Summary: Mrs B says the Council failed to provide education when it knew her son could not return to his allocated school due to medical reasons. I have found no fault in the Council’s decision not to put in place alternative provision. The Council failed to ensure the therapeutic provision the school agreed to put into place was followed up on. An apology, payment to Mrs B and a reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council failed to provide education to her son from January 2023 when it knew he could no longer return to his allocated school due to medical reasons.
2. Mrs B says this has caused her significant distress and she has had to fund her own provision for her son. Mrs B says her son has missed out on education.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. 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

8. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mrs B and the organisation had an opportunity to comment on my draft decisions. I considered any comments received before making a final decision.

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What I found

What should have happened

Legislative background

10. Parents have a duty to ensure their children receive a suitable, full-time education. Most do this by sending their children to school. (Education Act 1996, section 7)
11. Councils have a responsibility to ensure the child receives an education. They may take legal action against parents to enforce attendance at school through school attendance orders, penalty notices or prosecutions. (Education Act 1996, part VI, chapter 2)
12. Section 19 of the Education Act 1996 says local authorities are responsible for the provision of suitable education for children of compulsory age who, 'by reason of illness, exclusion or otherwise' may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child's age, ability and aptitude, including any special needs. The provision may be part-time where the child's physical or mental health means full-time education would not be in their best interests.

The Council’s medical policy

13. This says nationally, all schools are required by law to make arrangements for supporting pupils on the roll of their school with a medical condition.
14. In 2013 the DfE published statutory guidance for Local Authorities entitled ‘Ensuring a good education for children who cannot attend school because of health needs’. The statutory guidance is clear that in most circumstances where a child and young person (CYP) has a health need, they will receive suitable education that meets their needs from their school, without the need for the intervention of the Local Authority.
15. Where it is clear that the CYP’s medical condition will not allow them to attend school, schools should request parents/carers provide medical evidence to allow the LA to consider whether interim alternative provision is appropriate.
16. The Council has a provider for interim education support for children who are medically unfit to attend school (‘the provider’).
17. It is recognised there has been an increase in the number of families reporting that CYP are too anxious to attend school. Schools are encouraged to adopt a flexible approach to reintegrate pupils back into school and to work closely with services to build individual packages of support for a CYP’s return. During this period of reintegration there is an expectation that the child or young person remains on the roll of their current school. If necessary the school can seek advice from the inclusion officer regarding the recording of attendance during this time.
18. When the Council’s provider receives a referral it will arrange a meeting. Where support is agreed, the provider’s teachers will oversee the provision for pupils in alternative suitable venues, or, where appropriate, in the pupil’s home. It is important for all parties to agree that the aim of any support and interim provision will be to return the CYP to school as soon as is practicable.

What happened

19. Mrs B’s son attended a primary school up until December 2022. Mrs B’s son has special educational needs and suffers from anxiety. He struggled to attend school. Mrs B moved her son to a new primary school in January 2023. Mrs B’s son attended for half a day on 25 January. Mrs B did not return her son to the school as she said he could not cope. Mrs B told the school she would not return her son due to his anxiety levels. The school said half a day was not enough time to decide whether Mrs B’s son could succeed at the school and said it would make a referral to the inclusion officer. Mrs B had already provided the school with a copy of a paediatrician’s report and asked the school to consider that and her request to refer her son for alternative provision.
20. The Council’s inclusion officer spoke to Mrs B in February 2023.
21. Mrs B contacted the inclusion officer at the beginning of March to ask whether it had arranged alternative education. The inclusion officer told Mrs B after considering the information and reports provided by the parents she would look to support Mrs B’s son to reintegrate back into the school based on the advice stated in the report submitted.
22. Mrs B again asked for alternative provision for her son later in March. In response the Council’s area inclusion manager told Mrs B the medical evidence she had provided did not satisfy it the school had been given an opportunity to integrate her son while implementing the strategies the paediatrician had recommended in the report. The Council told Mrs B this meant her son’s absence from school was treated as unauthorised as there was no medical evidence her son could not attend school. The Council suggested measures such as a reduced timetable to build her son’s confidence.
23. At the beginning of April Mrs B provided the Council with a psychiatrist report to show her son had a medical reason not to attend school. Mrs B asked for alternative provision. The Council agreed to take the case to its provider although there is no evidence it asked the school to complete the referral. The school completed the referral at the beginning of May. The Council’s medical panel considered the case and asked the provider to arrange a home visit.
24. The provider visited Mrs B on 18 May. At that meeting the provider outlined the therapeutic provisions the school could put into place with the aim to reintegrate Mrs B’s son into the school. Mrs B agreed to the therapeutic provisions but did not consider reintegration into the school appropriate. In response the Council said it had recommended the school be used as a learning base, providing access to facilities and resources so her son could transition to a suitable and appropriate setting. Mrs B said she did not consider that appropriate as she did not consider the school suitable.
25. The school offered Mrs B some therapeutic provisions in June 2023, which Mrs B agreed to explore. It subsequently became clear one of those provisions was not available until September.
26. At the end of June Mrs B contacted the Council as she believed her son needed a setting with an occupational therapist and speech and language therapist on site, which was not available at the allocated school.
27. The Council told Mrs B her request for an education, health and care plan (EHC plan) would be considered by the panel on 26 July. The Council told Mrs B if the panel agreed to issue an EHC plan and felt a specialist setting would be best its provider would oversee the alternative provision while seeking a school place. The Council said if the panel named a mainstream school the Council would provide the allocated school with the funding needed to provide the alternative provision with a view to getting Mrs B’s son back into the school.
28. The panel considered Mrs B’s case but asked the school for more information about how it would use the funding to support reintegration. The school responded when the new term started in September 2023. The school said it could not provide any further information as Mrs B’s son had only attended for half a day. The school said it had offered nurture sessions but Mrs B had said her son did not feel able to attend. The school made clear it could not meet Mrs B son’s needs if he would not attend the school and suggested alternative provision while the Council sought a specialist school placement.
29. The Council’s panel considered Mrs B’s case at the beginning of October and decided a mainstream school was appropriate with additional funding. The panel recommended a meeting with the allocated school to discuss integration options and the provision the school would need to put into place with the additional funding.
30. The Council issued an EHC plan in January 2024 which names the allocated school. Alongside that there is a provision map in place to address the EHC plan outcomes.

Analysis

31. Mrs B says the Council failed to provide education to her son from January 2023 when it knew he could no longer return to his allocated school due to medical reasons. Having considered the documentary evidence it is clear Mrs B removed her son from the allocated school in January 2023 after he had attended for half a day as she was concerned about the impact on his mental health. It is also clear from the documentary records both the Council and the school said the school had not been given enough time to work with Mrs B’s son to enable him to attend and he has remained on the roll of the school.
32. I am satisfied the Council explained to Mrs B on 13 March 2023 it considered the school could implement the measures set out in the paediatrician’s report Mrs B had provided to encourage her son’s integration into the school. I am therefore satisfied the Council did not share Mrs B’s view about whether her son could attend the allocated school. In those circumstances I cannot criticise the Council for failing to put in place alternative provision when Mrs B removed her son from the allocated school in January 2023 as, from the Council’s point of view, suitable education was available.
33. I recognise though Mrs B provided the Council with a psychiatric report in April 2023. That psychiatrist recommended alternative education provision as she did not consider Mrs B’s son could attend mainstream school. I am satisfied the Council dealt with that information in accordance with its medical policy by referring the case to the provider. I am also satisfied the provider discussed Mrs B’s son’s case with the allocated school and met with Mrs B to discuss her concerns.
34. It is clear from the Council’s communications with Mrs B following that meeting in May 2023 it considered the allocated school remained appropriate and therapeutic interventions should be put into place in the interim, which the school was to arrange. I am satisfied Mrs B decided one of those interventions was not appropriate for her son. The other could not be put into place due to lack of capacity.
35. The actions of the school do not fall within the Ombudsman’s jurisdiction. However, in this case as the Council’s provider was involved I am concerned it did not identify the therapeutic interventions planned by the school had not been put into place. There is no evidence this was actioned until Mrs B met with the provider in November 2023. The provision now in place remains arranged by the school as the Council’s view is the allocated school is suitable for Mrs B’s son. Failure to follow up with the school to make sure the interventions were in place is fault.
36. Mrs B says if the Council had ensured the school put the interventions which are now planned in place earlier her son would not have deteriorated. Mrs B clearly sees the current interventions as alternative provision. However, I am satisfied the provisions now put into place are additional provision arranged through the school rather than the Council accepting Mrs B’s son cannot attend the allocated school. That is clearly not the Council’s view given it has issued an EHC plan naming the allocated school.
37. In those circumstances I could not say fault by the Council means Mrs B’s son missed out on education provision. From the Council’s point of view education provision has always been available at the allocated school. I have made clear that is not a decision I can criticise given the Council reached that decision properly.
38. However, if the Council had maintained contact with the school as it should have done it would likely have identified the issues with the therapeutic provision. I therefore consider Mrs B has suffered an injustice as she is left with some uncertainty about whether her son could have received some therapeutic provision earlier. To remedy that I recommended the Council apologise and pay Mrs B £300. I also recommended the Council ensure when it intends to provide additional funding to a school to put in place therapeutic intervention it makes sure it follows that up with the school to ensure the provision is in place. The Council has agreed to my recommendations.
39. I appreciate Mrs B believes a specialist school placement is appropriate for her son and therefore the Council should have put in place alternative provision rather than arranging for the school to put in place some therapeutic provision. However, that is not a view shared by the Council. As the Council has now issued an EHC plan naming the existing school if Mrs B is dissatisfied with that she will need to appeal.

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Agreed action

40. Within one month of my decision I recommend the Council:
• apologise to Mrs B;
• pay Mrs B £300; and
• remind officers that when it intends to provide additional funding to a school to put in place therapeutic intervention it follows that up with the school to ensure the provision is in place.

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Final decision

41. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman