Summary: Ms X and Mr Y complain the Council failed to make sure their daughter, B, received suitable educational provision when she became too unwell to attend school. The Council has accepted it incorrectly refused to accept the private medical reports Ms X and Mr Y provided and provided several remedies. However, we find, because of this fault, the Council failed to arrange suitable educational provision for B. To remedy this, the Council has agreed to apologise to B, Ms X and Mr Y, make a payment for the time B was without suitable provision and several service improvements.

The complaint

1. The complainants, who I shall refer to here as Ms X and Mr Y, complain about the actions of the Council and its Education Welfare Officer (EWO) when their daughter, B, began experiencing absences from school due to illness.
2. They complain the Council’s EWO:
1. failed to accept the medical evidence provided by Ms X and Mr Y, which provided details of B’s medical conditions. They say the Officer incorrectly refused to accept this evidence because it was privately funded; and
2. behaved in a way that meant the complainants felt “pressured and intimidated” by the EWO’s efforts to improve their daughter’s school attendance.
3. They complain the Council:
1. wrongly took action against them when B’s absences from school began. They say the Council incorrectly decided they had failed in their duty, as parents, to ensure B received an education at school or otherwise. They say this meant the Council failed to accept B’s absences were in fact due to illness;
2. failed to put in place alternative education for the period B was out of education due to illness;
3. delayed in responding to their complaint; and,
4. failed to fully respond to their complaint.
4. Ms X and Mr Y say they have experienced upset and distress. They say they have been put to time and trouble trying to resolve things so B has access to the education she is entitled to. They say they incurred financial costs to cover B’s online tuition.
5. Ms X and Mr Y say B has missed out on a suitable education for two years. They say this has affected her mental and emotional wellbeing. They say B has experienced stress and distress as she can see the impact the situation has had on her parents.

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What I have investigated

6. I have investigated events between summer term 2019 and end of November 2020.
7. Matters, which I cannot investigate, are set out in the last paragraph of this statement.

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The Ombudsman’s role and powers

8. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
11. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
12. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
13. 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)

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How I considered this complaint

14. I considered the information and documents provided by Ms X, Mr Y and the Council. I spoke to Ms X and Mr Y about their complaint.
15. Ms X, Mr Y and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.
16. 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.

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What I found

What should have happened

Section 19 of the Education Act 1998

17. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
18. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ (the statutory guidance) says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
19. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
20. 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)
21. 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. The statutory guidance says: If they receive one-to-one tuition the hours of face-to-face provision could be fewer as the provision is more concentrated.
22. Once a council has identified a child needs alternative education, it must arrange this as quickly as possible.
23. The Government’s statutory guidance outlines councils’ responsibilities towards children with medical health needs. It states that councils should:

• have a written, publicly accessible policy statement which explains how it will meet its legal duty towards children with additional health needs. This policy should make links with related services in the area, such as the Children and Adolescent Mental Health Service (CAMHS);
• have a named officer responsible for the education of children with additional health needs, and parents should know who that person is; and
• not “have processes or policies in place which prevent a child from getting the right type of provision and a good education” or “inflexible policies which result in children going without suitable full-time education”.

24. Councils should provide education as soon as it is clear the child will be away from school for 15 days or more and where suitable education is not being provided by the school.
25. We issued a focus report in September 2011, amended in January 2016, “Out of sight…. out of mind?”. This gives guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report made six recommendations for councils, including to:

• 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 in coming to decisions;
• choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where able; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

26. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
27. The Council has commissioned a Pupil Referral Unit (PRU), referred to here as College P, to provide education for children who cannot attend their school because of confirmed medical needs. It says College P provides education for children and young people of statutory school age who are temporarily unable to attend school because of physical or mental illness or complex health needs.
28. The Council’s website says the service also works flexibly with schools to ensure continuity and return pupils to mainstream schooling if possible.

What happened

29. Ms X and Mr Y’s daughter, B, has diagnoses of Myalgic encephalomyelitis (ME, also known as Chronic Fatigue Syndrome (CFS)), a number of associated conditions, and chronic urinary tract infection (Chronic UTI).
30. By the end of April 2019, B was no longer attending school after experiencing a severe relapse caused by ME/CFS. B was in Year 7 at the time and attending a mainstream secondary school, School D.
31. At the beginning of June, School D, referred B’s absences to the Council’s Education Welfare Service (EWS). The School said it did not have sufficient evidence to show B was medically unfit to attend school.
32. The EWO wrote to Ms X and Mr Y. The EWO said:

• the Council’s EWS had received a referral from School D because attempts by the school to improve attendance had been unsuccessful. She said B’s school attendance level was low (58%) and the threshold for unauthorised attendances had been reached for an EWS referral.
• under Section 7 Education Act 1996, parents have a legal duty to secure a full-time education for their children of compulsory school age whether at school or otherwise.
• the EWS would investigate the reasons why B’s attendance was low before deciding whether to take no further action or take enforcement action against Ms Y and Mr X. The EWO said she would monitor B’s attendance over an eight-week period after which a stage one meeting would be held under its enforcement policy. It is my understanding the expectation was for B to attend School D on a modified part-time basis.

33. Ms X and Mr Y sent medical evidence to the EWO to show that B was unable to attend school due to illness. They included a report from a specialist physician stating he had diagnosed B with ME/CFS as well as a letter from a separate specialist who was treating B for Chronic UTI.
34. At the end of June, the EWO wrote to Ms X and Mr Y. The EWO confirmed:

• when making decisions about absences, the EWS, like School D, did not accept privately sourced reports to support student illness or absence. The EWS, therefore, would not accept the medical evidence from Ms X and Mr Y. Rather, the EWS accepted medical evidence from NHS GPs or consultants.
• B had returned to school on a modified timetable, but should be attending school daily. The EWO would meet with Ms X, Mr Y, B, and NHS health practitioners involved in B’s care the following week. During this meeting, if it was not agreed B was able to attend School D more regularly, a referral to its a Pupil Referral Unit, College P, would be looked into.

35. In July, the EWO met with Ms X, Mr Y and B’s NHS GP and paediatrician. B’s private physicians were not asked to attend. The meeting notes show:

• B’s GP said the types of condition B had been privately diagnosed with were very rare. B’s paediatrician said she did not support the private diagnosis of ME and explained her reasons for this.
• Ms X and Mr Y agreed to try two lessons per day for B three days a week.
• The representative from School D said the School could not support such a low level of attendance and could not meet B’s needs. The representative said College P should be considered.
• The EWS team leader expressed concern B’s case had not been referred to social care. The EWO noted she would consider this.

36. At the beginning of September, the EWO wrote to Ms X and Mr Y. She said, after a period of close monitoring, B’s attendance had improved. She said the next steps were continued monitoring.
37. In early September, B returned to school for two weeks.
38. The school made a referral to the Council’s social services team.
39. Ms X and Mr Y requested an Education, Health and Care (EHC) needs assessment by the Council.
40. In October, B stopped attending School D as her health had deteriorated. School D made a referral to the Council’s Inclusion Support team. School D asked the Council to refer B to College P. Ms X and Mr Y did not wish for this referral to take place. This meant it could not be progressed as parental consent was needed.
41. Ms X and Mr Y enrolled B in an online school, referred to here as Online School.
42. In November, the EWS met with Ms X and Mr Y to begin the referral process to its Inclusion Support services to support B’s medical needs.
43. At the end of November, Ms X and Mr Y complained to the Council.
44. In December, the Council’s Targeted Inclusion Services Manager emailed Ms X and Mr Y to discuss “how his service supports children with medical needs that prevent them from attending mainstream schools”.
45. The Council sent Ms X and Mr Y its stage one complaint response. It decided not to uphold Ms X and Mr Y’s complaint.
46. At the beginning of January 2020, the Council sent Ms X and Mr Y its refusal to issue an EHC Plan. Ms X and Mr Y appealed this decision to the SEND Tribunal.
47. In June, a Council Officer in its Inclusion Support services asked Ms X and Mr Y to complete the referral form, with B’s views. This was the referral School D originally sent in October 2019. The Officer asked them to send the medical evidence that stated B was not medically fit to attend her mainstream school. He said this would then be considered by the Inclusion Support Panel and he would explain the types of support the Council could offer.
48. At the end of July, the Council’s Inclusion Support Panel sent Ms X and Mr Y its decision about their referral. It decided that, due to B’s health, the Council owed her the duty to make arrangements for suitable full-time or part-time education otherwise than at school by reason of illness.
49. In August, the EWS wrote to Ms X and Mr Y to say it had closed B’s case. This was because the EWS were now satisfied B was medically unfit to attend school.
50. In September, the Council sent Ms X and Mr Y its final complaint response. The Council upheld their complaint. It said its Inclusion Service subsequently accepted the medical evidence provided by Ms X and Mr Y.
51. At the end of September, the SEND Tribunal issued its decision. It ordered the Council to issue B with an EHC Plan.
52. In October, Ms X and Mr Y requested a final review of their complaint. The Council refused their request because it had already fully considered and responded to their complaint.
53. At the beginning of December, the Council issued B’s final EHC Plan. Ms X and Mr Y later appealed the content and placement named in the Plan.
54. In June 2021, Ms Y and Mr X complained to the Ombudsman.

Analysis – was there fault by the Council causing injustice?

Council decisions on alternative provision

55. In the Council’s stage two complaint response, it accepted, during the summer term 2019, the EWO incorrectly refused to accept medical evidence provided by Ms X and Mr Y because it was privately funded by them (instead of through the NHS). This is fault, which the Council has accepted (part a of the complaint). This caused Ms X and Mr Y distress and uncertainty. They went to significant time and trouble pursuing this matter with the Council.
56. In its stage two, the Council said that, if the fault had not occurred and the EWO had accepted the private medical evidence, the Council would not have considered taking enforcement action against Ms X and Mr Y. I, therefore, uphold part c of the complaint.
57. However, when deciding this, I find the Council has failed to consider what action it should have taken instead and then assess any injustice to B stemming from this not taking place. This is fault. I, therefore, uphold Ms X and Mr Y’s complaint that the Council failed to fully respond to their complaint (part f of their complaint).
58. In my view, the Council has implicitly accepted that it should have accepted its duty to provide alternative provision under section 19 had been triggered when the private medical evidence was provided in June 2019. This is based on the following:

• under the Education Act 1996, councils must identify children not receiving an education. If the council has reason to suspect a child is not receiving a suitable education, it should consider whether it needs to take certain action based on the powers contained in the Act. This includes serving a notice on parents requiring them to satisfy the council that their child is receiving a suitable education and issuing a School Attendance Order (SAO) where parents fail to satisfy this.
• Alternatively, section 19 of the Act states councils should consider whether they instead need to provide suitable educational provision if they consider the child’s absence is because of illness, exclusion or otherwise. In short, the Council was under a duty to choose, based on all the evidence, whether to enforce attendance or provide the B with suitable alternative education. It has accepted enforcing attendance should not have taken place, meaning section 19 was triggered;
• at this point, the Council was aware that B had been absent from school for over 15 days and this was likely because of the reasons provided in the private medical evidence;
• Ms X and Mr Y refused the referral to College P in November 2019 and told the Council they had arranged some online tuition for B with Online School. However, the Council records show it did not consider this to be elective home education and B should remain on roll at School D; and,
• If the EWS had accepted the reports in June 2019, the EWO would have consulted B’s specialist physician in ME/CFS rather than deciding against seeking further advice and information from him. In February 2020, the EWS received advice from the Council’s legal team. This stated, based on the two private medical reports from June 2019, these showed B’s absences were due to sickness. This provided Ms X and Mr Y with a defence to any prosecution. This meant the Council must provide B with a suitable education, in line with section 19. This was confirmed by the Council’s Inclusion Support Panel at the end of July 2020. The delay in the EWO obtaining this legal advice, which could have been obtained in June 2019, is fault. This meant B missed out on receiving alternative provision during this time (part d of the complaint).

59. Where fault has resulted in a loss of educational provision, we normally recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure is based on the circumstances of each case, to reflect the particular impact on that child. In this case, I have taken into consideration the fact B was at a key stage of her education, given it was the year before moving into Year 9 when she would be sitting Key Stage Three exams. I have also taken into consideration that the Council’s legal team said, in February 2020, that the arrangement for B’s alternative provision should be reviewed every six weeks and that:

The Local Authority accepts the expert opinion from the two Consultant Physicians that because of [B’s] condition … there should be a gradual process of rehabilitation. The school is advised that [B] should initially attend school 1hr a week. As guided by the statutory guidance for Local Authorities, this would address the social and emotional needs to enable her feel fully … part of the school community and to stay in contact with her class mates. The education arranged by the Local authority on part-time basis as the authority consider must be … in [B’s] best interest [Section 19 (3A)(b) of the Education Act 1996.]

60. I consider the payment for the period from June 2019 to end of July 2020 should be at the higher end of the scale. This is because the Council did not make any educational provision at all for B during this time. When monitoring and setting expectations around B’s attendance in June to September 2019, the EWO made decisions without considering the advice from the private medical evidence, as detailed in the legal advice above.
61. At the end of July 2020, the Council’s Inclusion Support Panel met. The Panel confirmed in writing for the first time to Ms X and Mr Y that the Council had a duty to make suitable alternative provision for B. The Panel said: “As with all medical needs cases the [Council] brokers support through [College P] to provide suitable education with the long term goal of a gradual reintegration into the mainstream”.
62. I asked the Council to provide the minutes or record of the Panel’s meeting to assess how it had made this decision that College P was suitable for B. The Council said it could not locate the record of the meeting or follow up discussions. The Ombudsman expects councils to maintain good record-keeping, particularly of key decisions such as these.
63. Based on the Council’s response to my questions on this and the above Panel decision, it is my understanding that support for children unable to attend school due to illness is contracted out to College P and it is the only alternative provision considered for such children.
64. In B’s case, I have seen no evidence of how the Council decided this alternative provision was suitable to B’s age, ability and aptitude. It is not clear whether the Council expected B to attend on a full or part-time basis. It is also not clear how it had considered the above advice that B should initially attend school one hour a week and on a part-time basis, which would be in B’s best interest. This is fault.
65. Rather, from this point onwards, the Council focused on Ms X and Mr Y’s refusal to consent to B’s attendance at College P, and the Council’s position that Online School was not suitable provision for B.
66. In my view, the Council adopted an inflexible policy and overly restrictive view of B’s individual circumstances. I have seen no evidence the Council assessed whether it could put in place interim alternative provision while the Council made efforts to resolve these points of dispute. As early as November 2019, the Inclusion Support service suggested it had used other home learning companies, which were both DfE and Ofsted regulated, but I have seen no evidence of the Council exploring such options.
67. By the time the Council issued B’s first EHC Plan in early December 2020, B was still going without suitable provision arranged by the Council. This is fault. This meant B missed out on alternative provision from September to end of November.

Actions of the Education Welfare Officer

68. Ms X and Mr Y complain the EWO’s behaviour meant they felt “pressured and intimidated” by her efforts to improve B’s attendance (part b of the complaint).
69. In its stage two complaint response, the Council said it accepted Ms X and Mr Y felt the EWS had been placing pressure on them by, for example, in October 2019, saying that matters were to progress to a stage one meeting under its Prosecution Policy. This was because B’s attendance had fallen again. The Council found this to be “an error of judgment” by the EWS. The Council said that, if the EWS had correctly accepted the medical evidence provided from the point it was sent, then the possibility of a stage one meeting would not have arisen. It is my understanding the Council accepted fault in relation to part b of the complaint.
70. Having considered the Council’s Prosecution Policy (2018), I find this likely contributed to the fault in the EWO’s decision-making. The policy does not provide a sufficiently clear explanation of the Council’s duty to decide promptly either to enforce attendance or provide the child with suitable alternative education, particularly when a case is considered “complex” under the policy. By following the Council’s Prosecution Policy, the EWO decided B’s case should be considered “complex”. The Council has told me this meant B’s case would not escalate to legal enforcement action while specialist support was identified. However, B’s case retained this status for a year and it did not lead to a prompt decision to put in place alternative provision either. This is fault. I find this caused Ms X and Mr Y undue distress and uncertainty about whether they would face enforcement action.
71. The Council apologised to Ms X and Mr Y for the fault causing injustice and provided a financial remedy in acknowledgement of the distress caused. I find the Council has provided a suitable remedy here. However, I have recommended a service improvement to address the fault associated with the Council’s Prosecution Policy.

Complaints handling

72. Ms X and Mr Y complain the Council delayed in responding to their complaint (part e of the complaint).
73. In its stage two complaint response, the Council accepted it was at fault. It apologised to Ms X and Mr Y and provided a financial remedy for the time and trouble put to. I find the Council has suitably remedied this fault causing injustice.

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Agreed action

74. As part of its final complaint response, the Council:

• apologised to Ms X and Mr Y for the fault accepted; and
• offered Ms X and Mr Y a payment of £500 to remedy the “inaccurate information provided to [them] by the EWS concerning the acceptance of privately funded medical diagnoses” and £300 for the time and trouble they were put to, including delays in responding to the complaint. These payments are in line with the Ombudsman’s published guidance on remedies. The payment of £500 is higher than our usual recommendation (of between £100 and £300), which appropriately acknowledges the significant distress and stress caused by the fault identified. I consider these payments sufficiently remedy the distress, time and trouble Ms X and Mr Y were put to.

75. However, I do not consider this action fully remedies the injustice caused, particularly for B. Within four weeks of my final decision, the Council has, therefore, agreed to:
1. apologise in writing to B;
2. apologise in writing to Ms X and Mr Y for the fault causing injustice regarding parts c, d and f of the complaint; and,
3. make a payment to Ms X and Mr Y of £500 for each school month the Council did not make any alternative provision for B. This covers the period of June to end of July 2019 (two school months); September 2019 to end of July 2020 (ten school months); and September 2020 to end of November 2020 (three school months). This makes a total of: £7,500. This payment should be used for the benefit of B’s education. This recommendation is in line with the Ombudsman’s published guidance on remedies.
76. As part of its final complaint response, the Council said it had made the following service improvements:

• reminded all EWS officers that medical evidence supplied by General Medical Council registered doctors should be given equal weight regardless of whether the evidence is obtained within a private or NHS context; and
• the Head of Service reviewed this complaint at a team meeting.

77. However, within three months of my final decision, the Council has also agreed to make the following service improvements:
1. review its guidance to staff, including its Prosecution Policy, to include clear advice to staff about the need to promptly decide whether it has a duty to secure alternative provision (the section 19 duty) or consider taking enforcement action (pursuant to its section 426A duty) under the Education Act 1996. This covers situations when it comes to the Council’s attention that a child may not be receiving suitable education. The Council should consider including the expectations set out in the statutory guidance and the Ombudsman’s focus report “Out of sight…. out of mind?” (see above); and
2. provide training to relevant staff on the above changes to its guidance.
78. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

79. I have completed my investigation.
80. I have decided to uphold parts a, c, d and f of Ms X and Mr Y’s complaint. This is because there was fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which the Council has agreed to.
81. I have decided to uphold parts b and e of Ms X and Mr Y’s complaint. This is because the Council has accepted there was fault causing Ms X and Mr Y injustice. The Council has provided suitable remedies to address this.

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Parts of the complaint that I did not investigate

82. I have not investigated the actions of School D, including its referrals to social services, and any actions of the Council that are inseparable from this. The Ombudsman is not permitted to look at the internal management of schools.
83. The courts have said if someone has lodged an appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHC Plan, we cannot seek a remedy for lack of education if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman) [2014] EWCA Civ 1407).
84. This means I cannot investigate matters linked to the SEND Tribunal appeal from the date the appeal right arises, which is the date the final Plan was issued in December 2020, until the appeal was completed at the end of November 2021. I can, however, investigate matters before December 2020.

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Investigator's decision on behalf of the Ombudsman