Summary: Mrs X complained the Council failed to provide her daughter F, with alternative education when she was unable to attend school for medical reasons. The Council was at fault. It fettered its discretion and failed to properly consider the medical evidence Mrs X provided which meant F remained without any alternative provision between October 2018 and January 2019. The Council agreed to pay F £1,375 to acknowledge the loss of education during this period. The Council also agreed to pay Mrs X £500 to acknowledge the upset, uncertainty and time and trouble the matter caused her during 2018 and 2019. It will also review its home education policy to ensure it is in line with statutory guidance and relevant law.

The complaint

1. Mrs X complained the Council failed to provide her daughter, F, with alternative education when she was unable to attend school for medical reasons between September 2018 and November 2019. Mrs X also complained the Council delayed issuing F with her Education Health and Care (EHC) Plan.
2. Mrs X said F missed out on a year of education and social development which meant she had to fund private education for her. Mrs X said the matter has caused both F and the wider family distress, uncertainty and time and trouble.

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What I have investigated

3. I have investigated the period between September 2018 and February 2019 when F was out of school for health reasons. I have also considered the period between September and November 2019 when the Council made F’s EHC Plan. I have not investigated the period February to August 2019 and I explain why at the end of this decision statement.

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The Ombudsman’s role and powers

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
7. 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.
8. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
9. 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)
10. 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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How I considered this complaint

11. I spoke to Mrs X about her complaint and considered the information she provided.
12. I considered the Council’s response to my enquiry letter.
13. I considered relevant statutory guidance and legislation.
14. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Alternative provision law and guidance

15. Under Section 19 of the Education Act 1996, councils have a statutory duty to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’ and where suitable educational arrangements have not been made.
16. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
17. 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.

Children out of school because of medical or health reasons

18. In 2013 the Government issued statutory guidance for councils titled ‘Ensuring a good education for children who cannot attend school because of health needs’. The guidance states that, while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It also states that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time.
19. The guidance states councils should liaise with appropriate medical professionals, such as the child’s GP and consider looking at other evidence to ensure minimal delay in arrange appropriate provision for the child.

Our Focus report

20. We issued guidance in 2016 on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. We identified six recommendations based on examples of good practice in councils including:
• Consider the individual circumstances of each case and be aware that, potentially, a council may need to act whatever the reason for absence (with the exception of 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.
• Adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so.
• Put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible/

Relevant case law

21. Case law has said it is for councils to decide what weight to apply to medical evidence when deciding whether to make alternative provision for a child out of school for medical reasons. It said councils had to consider all of the salient facts. However it said councils are entitled to weigh up all the facts of the case and come to its own conclusion even if that is at odds with medical evidence obtained by parents. (R(on the application of D) v A Local Authority)(2020).

Education, Health and Care Plan (EHC) Plan

22. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
23. If the tribunal orders the Council to make an EHC Plan then it must issue the draft plan within 5 weeks and finalised plan within 11 weeks of the tribunal’s order.

The SEND Tribunal

24. Certain SEN decisions have a right of appeal to the SEND Tribunal. We would not normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would be unreasonable to expect the person to appeal.
25. Some of the decisions which are appealable and usually out of our jurisdiction include a council’s refusal to issue an EHC Plan.
26. Where a parent has appealed to the SEND Tribunal, we cannot investigate what happened between the date the appeal right arose until the appeal is completed where it is linked to the matters appealed. So, the Council’s actions during that period are outside the Ombudsman’s jurisdiction. It also means we cannot seek a remedy for lack of education or provision during that period.

Fettering discretion

27. It is a general principle of administrative law that public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to those whose circumstances place them at a disadvantage.
28. The Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ states councils should not have processes or policies in place which prevent a child from getting the right type of provision and a good education. It says councils should not have inflexible policies which result in children going without suitable full-time education.
29. The Council has a policy titled ‘Local Authority policy on the education of children with medical needs’. The Council’s policy states that to be eligible for home teaching a medical referral is required from a senior grade doctor or CAHMS (Child and Adolescent Mental Health services) therapist.

What happened

30. In 2018 F attended mainstream primary school in year 6 and was due to transition to secondary school in September 2018. F had special educational needs including language difficulties and low social communication skills and she suffered from anxiety. However, she did not have an EHC Plan.
31. Mrs X applied for a place at School A and School B for F. However, F was not allocated either. Instead, the Council offered F a place at School C. Mrs X told the Council she did not want F to attend School C. The Council offered F a place at School D at Mrs X’s request which she accepted.
32. Mrs X appealed the Council’s decision not to offer F a place at School A and also two other schools which Mrs X had not initially applied for. The panel did not uphold Mrs X’s appeal.
33. F remained on roll at School D (the School) however did not start there in September 2018, remaining at home. Mrs X sent the Council a letter from F’s clinical psychologist stating F had been referred to CAMHS. It said F was struggling with anxiety about starting her new school and suggested F might have an illness which required diagnosis. It asked the Council to take this information into consideration. The Council told Mrs X the letter was not suitable evidence to show F was out of school for health reasons. It said it required medical evidence from a consultant.
34. In October 2018 Mrs X asked the Council to assess F for an EHC Plan.
35. Mrs X supplied the Council with letters from F’s doctor signing her off school as sick. Mrs X also sent the Council a letter which referred F to CAMHS. Mrs X asked the Council to supply home tuition for F as she was out of school due to illness. The Council wrote to Mrs X and told her it required a letter of support from a paediatric consultant before it could provide F with home tuition. Mrs X said the School also refused to send any work home for F.
36. F remained at home without any alternative provision or education during October and November 2018. In November the Council held a fair access panel to consider F’s case. The outcome was the panel decided F should remain on roll at the School and work with the teachers to support her needs. There are no minutes or notes which show how the panel considered F’s individual circumstances or the information from her doctor. An internal email from a senior Council SEN officer highlighted his concerns that both the Council and the School were letting F down.
37. A Council officer carried out a home visit to F at the end of November 2018. A re-integration plan back to the School was agreed however by mid-December Mrs X informed the Council that CAHMS had recommended the School provide home tuition for F due to her ongoing illness. The officer highlighted areas of weakness and uncertainty around how it engages with home tuition and general criteria used for quicker involvement by senior management. The officer noted the requirement for a paediatric referral was ill defined.
38. In December 2018 the Council agreed to commence an EHC Plan assessment for F.
39. In mid-January 2019 F started attending school at a private setting funded and arranged by Mrs X. Therefore, the School removed F from its roll.
40. Internal emails from the Council show senior officer’s discussed F’s case during January 2019. The officer concluded the School’s approach and lack of engagement with Mrs X was poor.
41. In February 2019 the Council wrote to Mrs X outlining its decision that following the EHC Plan assessment it had decided not to make a plan for F. The letter included Mrs X’s right to appeal the decision to the SEND tribunal which Mrs X exercised.
42. F remained at the private school setting for the remainder of the school year. In August 2019 the SEND tribunal ordered the Council to make an EHC Plan for F. The Council issued F’s final EHC Plan in October 2019, naming F’s current private setting as the named school. The Council issued F’s final plan three weeks later than statutory timescales allow.
43. F continued attending the private school setting for the remainder of the 2019/2020 school year.
44. Mrs X complained to the Council in November 2019 and then complained to us in September 2020 after she did not receive a response from the Council. Mrs X had complained the Council failed to offer F a suitable alternative education between September 2018 and November 2019 when she was out of education due to illness. Mrs X said the Council’s handling of the matter forced her to pay for a private placement in January 2019. Mrs X said the Council had failed to consider the medical evidence she provided it and was incorrect in requiring a paediatric assessment. She also complained the Council failed to issue F’s EHC Plan within statutory timescales.
45. The Council responded to Mrs X in October 2020 after carrying out an investigation into her complaints. The investigation found the Council had offered F suitable education which was assessed by the fair access panel as being able to meet her needs. It said Mrs X chose to fund a private placement for F and did so independently of the Council. The Council said it considered its own policy and statutory guidance in asking for a medical referral from a senior grade doctor. It said Mrs X had already commissioned F’s placement at the private setting by the time it had received the referral from CAMHS in January 2019 and therefore home tuition was no longer required. The Council said it issued F’s initial EHC Plan refusal letter one day late however said it did not impact Mrs X’s ability to appeal that decision. The Council said it issued F’s final EHC Plan well inside the 11-week statutory timescale.
46. Mrs X remained unhappy and complained to us.

My findings

September 2018 – February 2019

47. The Ombudsman may find fault with councils for ‘fettering their discretion’, that is to say, for operating inflexible policies which do not allow for the application of discretion. This is because a blanket refusal to depart from a policy is arbitrary and likely to lead, at one time or another, to manifest injustice.
48. Case law has decided that it is ultimately up to the Council to decide what weight it gives to medical evidence when deciding whether to put in place alternative provision for children out of school for medical reasons. However, in doing so the Council must consider all salient facts in making its decision. Therefore, we expect to see evidence showing how the Council reached its decision.
49. Mrs X provided the Council with evidence and information from F’s doctor and her clinical psychologist in October 2018 which outlined details of why she was not attending the School. There is no evidence to show whether or how the Council considered this information or to show it properly considered using its discretion. Instead, it referred to its own policy and said Mrs X ‘must’ provide evidence from a paediatric consultant. Throughout Mrs X’s communication with the Council it refused to depart from this policy and repeated its request for evidence from a paediatric consultant. The Council fettered its discretion to consider the evidence Mrs X provided in support of F’s absence from school for medical reasons which was fault. It meant F remained out of education without any alternative provision between October 2018 and December 2019.
50. The Council considered F’s case at a fair access panel. There is no evidence to show how the panel considered all the relevant information in deciding F should attend the School. There are no minutes or contemporaneous notes which show how the panel arrived at its decision or how it considered F’s supporting medical evidence. That is fault. It caused Mrs X uncertainty about how the panel reached its decision.
51. The Council’s policy on educating children with medical needs is inflexible and not in line with statutory guidance or its duties under public law. The Council’s investigation into Mrs X’s complaint states its policy says it needs medical referrals from a senior grade doctor or CAHMS therapist. However, this is not what statutory guidance or relevant case law says. Statutory guidance states Council’s should work closely with medical professionals and consider liaising with a child’s doctor. It states where evidence from a medical consultant is not available it should liaise with other medical professionals. There is no evidence it did this. That is fault and it meant the Council took a rigid and inflexible view of Mrs X’s case and raises concerns about its wider application to other children out of school for medical reasons.

F’s EHC Plan

52. The Council issued F’s decision letter not to make an EHC Plan for her one day outside statutory timescales. That was fault however it did not cause injustice to Mrs X or impact her ability to appeal. The Council however has already apologised for this.
53. The SEND tribunal ordered the Council to make an EHC Plan for F in August 2019. The Council issued both F’s draft plan and her final plan insider statutory timescales and was not at fault.

Mrs X’s complaint to the Council

54. Mrs X complained to the Council in November 2019 however it did not respond to her until October 2020 after she had brought the matter to us. That is a significant delay and is fault which caused Mrs X frustration and time and trouble.

Injustice

55. The Council was aware F was out of school for medical reasons during October 2018. Its failure to properly consider the medical evidence Mrs X provided meant she remained out of school without any education or alternative provision for the rest of that term into mid-January 2019.
56. F started attending a private education placement commissioned by Mrs X in January 2019. Therefore, I do not consider F suffered an injustice from this point. However, had it not been for the Council’s fault F could have received alternative provision earlier which may have negated the need for Mrs X to pay for a private setting. This has left Mrs X uncertainty. While we cannot recommend reimbursement of private school fees I have recommended a remedy to acknowledge the uncertainty the faults caused Mrs X for the period January to February 2019 and September to November 2019.
57. The recommendations I have made to remedy the injustice caused by the faults are in line with our guidance on remedies. In determining an appropriate level I have considered factors such as:
• F’s SEN
• The period affected was a significant one in a child’s school journey.
• Education F received in her private setting.
• The impact on Mrs X and the wider family.

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Agreed actions

58. Within one month of the final decision the Council agreed to:
• apologise to F and pay her £1,375 to remedy the loss of education between October 2018 and January 2019 when she was out of school for medical reasons. The Council should make the payment to Mrs X for her to use for F’s education development as she sees fit.
• apologise to Mrs X and pay her £500 to acknowledge the upset, uncertainty and time and trouble caused to her during 2018 and 2019 by the Council’s failure to properly consider the medical evidence she provided in support of F’s absence from school. This also remedies the frustration and time and trouble caused by the Council’s poor handling of her complaint.
59. Within three months of the final decision the Council agreed to review its policy on the education of children with medical needs. The review should
• ensure the policy is in line relevant statutory guidance and law.
• ensure it properly considers all medical evidence and uses its discretion in deciding whether to provide alternative provision for children out of school for medical reasons.

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Final decision

60. I completed my investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Parts of the complaint that I did not investigate

61. I did not investigate what happened during the period February 2019 to August 2019. This is because the SEND tribunal considered Mrs X’s appeal against the Council’s decision not to issue F with an EHC Plan. F’s absence from education was linked to her SEN and therefore intrinsically linked to the reason Mrs X appealed to the tribunal. Therefore, the Council’s actions and resulting consequences of those actions during this period are outside of our jurisdiction.

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Investigator's decision on behalf of the Ombudsman