Summary: There was fault by the Council in failing to provide suitable fulltime education under s.19 Education Act when it agreed medical tuition was required for a child not attending school. There was also fault in the Council’s complaint handling. The Council will apologise, make a symbolic payment and implement service improvements.

The complaint

1. Ms X complains that the Council has failed to make suitable educational provision for her son since February 2022, and failed to secure provision set out in his Education, Health and Care (EHC) plan from December 2022.
2. Ms X says as a result, her son’s education and welfare have suffered, she has incurred private education expenses and her partner has had to reduce their work commitments.
3. In Ms X’s original complaint to the Council, she was requesting as an outcome the Council name an alternative school for her son to attend.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter even if the tribunal or court has not provided or cannot provide a complete remedy for all the injustice claimed. The lack of an available financial remedy from the Tribunal does not mean the Ombudsman is empowered to investigate. The Court has noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
8. We cannot investigate the consequences of a decision where the decision has been appealed to a tribunal. (R (on the application of ER) v the Commissioner for Local Administration, 2014)
9. We cannot conduct an investigation which might trespass in any way on the jurisdiction of any tribunal. R v Local Commissioner for Administration for the North and East of England ex parte Bradford Metropolitan City Council [1979]
10. 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.
11. If we are satisfied with an organisation’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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What I have and have not investigated

12. I have not investigated the actions of the school where Ms X’s son was on roll, schools are not within our jurisdiction.
13. I have not investigated Ms X’s complaint about the Council’s decision to name a particular school in the EHC plan or its refusal to name a different school of Ms X’s preference. This is a decision only a Tribunal can overturn, and Ms X has used her right of appeal.
14. I have not investigated alleged injustice for the period after a final EHC plan was issued in December 2022. Ms X had a right of appeal to the SEND Tribunal, which she has used. As an alternative legal remedy has been used the Ombudsman has no jurisdiction to investigate Ms X’s complaint about this period. This is explained further below.

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How I considered this complaint

15. I have considered information provided by Ms X and the Council.
16. I have considered relevant law and guidance including:
• Children and Families Act 2014
• Education Act 1996
• Special Educational Needs and Disability (SEND) Regulations and Code of Practice
• Statutory guidance:
1. Children Missing Education
2. Alternative Education
3. Ensuring a good education for children who cannot attend school because of health needs.
4. Summary of responsibilities where a mental health Issue is affecting attendance.
5. Working together to improve school attendance.
• Ombudsman’s Focus Report: Out of School, Out of Sight.
• Ombudsman’s Guidance on Remedies.
17. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
18. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

School attendance

19. Section 7 Education Act 1996 requires parents of children of compulsory school age to ensure their child receives fulltime education by regular attendance at school or otherwise.
20. Schools and Councils have various powers to enforce attendance at school. This may include parenting contracts, parenting orders and fixed penalty notices.
21. Councils can also prosecute parents for a criminal offence if they fail to ensure their child attends regularly at school. (s.444(1)(A) Education Act 1996)
22. Statutory guidance Working together to improve school attendance says schools, councils and families should work together to identify root causes of absence and remove barriers to attendance. This may include putting in place an early help plan, or assessing for an Education, Health and Care (EHC) plan.

Education when a child cannot attend school

23. 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. (s.19 Education Act 1996)
24. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
25. 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. (Education Act 1996, section 3A and 3AA)
26. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022.
27. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible and so should retain oversight and control to ensure duties are properly fulfilled.
28. Statutory Guidance Ensuring a good education for children who cannot attend school because of health needs says councils should work closely with medical professionals and the child’s family. Where specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should consider liaising with other medical professionals or look at other evidence to ensure minimal delay in arranging appropriate provision for the child. The Guidance says Councils should not unnecessarily demand continuing evidence from a consultant without good reason.
29. In R (on the application of D) v A local authority [2020] EWHC 2916 (Admin) the Court said it was clear from section 19(1) Education Act that the responsibility rests with the local authority to identify when alternative provision is required for a child on health grounds: it is the local authority’s decision.
30. In new guidance Summary of responsibilities where a mental health issue is affecting attendance and Working together to improve school attendance the Government says professionals should provide cross-agency support through a team around the family to alleviate a pupil’s concerns about barriers to attending school. Schools must record absences as authorised where pupils cannot attend due to illness that is mental health related. Schools should inform the Council where pupils are likely to miss more than fifteen days. Councils must not follow an inflexible policy of requiring medical evidence before making their decision about alternative education. Councils must look at the evidence for each individual case, even where there is no medical evidence, and make their own decision about alternative education.

Council’s policy

31. The Council has policies for supporting children with medical needs and for children who require Education Otherwise than at School (EOTAS) under s.19 Education Act 1996.
32. The policy says in most cases children with medical needs will continue to receive suitable education without intervention from the Council as the school will continue to meet its responsibilities to such children. For example, where a child can attend school with support, or the school has made arrangements for suitable education outside of school.
33. The policy expects parents to provide relevant and up-to-date information about their child’s medical needs and reasons for absence. If the authenticity of the illness is in doubt the policy says schools can request parents provide medical evidence. This can include appointment cards or prescriptions rather than doctors’ notes and each piece of evidence should be judged on its merits by the school. Where there is no other medical evidence then a medical professional’s letter or note will be required which should state if the child is fit or not fit to attend school and for how long.
34. Where special educational needs are a factor support may be provided via an EHC plan.
35. The policy says the Suffolk Family Focus Attendance Service will work with the school, parents/carers and medical professionals to promote realistic attendance. Schools should support children with medical needs where practical before referring to the Local Authority’s Alternative Tuition Service (ATS).
36. The Council policy says its responsibilities include:
• To have a named officer responsible for the education of these children
• To work with schools when it is clear a child will be away from school for fifteen days or more because of health needs (including mental health needs).
• To make alternative arrangements when a child would not receive a suitable education in a mainstream school because of severe or longer-term health needs. Support will be made to the education setting by ATS.
37. The policy says ATS can provide:
• advice to schools on the procedures to be followed when a child is absent from school as a result of medical difficulties;
• where appropriate, education for children both at agreed locations such as libraries, their school and if necessary, in the home, and online;
• education which is tailored to the individual child’s needs as advised by the referring medical professional, the family and the school;
• regular monitoring and evaluation of the child’s progress;
• re-integration planning and support be it with the child’s existing school, or a new placement;
• close liaison with school based and external partners/professionals – including CAMHS and other health professionals;
• close liaison with the family around the child’s education, but not decisions around their onward school placement.

38. The policy says where a school/health professional believes a child requires medical tuition, a fully completed referral form and, as soon as reasonably possible, an accompanying letter of evidence from a senior health professional is required. This should detail the medical issue, ongoing treatment, hours of education the child can access, indicate the amount of time the tuition may be required and where medical tuition can take place.
39. Where a pupil comes under the ‘otherwise’ criteria of s.19 Education Act, the Council will consider the case via a referral to ATS.
40. Tuition may be provided while a setting via an EHC plan is sought. The offer is usually through online activities supported by a teacher.

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What I found

Key facts

41. Ms X’s son was attending school but developed emotional based school avoidance. Ms X considers the Council should have intervened to provide alternative education from February 2022.
42. School records show attendance in February 2022 was at 60%.
43. Ms X’s son was added to the school’s special educational needs (SEN) register in Spring 2022.
44. The Council’s ATS service received a referral from the school in Spring 2022. The only evidence supporting medical absence was a letter from the General Practitioner with a transcript of a phone call between Ms X and the mental health crisis team. The letter acknowledged Ms X’s son was struggling to attend school for mental health reasons but did not set out details of treatment, whether medical tuition was required, or if so for how long. It stated distress at attending school meant Ms X’s son could not currently attend regularly.
45. ATS promptly accepted the referral and offered online tuition while Ms X’s son waited for a teacher to be allocated for medical tuition.
46. Records show the Council checked Ms X’s son was set up with online learning platforms. A month and a half after receiving the referral, a teacher was allocated for 1.5 hours per week in addition to online learning platforms to be used independently.
47. Evidence provided by the ATS service shows 1.5 hours was based on what the service could resource, not the amount of education Ms X’s son could manage. In addition, a ‘work pack’ was provided by school for Ms X’s son to complete at home and Ms X took her son to the school reception for a ‘welfare check’ once a week.
48. Records show Ms X’s son struggled to engage at all with the work set by school but had almost 100% attendance with online teaching.
49. The school put in place a SEN Support plan. A review at the end of the Summer term, between the school and ATS teacher, showed the school had been unable to implement support for social, emotional and mental health needs or special educational provision due to absence. The ATS tutor was working only on maths targets.
50. A transition plan to return to school in September 2022 was drawn up following the review meeting. It is unclear whether Ms X or her son had any input into this, but it does not appear the plan was implemented because records in 2023 indicate the Council considered the school had failed to contact Ms X about the transition plan.
51. A request for an EHC needs assessment was accepted by the Council in Summer 2022. A draft EHC plan was issued in Winter 2022.
52. In September 2022 Ms X complained about the amount of tuition. Her son had not returned to school, and she did not consider 1.5 hours maths teaching per week was compatible with the Council’s responsibility to provide fulltime suitable alternative education.
53. The Council obtained advice from an Educational Psychologist. This acknowledged the difficulties Ms X’s son had attending school and stated a gradual and supported transition was required to school. The report said further medical evidence was being sought.
54. The Council issued a final EHC plan before Christmas 2022. This named the current school although the school’s response to consultation stated it did not consider it could meet needs and all attempts at reintegration had failed.
55. Online tuition continued at 1.5 hours twice per week.
56. Ms X appealed the final EHC plan to the SEND Tribunal. A hearing date of 2024 was given.
57. As part of the Council’s response to the appeal, the Council took the following steps in early 2023:
• The family’s needs were considered for a Child Around the Family (CAF) discussion, however it was agreed a CAF was not needed.
• ATS and the SEN case officer met. The SEN officer notes ATS was providing 1.5 hours tuition per week. The records state this was arranged by school, so the Council had ‘no knowledge’. Notes question the legitimacy of the absence and medical evidence.
• The Council asked ATS if it could increase its offer and if not, the case officer noted a request for more tuition would need to be made to the Council’s panel. ATS said they could not offer more than 1.5 hours as were ‘inundated’.
• The Council contacted ‘health’ for an assessment.
58. The request to the Council’s panel was delayed.
59. In late Spring 2023 the parties agreed to resolve the appeal when a place was offered at a school with smaller class sizes.
60. The final EHC plan issued in late 2022 indicated Ms X’s son would receive support in school after a gradual reintegration. Special educational provision in the final plan included therapeutic support alongside academic and language interventions.
61. Ms X provided me with details of expenses incurred to support her child’s education while they were out of school:
• Materials and activities.
• I.T. and other equipment for tuition.
• Sports equipment and PE sessions
• Sports lessons.
62. Ms X says her husband had to reduce work hours and change role to support her and their son, reducing his income to allow her to support her son’s education.

Council’s complaint response

63. The Council’s stage one response said Ms X’s son was on roll at a school, undergoing EHC needs assessment and receiving ATS tuition and work to complete independently. It said the SEN case officer was in regular contact.
64. Ms X disagreed with the response as it did not address that tuition was only 1.5 hours per week and Ms X said there had been no contact with the case officer named, Ms X did not know who this person was.
65. An independent officer (IO) completed a stage two investigation. This noted Ms X was seeking ‘compensation’ for lost education and the distress caused and for the Council to name a different school in the EHC plan.
66. The Council told the IO, in addition to ATS tuition, Ms X’s son had access to group lessons in four subject areas, although he was not currently engaging in these. The IO noted the Council was told (presumably by the school) Ms X’s son was receiving a ‘full home learning programme’. The IO concluded as the Council had accepted requests for tuition, and group lessons were offered, there was no procedural fault by the Council and did not uphold the complaint.

Documents provided by the parties

67. Documents provided to me in response to my enquiries of the Council stated that group lessons for primary age students did not start until September 2023 and the ATS tutor had never signed Ms X’s son up for group lessons.
68. Ms X provided me with a copy of her grounds of appeal to Tribunal. This indicated her child’s absence was a consequence of the Council naming a school Ms X considered unsuitable. The grounds of appeal indicate Ms X considered her child’s anxiety would reduce if a different type of school was named in the EHC plan.

Scope of investigation

69. We have jurisdiction to consider Ms X’s complaint about loss of education only up to when the Council named a school in the final EHC plan. There is no evidence Ms X’s child was medically unfit to attend any school. The grounds of appeal support absence due to anxiety was linked to the type and suitability of the school named, a decision which Ms X has appealed. The Ombudsman cannot investigate where loss of education is a consequence of a decision to name a school a parent considers unsuitable and the right of appeal about this decision has been used. (Local Government Act 1974, section 26(6)(a))

Findings

Fault

70. The Council was aware Ms X’s child was absent from school in Spring 2022. While it later raised concerns in 2023 about the medical evidence and whether the absence was legitimate, it accepted the evidence in 2022. Ms X’s child’s absence was authorised. No action was taken to enforce attendance.
71. The Council did know the amount of tuition being provided was restricted to 1.5 hours a week, because this was through its own ATS service from Spring 2022.
72. Online learning platforms and work packs were provided but Ms X’s child could not complete work independently and school evidence shows no progress was made in any area, including any reintegration.
73. The ATS tuition of 1.5 hours was limited to maths and there was a delay in this being put in place.
74. There is no evidence of a ‘full learning programme’. There is no evidence group online taught lessons were available to Ms X’s child in 2022 or even that these were offered to any pupils in that age group at that time. The Council’s complaint response was incorrect to state group lessons had been offered.
75. Tuition of 1.5 hours per week, in maths only, does not represent fulltime suitable alternative education.
76. I find the Council failed to provide provision in accordance with its legal duty under s.19 Education Act 1996. This was fault and caused injustice.
77. There is no evidence in 2022 of the Council working closely with the family and professionals to address the issues around the absence or the impact this may have on the family. I have seen no evidence of involvement from the attendance team, social care, or the team responsible for children out of school.
78. Inaccurate evidence was provided to the IO at stage two about the amount of education provided. This was fault in the Council’s complaint handling. The inaccurate information relied upon by the IO casts doubt on the IO’s decision not to uphold the complaint. The inaccurate information meant an opportunity to resolve the complaint at a local level was lost.

Injustice

79. Ms X’s child missed out on education for a period equivalent to two terms.
80. Our Guidance on Remedies says where fault has resulted in a loss of educational provision, we will usually recommend a symbolic payment of between £900 to £2400 per term to acknowledge the impact of that loss on the child. We take into factors such as whether the child has special educational needs and any provision that was made during the period.
81. Ms X incurred quantifiable losses via educational materials, equipment and activities. However, this would imply that Ms X’s child was able to engage in the activities and work Ms X herself provided, which will have off-set lack of provision from the Council.
82. Complainants do have a duty to mitigate their losses, and some of the activities Ms X funded would not usually be part of a mainstream education. Some items may have been purchased in any event, even if fulltime tuition had been provided. I am satisfied Ms X should not have had to purchase IT equipment because councils can usually loan out suitable equipment.
83. We do not usually make recommendations for loss of earnings, especially when a child would have been out of school in any event. However, if more hours of tuition had been provided to equate to a fulltime education, family members would have had more time for their own activities. This loss of time is an injustice.

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Agreed action

Within four weeks of my final decision:

84. The Council will apologise to Ms X for the fault and injustice caused.
85. The Council will pay Ms X on behalf of her child, £3000 for two terms of lost provision, taking into account provision provided by the Council and the family.
86. The Council will pay Ms X £1500 towards expenses she incurred for materials, equipment and activities in 2022.
87. The Council will pay Ms X £1000 to acknowledge her, and her partner’s distress, time, trouble and inconvenience of having to provide additional support during a period when more tuition should have been provided by external tutors.

Within three months of my final decision:

88. The Council will review its process for allocating medical tuition to ensure:
• Where officers have doubts about the legitimacy of the absence, they make enquiries at the time a referral is received and keep decisions under review.
• Processes reflect the recent statutory guidance on school attendance and mental health needs, for example to draw on a range of professionals and work with families to address the factors causing absence.
• Provision is fulltime unless there is medical evidence advising this is not in a child’s best interests.
• There is a plan to address gaps in tuition or a shortage of suitable tutors.
• Officers remain aware the duty to provide s.19 education lies with the Council and it should retain oversight, for example of transition plans, until a child is fully re-integrated into school.
89. The Council will provide us with evidence it has complied with the above actions.

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Final decision

90. There was fault by the Council in failing to provide suitable fulltime education under s.19 Education Act when it agreed medical tuition was required.
91. There was fault in the Council’s complaint handling in that inaccurate information was given to the IO about the range and amount of tuition available.
92. These faults caused loss of education, unnecessary distress, and time and trouble. I am satisfied completion of the recommended actions set out above are a satisfactory resolution to the complaint and injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman