Summary: Dr X complained the Council did not consider its section 19 duties when her child was too unwell to attend school. This meant her child was unable to access education. We have found the Council at fault for a delay in providing access to suitable provision after receiving a medical letter. This caused distress, uncertainty and frustration for Dr X and her child. The Council has agreed to apologise, make a symbolic financial payment and remind its staff of the Ombudsman’s guidance on how we expect councils to fulfil their responsibilities to provide education for children who do not attend school full-time.

The complaint

1. Dr X complained about the Council’s actions when her child, B, was too unwell to attend school. Dr X says the Council did not consider its section 19 duties and asked the family to pay for a private medical report. Dr X says this led to their child missing education between November 2023 and April 2024, as well as causing stress and having a financial impact. Dr X would like the Council to review its procedures.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. Under our information sharing agreement, we will share the final decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

5. We discussed the complaint with Dr X and considered the information she provided.
6. We made enquiries of the Council and considered its response.
7. Dr X and the Council had an opportunity to comment on the draft version of this decision. I considered any responses I received before making a final decision.

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What I found

Legal and administrative background

Section 19 duty

8. 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. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
9. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
10. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
11. 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”.
12. The Courts have found that it is a judgement for the 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]).
13. 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
14. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.
15. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.
16. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.

What Happened

17. B’s school contacted the Council in November 2023 due to B being unable to attend school. The school told the Council B’s case was complex and her parents reported she was suffering from anxiety which was preventing her from attending school. B had been referred to the neurodevelopmental team (NDT) and a child wellbeing practitioner for support with her anxiety.
18. In response to our enquiries the Council told us it decided to take a ‘support first’ approach so a Council attendance officer arranged a team around the family (TAF) meeting.
19. The TAF meeting took place 4 days after the school contacted the Council. During the TAF meeting, B’s parents made the Council aware B had received an Autism diagnosis in September 2023. The Council were also told B’s General Practitioner (GP) had been contacted and she had been referred to Child and Adolescent Mental Health Service (CAMHS) to support with anxiety and school refusal, however there was a waiting list for this service.
20. The school offered to support B with mindfulness and lunchtime support sessions if she could attend school. School also agreed to look at the option of sending work home to ensure B did not fall behind.
21. It was agreed Dr X would continue to encourage B’s attendance at school and they would maintain regular contact. The letter sent to B’s parents which summarises this meeting and the agreed outcomes does not say a reintegration plan was discussed or put in place.
22. In late November 2023 the attendance officer completed a review of B’s attendance. B had not attended school since the TAF meeting, so the attendance officer arranged a follow up meeting.
23. In early December 2023 the attendance officer wrote to Dr X, asking her to provide medical evidence that B could not attend school. A second letter to Dr X said the school would no longer authorise B’s absences. This letter reminded Dr X of her legal duty to ensure B attended school. The letter explained failure to secure B’s school attendance could result in a penalty notice or a summons to attend Magistrate’s court.
24. A second attendance meeting took place in the first week of December. The attendance officer agreed to provide early help information and to contact B’s GP to seek medical evidence for her absences. The letter sent to B’s parents which summarises this meeting and the agreed actions does not say a reintegration plan was discussed or put in place to support B accessing school.
25. The attendance officer wrote to B’s GP the following day. They asked the GP to provide ‘any relevant medical information that may prevent B from regularly attending school’.
26. The GP responded at the end of December, providing medical information which detailed B had a diagnosis of autism, has a long standing issue of school refusal and she finds the school environment extremely stressful. The information provided by the GP showed Dr X first sought support with B’s school refusal in April 2023. The cover email of the GP’s response said the attached medical information was a probable cause for her non-attendance at school. In response to our enquiries the Council told us the GP did not provide the information it needed to assess whether B could attend school. However, in response to the draft decision, the Council told us it did act on the evidence provided by the GP and asked the school to complete a referral to the Hospital Outreach Programme (HOP).
27. At a meeting in early January the attendance officer told B’s parents the GP had not provided medical evidence which confirmed whether B’s autism or any other medical difficulty prevented her from attending school.
28. The attendance officer asked Dr X to provide medical evidence from B’s private therapist. The attendance officer told B’s parents they could complete a HOP referral once it received the therapist’s evidence. The Council told Dr X if she could not produce this evidence, it would issue a court warning letter. This meeting also agreed the following actions:
• B’s school teacher would visit her at home.
• The school would request an at home Educational Therapy assessment.
29. An educational psychologist completed an assessment of B in January 2024. The school completed a HOP referral in February 2024.
30. In February 2024, following a complaint made by Dr X, a member of the Council’s Safeguarding and Inclusion team met with the family and relevant professionals to discuss strategies for B’s gradual reintegration to education.
31. A HOP CAMHS clinician completed an assessment of B in March 2024 and determined she was medically unable to attend school.
32. The HOP accepted B’s referral, and alternative provision began in April 2024.

My findings

33. Despite the Council telling us it prefers to focus on a ‘support first’ approach before considering its section 19 duty, I have seen no evidence the TAF meetings between November 2023 and January 2024 resulted in the Council working with the parents to develop a reintegration plan to support B to access education. Although support was offered if B could attend school, there is no mention of a reintegration plan being discussed until the meeting with the safeguarding and inclusion team in February 2024. This is fault which caused uncertainty for B and Dr X.
34. The Council told us it acted on the GP evidence it received in December 2023 to complete a referral for alternative provision. The Council acted on this evidence to secure a HOP referral but did not secure access to suitable education until April 2024. This is a delay of approximately 4 months. This is fault which caused distress, frustration and uncertainty.
35. There is no fault in the Council advising Dr X of its powers to prosecute parents for a child’s non-attendance at school.
36. There is no fault in the Council asking Dr X to provide medical evidence from B’s therapist to support the Council’s decision making. The Council requested this evidence as B was being supported by the therapist and the information would have been relevant to the Council’s decision making.

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Agreed action

37. Within one month of the final decision the Council will:
• Apologise to Dr X for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.
• Make a symbolic payment of £1500 to Dr X to recognise the uncertainty, distress and frustration caused by the delay in securing alternative provision for B. This is calculated in line with our guidance on remedies where fault results in the loss of education.
38. Within three months of the final decision the Council will share this decision with its attendance staff and remind them of our 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

The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. We uphold this complaint. The Council has agreed to remedy the injustice caused by the faults identified.
     

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman