Summary: After the Council found out Mrs B’s son was out of school for medical reasons, it delayed seeking medical evidence from his GP for around a month. This meant the alternative educational provision it eventually delivered was also delayed. It has agreed to apologise to Mrs B and make a symbolic payment to recognise her son’s injustice.

The complaint

1. The complainant, whom I refer to as Mrs B, complains that the Council failed to deliver alternative educational provision to her son, C, while he was out of school for medical reasons.
2. Mrs B says:
• Although C’s GP signed him off school, he could still access education. She told the Council this. But it caused delays by insisting on getting the information from the GP directly.
• The Council had a duty to provide full time education to C once he had been out of school for 15 days, but it did not do so.
• When, two months later, the Council put some support in place, this was only for six weeks and only one or two hours each week. And, when C went back to school part-time, the Council’s support stopped because the sessions clashed with C’s school timetable.
3. Mrs B says these matters meant C missed education. She also says the situation caused her distress.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I considered information from Mrs B and the Council.
8. I considered:
• Relevant parts of the Education Act 1996, and case law.
• The statutory guidance document, ‘Ensuring a good education for children who cannot attend school because of health needs’ (which I refer to as ‘the statutory guidance’).
• The non-statutory guidance document, ‘Working together to improve school attendance’ (which I refer to as ‘the school attendance guidance’).
• The Ombudsman’s guidance, ‘Out of school, out of sight?’, which sets out how we expect councils to fulfil their responsibilities to children who cannot attend school full-time.
• The Council’s inclusion service’s best practice guide.
9. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s responsibilities

10. Councils must arrange suitable education 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. (Education Act 1996, section 19)
11. I refer to this as ‘section 19’ provision.
12. Councils should consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions. They should also work with parents and schools to to draw up plans to reintegrate children to mainstream education as soon as possible. (Out of school, out of sight?)
13. 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 statutory guidance)
14. The Courts have found that it is for a council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
15. If a council decides a child’s health needs prevent them from attending school, it should arrange provision as quickly as possible. (The statutory guidance)
16. All pupils of compulsory school age are entitled to a full-time education. 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. (The school attendance guidance)
17. Modified timetables must be supported by medical evidence. This evidence should set out the child’s needs and explain why they need a modified timetable. If a school is unsure whether it has suitable evidence, the Council can assist the school by contacting medical professionals. (The Council’s best practice guide)

What happened

18. In early March 2022, Mrs B decided C’s attendance at school was damaging his mental health. She withdrew him from school.
19. Shortly after, C’s GP provided a letter which said C was unfit to attend school until further notice because of anxiety.
20. Mrs B notified the Council. The Council said it would need to speak to C’s GP to find out what level of education and support would be appropriate for C. The Council noted that the GP’s decision to sign C off indefinitely was ‘unhelpful’.
21. A week later – in mid-March – Mrs B provided her written consent for the Council to speak to C’s GP.
22. The Council considered a recent report on C from an educational psychologist. It also spoke to the psychologist, whose view was that C could return to school on a ‘gradual re-exposure plan’, involving additional support for C to help him feel safe and secure in school.
23. At the end of March, the Council attended a meeting with Mrs B and C’s school. There was some disagreement about the quality of support the school was providing to C while he was off. The Council said:
• It needed to speak to C’s GP about what education C was capable of receiving. Until it had done so, C could receive no section 19 provision, because the GP letter did not say he could receive education outside school.
• However, in the interim C could access online learning.
• If the plan was for C to return to school on a ‘phased return’, the Council could provide section 19 provision alongside this plan to support it.
24. After the meeting, C’s school arranged a timetable for his phased return to school. This incorporated Mrs B’s views, as she had expressed in the meeting, about specific times and lessons. It also described the online learning available to C.
25. Mrs B says C was unable to do the online work sent by the school, and no alternative was offered. She also refused to send C into school on the phased return, saying that he was unable to go to school unless extra support had been put in place.
26. The Council – a month after first agreeing to do so – contacted C’s GP to ask for more information about C’s ability to engage with education out of school.
27. The school then asked the Council to arrange section 19 provision for C (as his GP had signed him off school). The Council asked its provider to deliver this. But the provider refused, saying its role was to support children to return to school, but there was no plan for C to do so (as the GP’s decision was open-ended).
28. In early May, C was still not receiving an education. The Council arranged a meeting. In the meeting, Mrs B said she would ask the GP to write a letter saying C could receive education, just not at school. The Council said its section 19 provider would then support C to return to school. It said this provision would not be full-time but would be suitable for C’s needs.
29. Following the meeting, Mrs B told the Council that she wanted C to return to school with extra support, but the school would not provide the support.
30. Two weeks later (in late May), C’s GP provided a letter to the Council (over a month since it had first asked for one). The letter said C was ready to return to school on a phased return with support in place.
31. Two weeks later (after half-term), the Council’s section 19 provider started supporting C. And, two weeks after that, C’s school agreed a reintegration plan with Mrs B. C started back at school on a part-time timetable the following week.
32. Although there were some initial disagreements between Mrs B and the school about how much education C was able to engage with, in mid-July they agreed a further reintegration plan.
33. C returned to school full-time in September.

My findings

34. The Courts have given councils the power to decide whether a child’s health needs prevent them from attending school.
35. In C’s case, the Council considered the evidence provided by his GP and his educational psychologist. It decided the GP’s letter did not provide enough information about C’s ability to deal with section 19 provision, or, longer-term, going back to school.
36. This decision was not obviously unreasonable, and the Council was not at fault for trying to get more specific written evidence from the GP. We recommend in our guidance that councils consult with professionals and consider evidence. I will not criticise the Council for trying to do so.
37. However, this process took too long. The Council did not put any section 19 provision in place for C until 51 school days after he stopped attending.
38. Part of this delay was not the Council’s fault. It was waiting for evidence from C’s GP, and, as I have found above, it was not unreasonable that it did so.
39. There was also a period after the GP provided their second letter which did not amount to a delay. The Council put section 19 provision in place three school days later, and C returned to school three weeks after that.
40. However, the Council did not initially write to C’s GP for over a month after Mrs B had given her consent for it to do so (and six weeks after it first said it would).
41. Given that the statutory timescale for councils to arrange education for children out of school is measured in days, not weeks or months, this was a delay for which there was no obvious good reason. This was fault by the Council.
42. Although C’s eventual section 19 provision (and, subsequently, his school timetable) was part-time, this was part of the agreed reintegration plan and was in line with the school attendance guidance, so it was not fault by the Council.
43. Mrs B says the Council’s section 19 provision ended when C returned to school because the sessions clashed. But the evidence shows that C’s reintegration was broadly successful. So this matter did not cause him a significant injustice and I will not consider it further.

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Agreed actions

44. Within four weeks, the Council has agreed to:
• Apologise to Mrs B for its failure to seek medical evidence quickly enough after finding out C was unable to go to school.
• Make a payment of £500 to Mrs B, on behalf of C, to recognise the education he missed because of the Council’s delay.
• Provide us with evidence it has done these things.

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Final decision

45. The Council was at fault for a delay in seeking medical evidence after finding out C was not going to school.

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Investigator's decision on behalf of the Ombudsman