Summary: The Council was at fault for a delay in seeking medical advice after finding out that Ms X’s son was not attending school. However, it then offered him full-time educational provision, for which it was not at fault. When it did seek medical advice, this advice did not support his non-attendance at school. This means the delay is unlikely to have caused him a significant injustice, and we have not recommended that further action be taken.

The complaint

1. The complainant, whom I refer to as Ms X, complains that her son, Y, has been unable to attend school full time since September 2023. She says that, during this time, she has been providing education at home herself. She wants the Council to reimburse her costs.

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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 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)
4. 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

5. I considered:
• Information from Ms X and the Council.
• Relevant law and guidance.
• Relevant Ombudsman guidance.
6. Ms X 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

7. Councils must arrange suitable education for children 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)
8. We refer to this as ‘alternative provision’.
9. When a council is considering whether it has a duty to provide alternative provision, the “acid test” is whether the education already on offer to the child is “available and accessible” to them. (R (on the application of DS) v Wolverhampton City Council 2017)
10. 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”. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
11. It is up to 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])
12. 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)
13. We made recommendations, including that councils should:
• 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.
• 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.

What happened

14. In September 2023, Y’s school contacted the Council and said Y had been refusing to come into school. It had introduced a reintegration plan, which would start with half an hour a day, building up to three hours by October.
15. The Council told Y’s school that it was supportive of reintegration plan. It said it would not make any home learning available for Y, as he had a suitable school place available to him.
16. Y’s school built up the hours on his reintegration plan, until, by November, he was attending school for three hours each day. But then he stopped attending completely. Ms X told the Council that this was because of mental health difficulties. She asked if he could access alternative provision.
17. In mid-November, the Council held a meeting. By this point, Ms X wanted to home-educate Y. Although CAMHS were mentioned in the meeting, there was no consideration of whether Y’s health needs prevented him from attending school.
18. Ms X then asked Y’s school to remove him from its roll. She said nobody could support Y and mainstream education was not suitable for him. However, she agreed to a referral to the Council’s engagement officer.
19. In January 2024, Ms X agreed to a school reintegration plan. This involved two mornings a week at school and three days a week of alternative provision, arranged and paid for the school.
20. Y started this alternative provision in February, and the Council’s engagement officer noted that it went well. However, Y continued to refuse to go to school.
21. In March, the Council agreed to refund what Ms X had spent on Y’s education. This amounted to £322.96.
22. In April, after another meeting, the Council asked Y’s school what it was doing to re-engage Y with school on the two days he wasn’t in alternative provision. The school said Y was expected to attend and it would not send work home because Ms X was “stating he is not medically fit for school”.
23. The Council spoke to CAMHS, who said the issue was that Y was refusing to attend school, not that he was medically unfit. The Council noted that there was no professional advice saying Y could not attend school.
24. The Council confirmed to Ms X that Y would continue in alternative provision until the end of term. It recommended a review meeting took place then.
25. The Council also referred Y to another provider which ran courses for children who were facing mental health difficulties that prevented them engaging with education.
26. In May, the Council held a further meeting with Ms X and with Y’s school. The Council confirmed that its expectation was that Y reintegrated back into school. However, it acknowledged that, according to CAMHS, such a reintegration could take a long time. It confirmed this to Ms X in writing after the meeting and said Y’s school would support a gradual reintegration.
27. CAMHS then discharged Y from its service with recommendations for a reintegration back into school.
28. Ms X says that, because Y refuses to attend school on the days he is supposed to be there, she continues paying for provision for him. She says that, since being reimbursed in March, she has spent over £800 on his education.

My findings

29. It is not for Ombudsman to decide whether a child can or cannot attend school. Equally, we cannot decide whether a Council should deliver (or should have delivered) alternative educational provision to a child.
30. Instead, we investigate whether a council has acted reasonably and in accordance with its statutory responsibilities. This includes whether it has properly considered its duties towards a child who might not be able to go to school.
31. From January 2024 onwards, the Council:
• Spoke to relevant medical professionals and gained advice on Y’s ability to attend school.
• Decided, with reference to medical advice, to try and reintegrate Y back into school.
• Offered some alternative provision as part of Y’s reintegration, despite no evidence that he was unable to attend school.
• Made education available to Y which was not obviously less than full-time.
32. In doing these things, the Council acted in accordance with its statutory responsibilities, so was not at fault.
33. However, there was a delay before the Council sought medical advice on Y’s case. Between November 2023 to January 2024, the Council:
• Knew that Ms X was claiming Y could not attend school for health reasons.
• Did not seek advice from CAMHS, although it was aware they were involved in Y’s care.
• Did not consider seeking advice from any other medical professional, such as Y’s GP.
• Did not offer Y any alternative educational provision.
34. This was fault by the Council.
35. Given that the Council did subsequently seek medical advice, and that this advice did not support the need for Y to be out of school, it is unlikely that the delay caused Ms X or Y a significant injustice. This is particularly the case as the Council has already refunded Ms X for what she spent on educational provision during that period.
36. Consequently, although the Council was at fault, I will not recommend that it takes any further action.

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Final decision

37. The Council was at fault, but this caused Y no significant injustice.

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Investigator's decision on behalf of the Ombudsman