Summary: Mr and Mrs X complained the Council failed to provide an education for their son while he was not at school suffering with mental ill health. We found there was fault by the Council that warranted a remedy.

The complaint

1. The Council failed to ensure that Mr & Mrs X’s son has had access to full-time education or full-time curriculum between March 2019 and March 2020 despite knowing he could not attend school full-time. It failed to show proper oversight of his school’s plan to reintegrate their son back into school or ensure the school provided adequate work for him.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. 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

5. I spoke to Mrs X and considered the information Mr and Mrs X provided about their complaint. I asked the Council for information and I considered its actions and its response to the complaint.
6. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

DfE guidance: Ensuring a good education for children who cannot attend school because of an illness

7. The guidance notes a council’s duty to provide an education from Section 19 of the Education Act 1996. It states councils must provide a suitable full-time education (or as much as the child’s health condition allows).
8. The guidance states councils should provide such an education as soon as it is clear that the child will be away from school for 15 days or more, consecutive or cumulative. However, it recognises full-time education may not be in the best interests of a particular child when taking account of their physical or mental health. In this event, councils should produce a part-time education on a basis the council considers to be in the child’s best interests.
9. Paragraph 5 of the guidance highlights that the government’s policy intention is that “all children, regardless of their personal circumstance or education setting receive a good education. To make this possible, alternative provision should address a pupil’s individual needs whether they be health related, behavioural related, or otherwise through an appropriately tailored approach.”

DFE document “School Attendance Guidance for maintained schools,

academies, independent schools and local authorities”

10. Page 19 of this guidance states as a rule, schools cannot place pupils on part-time timetables. It states “In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. Any pastoral support programme or other agreement must have a time limit by which point the pupil is expected to attend full-time or be provided with alternative provision.”

Council Guidance on the use of reduced school timetables from Aug 2019

11. The Council’s guidance document states it is intended to protect both schools and students by ensuring no child is excluded illegally via the imposition of reduced, part-time education timetables.
12. It notes the content of DFE guidance on part-time timetables (referred to above). It also notes that Ofsted require Local Authorities to keep up-to-date information from all schools about which children are not accessing education full-time.
13. The Council’s guidance sets out it’s responsibilities. It says it should:
• Ensure all children of compulsory school age who are not receiving a suitable full-time education, do receive this unless they are deemed to be medically unfit to do so, or it is otherwise considered to be in the best interests of the child’s mental or physical health not to.
• Collect and monitor data about all children of compulsory school age who are not accessing full-time education.
14. The guidance sets out best practice for schools to follow. This includes consulting with relevant agencies and agreeing a detailed action plan with parents and pupils. It states the action plan should show a clear path to re-integrating the pupil to full time education within a maximum of six weeks.
15. The guidance also states that schools must obtain written consent from the child’s parents to the arrangements for a reduced timetable. Without parental agreement the child’s reduced timetable would be considered an unlawful exclusion. The school should also get confirmation in writing of which adults would be responsible for a child during school hours if they were not attending school.

Education Support for Medical Absence (ESMA)

16. This is a council service which aims to support pupils who have significant time off school for physical or mental health reasons. They can assist them get back into school life after time away from school. They can provide advice and training to schools about children’s physical and mental health needs, reasonable adjustments and timetable changes. They can also provide teaching support and help children to receive education working jointly with schools and parents. Referrals need to be made by the school.

What happened

17. The documents provided by Mr and Mrs X and the Council show that Y was struggling with significant anxiety and depression in early 2019 and this was affecting his school attendance.
18. When the Council contacted the school in February 2019 they were advised that some actions towards re-integrating Y to school had not happened because of staff illness.
19. As of February, the Council told us that Mr and Mrs X had reported Y was expressing suicidal thoughts. But, as they had not provided any health advice or reports, there was no health or medical evidence to support their view that Y was too ill to attend school. A referral was made to a consultation team in Children’s Services. They assessed that Y was not at risk of acting on the statements he had made.
20. From March 2019 there is evidence that the school, support workers and council officers began meeting with Mr and Mrs X in Teams Around the Family (TAF) meetings. These discussed and agreed plans to re-integrate Y to school. The school set out a plan for Y to attend part-time for several days, working up to a full time return on 1 April 2019.
21. The Council has a service which provides supplementary home tuition to pupils who are not attending school for medical reasons (Education Support for Medical Absence or ESMA). No referral was made to ESMA by the school. The Council told us it would be the school’s responsibility to make a referral. The school considered they could meet Y’s needs with support from other professionals.
22. On 29 April the School’s Special Education Needs Coordination Officer (SENCO) spoke to a council officer about the need to send work home. The council officer advised the school it was their decision whether to do so. They stated there was nothing to state that they must do. The school were concerned that providing work may lead to this being an ongoing requirement and that children may be out of school longer if work was provided. The council officer advised the school could direct parents to websites to use or names of books the parent could access. They could also give the parent details of the curriculum so the parent could look into that at home with their child.
23. On 30 April Mrs X spoke to the Council. She was concerned that Y had been at home since March. She wanted Y to be re-integrated to school and she also stated the school had provided no work for him to do.
24. Mr and Mrs X provided a psychologist report to the school on 9 May 2019 which indicated Y was not well enough to attend school and that he should not be pressured to attend as it would make his condition worse. At that time, it was accepted that Y was too unwell to return to school on a full-time basis. Y did not attend school between the end of March and the start of June 2019.
25. In June 2019 correspondence from the school set out a transition plan to encourage Y to return to school. The plan was for Y to attend school briefly for ten minutes each day. The plan was fairly detailed and set out where parents should take Y, which staff would meet him and what they would do. It stated a pack of work would be given to Y to take home and how his work would be discussed with him when it was completed. The school intended to increase the time at school to 30 minutes the following week. This would be reviewed at the end of June. The minutes noted that Y’s psychologist was not happy that Y had returned to school so quickly.
26. The minutes of the June TAF meeting also show that someone from ESMA attended. The minutes say the headteacher was discussing Y with ESMA but they do not record anything further about ESMA’s views or involvement. The Council told us an ESMA representative explained how referrals could be made to it and possible support options if the transition plan was not successful. However, this was not minuted.
27. The Council told us it was decided by all professionals that the ESMA service was not suitable for Y and this could overload him. They decided support should be based on Y’s needs and by continuing to engage him with via the teachers who had started to build a relationship with Y.
28. The Council stated Attendance Officers were aware in June 2019 that Y was receiving private external education/tutoring which Mr and Mrs X had arranged.
29. In July there was evidence that Y was becoming more relaxed at school and he was making good progress. However, Y remained on a part-time timetable, still attending school for only ten minutes per day. There were still days when Y was becoming very distressed. The plan was to continue with a part-time timetable when the summer term started in September.
30. In mid-September, at a TAF meeting, the attendees agreed to consider slowly extending the time at school but not to act too quickly. A three-week plan was discussed. The first week Y would attend for half an hour, then from week two he would attend until 10am. Mr and Mrs X noted that Y was being considered for an Education Health and Care Plan (EHCP).
31. There is evidence of some tensions between Mr and Mrs X and the school in November 2019 and an incident which Mr and Mrs X considered a set back to Y’s re-integration.
32. By December 2019 Y was attending school every day, all morning. In February 2020 Mr and Mrs X asked the school to extend Y’s time at school to include the lunchtime period. They explained the unstructured times around breaks and lunch were difficult for Y as he felt lost, so they wanted to work on that. They stated they did not agree the re-integration plan and it felt like an informal exclusion. The school stated that taking small steps had been successful and they wanted to take this slowly. Mr and Mrs X emailed the Council and explained their view of the plan.
33. In January 2020, Y was given an EHCP. The support it specified was mainly related to Y’s integration to school, how to build Y’s trust and manage his anxiety. It referred to structure around his school attendance, communication, behaviours, help with social skills and interactions with others. It included some equipment and techniques to assist and manage Y’s work.
34. From 10 March 2020, the school agreed a timetable to extend Y’s attendance at school initially until 1pm, a week later until 2:10pm and from 23 March, attending school for full days.

Mr and Mrs X’s complaint

35. Mr and Mrs X complained to the Council in June 2020. They stated Y had been placed on a part-time timetable without their official consent. They complained the Council accepted a reduced timetable for Y but the documentation they saw from the school suggested the reduced hours only started in September 2019. This was not correct. They stated Y had been on a re-integration plan since 10 June 2019 and at no point had the school consulted with them to obtain permission for the reduced time-table.
36. Mr and Mrs X complained Y had not received the 23.5 hours of education each week that he should have since 18 March 2019. They also felt that the school had not provided sufficient, appropriate work for Y since 2019. They contrasted what Y received to the work sent after the national COVID-19 lockdown began in March 2020. They stated the greater support provided from March 2020 showed that the school had failed to provide sufficient work and support for Y between 2019 and 2020.
37. In further complaint correspondence Mr and Mrs X questioned the policy requirement to confirm which adults were responsible for Y when not at school. They stated his teachers had not contacted him regularly and no learning provision was made while he was not at school.
38. The Council’s response explained its view that Mr and Mrs X had been fully aware of the reduced time-table and had agreed it. They referred to telephone calls, emails and meetings between the school and Mr and Mrs X which showed they were aware of the arrangements. In early 2020 the Council noted Mr and Mrs X were asking the school how Y’s time in school could be increased. At a meeting in March 2020 they noted the school planned to extend Y’s time at school to normal finishing times by week beginning 23 March. As Mr and Mrs X had been a part of meetings which discussed the arrangements and received and sent emails about them, the Council did not agree that there had been a lack of engagement and consent. However, in future the Council stated it would be ensuring schools obtained a signature from parents, agreeing to such plans.
39. In respect of responsibility for Y during school hours, the Council noted that parents were responsible for their children once they collect them from school. It advises schools to ask parents to sign a document if they are taking their children out of school.
40. The Council stated if Mr and Mrs X considered the school had not provided sufficient educational provision for the period of the reduced hours, Mr and Mrs X should make a complaint to the school. The Council stated it did not control schools and was not responsible for complaints about them.
41. The Council stated government guidance allows a temporary reduction in time‑tables for children in very exceptional circumstances. The Council stated the school had not always followed best practice and it would highlight this to the school. However, it did not uphold this element of the complaint as the Council had not deviated from the law and guidance set out around reduced timetables.

Was there fault

Part-time Timetable/Re-integration to School

42. We are not able to investigate complaints about the actions of a school. Our investigation is about whether there was fault in the way the Council dealt with Y’s absence from school.
43. Both the DFE guidance and Council policy recognises that part-time timetables should only be used in very extreme circumstances. Where they are used, they should generally be time limited. From August 2019 the Council’s policy was to reintegrate children to full-time education within six weeks.
44. Y was unable to attend school from February 2019. Between February 2019 and June 2019 there is evidence that Y was too ill to attend. From June 2019 to March 2020 Y was on a part-time timetable. For much of this period Y was attending school for only a few minutes per day to gradually re-build his confidence. From March 2020, the school was able to build up to Y attending full time.
45. It is clear from government guidance and Council policy that the expectation is for children not to be on part-time timetables for long periods or for these to be used as a form of exclusion for pupils who are well enough to attend school. However, in Y’s case due to his significant anxiety and depression, he was not well enough to attend at all in early 2019. Mr and Mrs X had reported Y’s poor mental health and these reports were later backed up by a psychologist report in May 2019. From June 2019 when a part-time timetable began, Y continued to have significant anxiety and continued to struggle to attend for short periods of time. This improved over time. It was not fault that the Council’s policy aim to re-integrate children within six weeks was not met on this occasion. These were exceptional circumstances in my view.
46. I recognise that Mr and Mrs X would have preferred Y to be re-integrated more quickly from early 2020 when his health had improved. However, I found there was no fault by the Council in this respect. It seems clear that the school and the council kept the plan under review and decided, based on Y’s best interests, how quickly to move this forward.
47. The Council noted that the school should have obtained written authorisation to the part-time timetable from Mr and Mrs X. However, I agree with the Council’s view that Mr and Mrs X were included in the decisions that were made and the meetings that took place to decide the action to be taken in respect of Y.

Provision of Education/Work

48. Our focus report “Out of School…out of mind?” from 2011 reiterates that councils have a duty to provide education for those missing school for illness or exclusion or otherwise’.
49. Although it is recognised that Y could not attend school due to his health, I would expect councils to determine whether a child was able to do some work at home, and what work this may be. As councils have a general duty to ensure children out of school receive an education, the Council should have ensured that Y received as much of an education as was possible given his mental health and wellbeing.
50. I found there was little or no evidence that the Council had considered what education Y could receive outside of school while the work to reintegrate him was ongoing. While it would be the school’s responsibility to provide work and to refer a child to ESMA, the Council has a duty to ensure children receive an education.
51. Up until May 2019 the Council stated Y’s absence was not supported by information by health professionals, and was treated as an attendance issue. But, from June 2019 it was clear that Y was too ill to attend school (a psychologist report to the school confirmed this in May). It was also clear that Y’s return to school would be slow and it would take considerable time. The Council was also aware that Y was receiving some private tuition outside school, arranged by his parents.
52. Given what was known by June 2019 the Council should have ensured that Y received an education outside of school, either through ESMA or through other means. There was inadequate consideration of how much and what work Y was able to do outside school and how an education might be provided to him outside the school environment.
53. I acknowledge the evidence that the school provided some work (in the re‑integration plan). However, it does not seem the work provided was equivalent to the curriculum being taught in school. This was also relatively short lived. In July 2019 there is evidence the school had ceased providing learning tasks for Y at home. Their focus was on encouraging Y to attend school.
54. It is difficult to say how much work Y would have been able to achieve during this period. However, I consider, on balance, the fault has led to Y losing some education provision between the start of term in September 2019 and March 2020 when he returned to school full-time. This caused injustice which should be remedied. In determining an appropriate remedy, I have taken into account that Y had returned to school for half days by late 2019.

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Agreed Actions

55. To recognise that, on balance, Y lost some education provision between September 2019 and March 2020, the Council agreed to make a payment of £500 to his parents which they can use to support Y’s education. The payment should be made within four weeks of my final decision.

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Final decision

56. I found there was fault by the Council. As the Council agreed to remedy the complaint as we recommended, I have now completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman