The Ombudsman's final decision
Summary: Ms X complained the Council failed to provide suitable alternative provision whilst her daughter, C, was unable to attend school. We find the Council was at fault for failing to provide alternative provision. We have recommended that the Council make a financial payment for the loss of education and review its policy.
The complaint
Ms X complained the Council failed to provide suitable alternative provision whilst her daughter, C, was unable to attend school. She says her daughter’s attainment has dropped considerably.
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 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) 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.
How I considered this complaint
I spoke to Ms X about her complaint and considered the Council’s response to my enquiries.
Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
The law and guidance Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1)) Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
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) The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) There will be a wide range of circumstances where a child has a health need but will receive suitable education that meets their needs without the intervention of the Local Authority – for example, where the child can still attend school with some support; where the school has made arrangements to deliver suitable education outside of school for the child; or where arrangements have been made for the child to be educated in a hospital by an on-site hospital school. We would not expect the Local Authority to become involved in such arrangements unless it had reason to think that the education being provided to the child was not suitable or, while otherwise suitable, was not full-time or for the number of hours the child could benefit from without adversely affecting their health. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) What happened C suffers from severe asthma and allergies. She stopped attending school in spring 2020 to shield during the COVID-19 pandemic. She returned to school in the Summer term of 2021.
In the Autumn term of 2021 C returned to school but began to display signs of school refusal. On one occasion C was physically carried into school.
In late September 2021 C was placed on a part-time timetable. She attended for short periods of time in the morning. The Council became involved at this point. Children and Adolescent Mental Health Services (CAMHS) carried out a preliminary review at this time and recommended that C remain engaged with school.
In mid-October a Local Authority Attendance Meeting (LAAM) was held. The Council discussed Ms X’s concerns with her including her concern that C was only receiving five hours per week, which was non-educational. The Council discussed arranging provision outside of school and agreed the school would look at budgets for this.
At the end of the autumn term there was a further discussion by email between the Council and CAMHS about C. CAMHS recommended some tuition alongside the time C was spending in school to build her academic confidence. The school informed the Council in January that the CAMHS officer was now saying tutoring would be detrimental, though CAMHS told us its own records do not support that. Following this no tutoring was arranged.
CAMHS also proposed discussing increasing the time C was spending in school in January. C did not increase the time she was spending in school.
A Team Around the Child (TAC) meeting was held in April 2022 to discuss C accessing learning within school. C’s timetable was discussed and it was confirmed she was not being pressured to complete work. The school noted that any absence resulted in lost progress in terms of C’s willingness attending class with peers. The school also stated it felt it could meet C’s needs with Special Educational Needs (SEN) support in school and it was planning a new timetable.
Ms X raised the issue of home tutoring at the meeting. The Council advised it would not offer this because the school was providing suitable education and she was able to attend school.
In early May Ms X contacted the Council through Special Educational Needs and Disabilities Information Advice and Support Services (SENDIASS) to raise concerns about the lack of class time her daughter was receiving. Following this the Council was notified of C’s timetable. This showed that she was receiving 40 minutes of writing with a peer three days a week, 40 minutes of reading two days a week and one hour 20 minutes of maths five days a week.
C was awarded a place at the Council’s medical school in the summer of 2022. She began school at the start of September 2022.
Findings
Although C was receiving an education in school this was not full time and therefore there was an obligation for the Council to become involved in the arrangements. The Council had a duty to consider whether the education was what C could cope with and whether it was equivalent to that received by her peers particularly in English, Maths and Science.
I have not seen any evidence that the Council took steps to establish what part-time provision was being provided to C until April 2022. Ms X had also raised concerns in October and December 2021 that the provision was colouring based and that C was not attending for the full sessions. There is no evidence to show that the Council considered these concerns or made enquiries about these. The Council’s failure to investigate these concerns and undertake its duty to ensure the part-time provision was sufficient is fault.
The early advice from CAMHS recommended C remain engaged with school. It did not exclude provision alongside attendance at school as well. The Council also agreed to look into arranging out of school provision, based on the available budget, in the LAAM meeting in October 2021. No provision was arranged following this meeting. Alternative provision should not be denied based on the budget available and it is fault to do so.
The issue of alternative provision was raised again in December 2021. CAMHS recommended that tutoring was arranged. Before this was put in place the school emailed the Council in mid-January 2022 with an update. It advised at a recent CAMHS visit it was told home tutoring would be detrimental to C’s progress. I can see no correspondence directly between CAMHS and the Council at this time or that the school provided evidence in support of its statement. I cannot see that it sought any clarification on this point. Given the short space of time, with the Christmas holidays, and two substantially different points of advice I consider it fault the Council did not clarify this.
I note that when Ms X raised the issue of home tutoring again in April it was refused on the basis the Council felt that the provision provided by the school was sufficient. The reason for the Council not offering home tutoring has altered without any clear clarification as to why.
As a result of the Council failing to arrange home tutoring for C she only received a partial timetable of education between the end of September 2021 and July 2022. There was no medical evidence to indicate C was unable to cope with more than this. This timetable covered English, maths and PE. C has missed out on the subjects the government recommend alternative provision should include as there was no science or IT. She has also missed out on other compulsory subjects that her peers would have been receiving in school.
It is not for the Ombudsman to say the amount of education that would have been suitable for C between late September 2021 and July 2022. There is a dispute regarding how much time C was spending in school and there is no evidence to confirm this. It is clear C was able to achieve in line with her peers and was receiving some provision during this time. I will recommend a financial remedy taking into account these factors.
The Council provided Ms X with a changing position on whether home tutoring would be provided. This has caused her uncertainty and worry about her daughter’s potential achievement. Not only in her year six Standard Assessment Tests (SATs) but also long term in her move to secondary school. She has chased the Council on several occasions to express her concerns without these being addressed directly.
The Council’s alternative provision policy notes it will be commissioned when a pupil is permanently excluded, cannot attend for health reasons, has no school place or is not on a school roll. It says schools are responsible for arranging alternative provision for fixed term exclusions. The government guidance refers to school roll and other reasons separately. The Council guidance should reflect this and include reference to other ‘authorised’ reasons in terms of when the Council will commission provision.
Recommended action The Council will within one month of this decision: Apologise to Mrs X and C for the injustice caused by the faults found above.
Pay Ms X, on behalf of C, £900 for nine months, excluding holidays, of missed education.
Pay Ms X £150 for the frustration and distress she has experienced during this time.
The Council will within three months of this decision: Review its alternative provision policy to ensure it addresses the Council’s approach to absences for ‘other reasons’.
Final decision
I have completed my investigation. I found fault which has caused injustice. I have recommended action to remedy the injustice and prevent reoccurrence of the fault.
Investigator's decision on behalf of the Ombudsman