The Ombudsman's final decision
Summary: Mrs X complained the Council did not provide her child, Y, with appropriate educational provision in line with their Education, Health and Care Plan, when they were unable to attend school due to medical reasons. The Council was not at fault.
The complaint
Mrs X complained the Council did not provide her child, Y, with appropriate educational provision in line with their Education, Health and Care Plan, when they were unable to attend school due to medical reasons. She said the Council did not accept the medical evidence she presented it with. Mrs X said as a result, Y’s education was disrupted for several months. Mrs X also said it caused her and her family significant distress as they had to arrange and pay for tutoring and activities for Y during this time. She wants the Council to apologise to her and provide her with a financial remedy.
The Ombudsman’s role and powers
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) 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) 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)
How I considered this complaint
I spoke with Mrs X and considered the information she provided.
I considered the information the Council provided.
Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.
What I found
Alternative provision law and guidance 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.
Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
Children out of school because of medical or health reasons 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”.
Relevant case law 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]) Education, Health and Care Plans Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
What happened Mrs X’s child, Y, has special educational needs and an Education, Health and Care (EHC) Plan. Y attended a specialist school for children with learning difficulties. Y’s EHC Plan stated Y was to attend the School full-time and receive support from the staff at the School with their education.
In May 2021, Y stopped attending the School. Mrs X said this was because Y was suffering with anxiety at the School. The Council was aware Y had stopped attending the School.
Later in May 2021, Mrs X contacted a General Practitioner (GP) to discuss the anxiety Y was experiencing at the School. The GP provided Mrs X with a note which said they were not fit to attend school for the next few weeks due to anxiety. Mrs X presented the note to the Council and asked it to arrange alternative provision for Y.
The Council informed Mrs X the fit note from the GP was not sufficient evidence to support that Y was unable to attend school due to mental health problems. The Council said the GP had never met with Y. The Council said it required evidence from a consultant from the Children and Adolescent Mental Health Service (CAMHS). In addition, the Council said the School had not reported the levels of anxiety Mrs X said Y was suffering with.
In mid-June 2021, Mrs X arranged a virtual appointment with a paediatrician. The paediatrician spoke with Mrs X but did not see Y. Following this, the paediatrician referred Y to the CAMHS Team.
Shortly after, the Council contacted Mrs X in relation to arranging home tuition for Y. The Council said it commissioned its outreach provision from a different school (School B). It informed Mrs X that Y’s current school had applied for home tuition with School B however School B declined the application as it required evidence from a consultant.
The Council continued and said it had liaised with its Designated Medical Officer to see if there was sufficient evidence which concluded Y required alternative provision. The Council said it required evidence from medical professionals who had direct involvement with Y. It said there was no evidence which supported Y required alternative provision.
As there was no evidence, the Council with the School offered Mrs X support with the Council’s Early Help Team. They said the Team could help identify the cause of the anxiety, put in place a plan which supported Y and possibly obtain the evidence required for Y to receive home tuition. The Council required Mrs X to give her consent for the referral. Mrs X said she consented to the referral however, she said the Team was unable to provide immediate support for Y. It signposted Mrs X to other relevant services.
In addition, the Council advised Mrs X to work with the Council, the School and other relevant agencies to help Y reintegrate back into School.
In July 2021, Mrs X complained to the Council. She said the Council had failed in its duty to provide Y with a suitable education. As a result, Y had not received an education for the last two months. She said the School had not sent work for Y to complete at home. Mrs X wanted the Council to consider the evidence from the GP and put in place alternative provision as a matter of urgency.
The Council responded to Mrs X and reiterated it needed appropriate medical evidence so it could put in place alternative provision for Y. The Council said it believed the School was a suitable place to meet Y’s needs. It said the School was prepared to discuss with Mrs X how it could support Y with returning to the School. It again advised Mrs X to work with the School to discuss the arrangements with Y returning to the School. The Council said it would arrange for the School to send Y work to complete at home in the meantime. Furthermore, the Council was aware Y was awaiting an assessment with the CAMHS Team. It contacted the Team to try and get the assessment brought forward.
In September 2021, the CAMHS Team carried out an assessment with Y. The assessment concluded there was no medical reason which supported Y’s absence from the School. However, Y did not return to the School.
Mrs X remained unhappy and complained to us. Since her complaint, Y started at a new school in March 2022.
Findings
As outlined in paragraph 11, it is for the Council to decide what weight it gives to medical evidence when establishing whether alternative provision is required for a child out of school on medical grounds. We expect the Council to consider all relevant factors in making its decision.
The Council considered the fit note from the GP but decided it was insufficient to support Y’s absence from the School. It said this was because the GP had not met with Y. The Council also considered information from the School which had no concerns with Y’s mental health needs. The Council considered the relevant evidence and there was no fault in how it reached its decision not to provide Y with alternative provision.
The Council said it required medical evidence from the CAMHS Team or from another medical professional who had had direct involvement with Y. It also liaised with its Designated Medical Officer to consider whether it had sufficient evidence. This was in line with the statutory guidance. The Council was not at fault.
During Y’s absence from the School, the Council made efforts to support Y with their education. It arranged for the School to provide Y with schoolwork to do at home. As it had no evidence which suggested Y was unable to attend the School due to medical reasons, it considered the School was able to provide Y with suitable education and the provision in line with their EHC Plan. It therefore advised Mrs Y to work with the Council, the School and other agencies to help Y return to the School. The Council advised Mrs X to obtain further support from the Council’s Early Help Team. It also contacted the CAMHS Team in an attempt to bring forward Y’s scheduled assessment so it could be established sooner whether Y required alternative provision. There was no fault by the Council.
Final decision
I have now completed my investigation. There was no fault by the Council.
Investigator's decision on behalf of the Ombudsman