pupil. The School Admissions Code describes the position as follows. Where a local authority considers that an Academy will best meet the needs of any child, it can ask the Academy to admit that child but has no power to direct it to do so. The local authority and the Academy will usually come to an agreement. But if the Academy refuses to admit the child, the local authority can ask the Secretary of State to intervene. The Secretary of State has the power under an Academy’s Funding Agreement to direct the Academy to admit a child. (School Admissions Code paragraph 3.22)
- The Government has produced a flow chart describing the direction process.
- If an Academy refuses to accept a child the local authority may inform the Academy that it intends to ask for a direction from the Secretary of State.
- The Academy explains its reasons for refusal to the local authority within 15 days.
- The local authority applies for a direction and the Academy has a further seven days to make representations
- If the Secretary of State agrees, he issues a direction to the Academy.
- Mrs X moved to the Oxfordshire area in December 2016 with her daughter, D, who is now aged 14. D has a diagnosis of chronic fatigue syndrome. In the area where they lived previously D was receiving home tuition for three and a half hours a week as she was considered medically unfit to attend school.
- Mrs X says that when they moved to the Council’s area, she called the Council and explained the situation. The Council told her she needed to speak to the Hospital School. Mrs X says she did this but the Hospital School said it could not help until her daughter was on roll at a school. Mrs X contacted the Council again and it sent her an admission form which she completed. She applied for places at the two nearest schools. She says she explained on the admission application form that her daughter needed home tuition because of her medical needs.
- The Council entered the application details onto its system in early January 2017. At the end of the month the two schools Mrs X had applied for told the Council they were full in D’s year group. The Council identified School 1, an Academy, as the nearest school with places available. It sent D’s details to School 1 on 30 January 2017. It included the following information which appears to have been quoted from the application form, “[D] suffers from chronic fatigue syndrome and needs tutors to visit at home”.
- School 1 replied to the Council on 10 February 2017 saying it had put the application ‘on hold’ while it sought further information about how the School might meet her needs.
- On 20 February 2017 the Council contacted the School asking for an update. It advised the School it needed to process the application and then once D was on roll it could approach the Council for extra funding if necessary and to treat her as a vulnerable pupil. The School replied saying it was aware of this process but wanted to know whether there was a particular arrangement for transfer between authorities when the pupil had been receiving out of school provision on medical grounds in another authority. The School said the Hospital School had advised that if Mrs X could provide medical evidence from the previous authority it could act on this rather than starting the process from scratch. The School said it would now contact Mrs X and ask her to visit the School and bring in medical evidence.
- The School offered Mrs X an appointment to meet the Headteacher at School 1 with D in late February 2017 but Mrs X was unable to attend. The meeting was re-arranged for the following week. The School and Mrs X give different accounts of what happened but in any event the meeting did not take place. The School says it gave Mrs X a registration form to fill in but she did not do so and it did not hear from her after this. Mrs X says she asked the School to reschedule the meeting but she did not hear any more from the School.
- On 1 March 2017 the Council allocated D a place at School 1. It wrote to Mrs X with the offer two weeks later, after checking with the School what had happened with her application. It explained to Mrs X that she needed to contact the School direct to finalise the admission arrangements. It invited her to return a form confirming she was accepting the offer.
- The Council says the reply form indicated that Mrs X was refusing the place at School 1. The Pupil Tracking Officer, Officer B, wrote to her asking her what provision she was making for D’s education if she was not going to take up the place. The Council says this prompted Mrs X to make a further appointment with the School in early May. The Council has not been able to provide any documentary evidence to support this account of events. Mrs X says she did not reject the place at School 1. She says the School asked her to provide up to date medical evidence. She says she had already provided evidence of her daughter’s condition. However she obtained a further letter from a consultant advising that D needed home tuition, but could possibly return to school towards the end of the year.
- Officer B contacted School 1 again on 8 May 2017 to check whether D was now on the school roll. The School said it was intending to put her on roll but it had asked Mrs X to let them know when D would be well enough to come in for some assessments first.
- Officer B was concerned about the further delay and referred the matter to his manager the same day. He said he had not seen medical evidence of D’s condition but Mrs X had agreed to provide a copy of a letter from D’s previous consultant. He said he had spoken to D’s previous school who confirmed that D was receiving 1:1 home tuition through the local equivalent of the hospital school service, based on medical evidence provided. He said he was concerned that D had had no education since December and about the continuing delay.
- I have not seen evidence of any further action in response to the concerns the Officer B raised at that point. The Officer raised the matter with his manager again a month later, on 6 June 2017. On 21 July the Council advised School 1 it had to place D on the school roll.
- Mrs X made a complaint to the Council on 21 November 2017. She said her daughter suffers from chronic fatigue syndrome, anxiety and self-harming. She said despite being in regular contact with School 1 and Officer B, her daughter had had no education for the past 11 months.
- The following day the Council wrote to School 1 to advise that as D was currently classed as a ‘child missing education’ the School should now place her on the school roll. The School placed D on roll on 4 December 2017.
- The Council responded to Mrs X’s complaint two days later. It confirmed that D was offered a place on 1 March 2017 but the School did not place her on roll until 4 December. The Council said it took far longer than ‘the normal two weeks’ to offer D a school place. It said lack of staff in the Admissions Team at a busy time of year was partly responsible for this delay. Staff shortages also contributed to the delay in D being taken on roll, as the Admission Team had not ensured the School took the necessary action. It said once Mrs X made her complaint and the Council wrote to the School, it took her on roll without further comment. However it said School 1 should have placed D on roll without any intervention from the Council. Nevertheless it apologised for the Council’s contribution to the delay. The letter added that the Council understood that School 1 had now approached the Hospital School.
- Mrs X wrote back to the Council in January 2018 to say she was not happy with the response. She felt the Council should take responsibility for the delay in her daughter’s admission to School 1. She said she had made the Council aware of the situation and it could have intervened earlier. She wanted the Council to compensate her daughter for the education she had missed over the past year.
- In its response to the second stage complaint in January 2018, the Council apologised again for its part in the delay in ensuring D was placed on the school roll. However it said that as School 1 is an Academy the Council did not have the power to direct the School to admit her. It recognised that it could have applied to the Education & Skills Funding Agency to make a direction. But it said in its experience the process can take up to six months. Nevertheless it recognised that the Council had “an overarching responsibility to seek to secure good educational outcomes” for all children in its area. It acknowledged the “belated action by the council” in advising the School it had to admit D. But it said there was further delay after that and it was only with the written ‘instruction’ to the School following Mrs X’s complaint that the School finally placed her on roll. The Council’s view was that it was impossible to know whether the School would have acted in this way sooner if the Council had written earlier. However with hindsight it recognised “it would have been worth trying and may have resulted in less of a delay”.
- The Council’s conclusion was that it “could have pressed [School 1] more assiduously and at an earlier stage to place [D] on its roll and to engage the support of the OHS.” It gave Mrs X a further unreserved apology. It still said it was the School’s responsibility to place D on its roll and advised her how she could complain about the School’s actions. It said it did not consider it appropriate to offer compensation but would make sure it learned lessons from the complaint.
- In May 2018 School 1 contacted Mrs X by telephone to offer provision through the Hospital School. However she could not take up the offer as by then the family had decided to move to another part of the country.
Analysis – was there fault causing injustice?
- The Council allocated D a place at School 1 at the beginning of March 2017 but the School did not place her on roll for another nine months. In the meantime D did not receive any education. There was then further delay in receiving an offer of education from when School 1 made the referral to the Hospital School until May 2018.
- The Council recognises it could have done more to press School 1 to register D. But it says the School should have done so itself without any intervention from the Council. It says the Council had a statutory duty to allocate a school place, which it fulfilled. It says it was then the School’s responsibility to place D on roll and to engage the support of the Hospital School. In response to the Ombudsman’s enquiries it said it was not aware that the School had not placed D on roll until it received Mrs X’s formal complaint in November 2017. It says it cannot comment on what the Academy did after the place was allocated.
- I accept that the Council met its duty to allocate D a school place. The Council says it normally allocates places within two weeks. It took longer in this case. However in my view the Council took reasonable steps to identify a school place and arrange the allocation. Mrs X made the application shortly before the Christmas break and the Council entered the information on its system at the start of the New Year. The Council was in contact with School 1 during February trying to ensure it made the arrangements to admit D. This involved the School meeting Mrs X and, without being able to say exactly what happened, at the very least there was a misunderstanding about the meeting which delayed matters further. The Council then made the decision to allocate the place on 1 March 2017. Taking account of this sequence of events I do not consider the delay up to this point was a result of fault by the Council.
- I also accept that School 1 should have taken the necessary steps to admit D without the need for the Council to intervene. I have no power to investigate the actions of the School. However, knowing that the School was not taking the necessary action, the Council had a responsibility to step in. The Council has statutory duties to provide education for children in its area, to provide alternative education for children unable to attend school for medical reasons, and to identify pupils missing education and ensure they receive a suitable education. It is the Council which has the overall responsibility for making sure children do not miss out on education to which they are entitled.
- The Council had various means for doing so.
- Through its Pupils Missing Out service it should have been tracking and monitoring whether the allocated School had placed D on roll, and if not contacting the School to advise it to do so.
- Ultimately if the School was failing or refusing to take her on roll the Council could have sought a direction from the Secretary of State. The process should not take six months as the Council suggests, as there are timescales for the School to follow. Once the Council wrote to the School pointing out it should have registered D, the School did so within the next two weeks. It seems likely that a warning about a direction from the Secretary of State would have achieved the same effect earlier.
- In the meantime the Council could have pursued alternative education provision. Usually the arrangement with the Hospital School is that the school where a child is registered makes the referral for out of school provision. However the agreement allows the Council to make direct referrals in circumstances where a child is not on a school roll, as part of its Pupils Missing Out work. The Council was aware from the outset that D may need alternative provision outside of school. Officer B was able to establish that the previous authority was satisfied D had medical needs preventing her attending school. A direct referral would have allowed the Council to fulfil its duty to provide D with alternative education out of school on the basis that she would not otherwise have received an education.
- one month between March and May 2017
- seven months from May to December 2017 (excluding the school summer holidays)
- four months from January to April 2018.
- The Council has already apologised to Mrs X for failing to pursue School 1 vigorously enough. I recommended that within one month of the final decision on the complaint the Council should also offer her a financial remedy. Taking account of the Ombudsman’s guidelines, the fact that D received no education at all, but that any education provided is likely to have been part-time I recommended a payment of £250 per month for 12 months. This is a total of £3,000. The sum should be used for D’s educational benefit. The Council has agreed to this recommendation.
- The Council says it is actively working to revise its system to prevent similar failings occurring again in future. It has appointed a new Head of Service for Learner Engagement and confirmed it will carry out a review of the admissions process for the Hospital School once the officer is in post. The Council has agreed that when the review is complete it will tell the Ombudsman the outcome. This should include details of how the Council will improve procedures to ensure:
- schools, including Academies, admit a pupil without undue delay once the Council has allocated a school place; and
- pupils moving from another authority who have been receiving home tuition because of medical needs can access alternative education provision as soon as possible, even if they are not yet on a school roll.
- I find that the Council was at fault in failing to provide Mrs X’s daughter with any education when she was out of school for medical reasons. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman