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Council held in breach of duty for failing to provide alternative education for a pupil with anxiety

A Local Government Ombudsman (LGO) has ruled in favour of a mother who sought action against a local authority for its refusal to provide education to her 10-year-old daughter (Y), who refused to attend school due to high levels of anxiety. Y was eventually advised that she had sensory processing difficulties and was recommended for diagnostic tests.

Background

At the start of 2018, Y became increasingly anxious about going to school (School A) because of bullying. School A offered extra support to manage Y's anxieties, but Y was unable to settle once in school. On 28 March 2018, School A asked Y's mother to collect her from school because she was so distressed. Y's mother sought medical assistance and School A referred Y to the Medical Needs Teaching Service for 25 hours a week of education.

The referral was passed to the Local Cluster, which aims to link schools and early year providers with social, and health support for children and their families. However, the first early help meeting was not held for a further 3 months, on 27 June 2018, by which time Y had been out of education for 10 weeks. The Cluster rejected the referral on the basis that Y was not receiving therapeutic support and there was no plan in place to get Y back into mainstream school.

School A conducted home visits; however, Y became increasingly aggressive. This lead to an overnight stay in hospital where an assessment was conducted and an urgent referral to CAMHS was made. It was agreed by School A and Y's mother that a new referral would be made to the Medical Needs Teaching Service in September. During this time, Y was to conduct work with CAMHS. On 27 July 2018, Y went to CAMHS but would not take part in the session.

In September 2018, the second referral to the Medical Needs Teaching Service was rejected by the Cluster due to a lack of medical evidence. School A also began to record Y's absence as unauthorised because it had not received any medical evidence to say Y was unfit to attend.

Y's mother brought a complaint against the local authority for School A's failure to provide Y with suitable education in accordance with section 19 of the Education Act 1996. Under section 19, councils are responsible for arranging suitable alternative education for pupils who because of illness or other reasons, would not receive suitable education without such arrangements being made. Suitable alternative education should be arranged as soon as it becomes clear that the child will be away from school for 15 days or more. Y stopped attending school in April 2018. The Council did not provide Y with alternative provision until 2 February 2019 meaning that Y was without any education for nine months.

The local authority denied any section 19 duty was owed on a number of grounds, including the argument that the section 19 duty was conditional on receiving medical evidence from a medical consultant or CAMHS practitioner.

Outcome

The LGO found the local authority had breached its statutory duty, such duty being unconditional and therefore not dependent on medical evidence. Statutory guidance also states that local authorities have a duty to consider other types of evidence if medical evidence is not quickly available, to prevent delay in arranging appropriate alternative education for the child.

Although School A was sending schoolwork home to Y, this in itself was not deemed to amount to suitable alternative education. Suitable alternative education should include teaching by a teacher, whether through online, group or one-to-one provision. Therefore, without an assessment of Y's educational needs, the Council could not determine whether the education being provided by School A was suitable. The Council had multiple opportunities to identify the education in place was not meeting Y's needs; however, it failed to do so.

The Council stated it only became aware of Y's lack of education in 2018 as the Cluster was dealing with Y's case. This was not accepted by the LGO as the Cluster provides targeted children's services on behalf of the Council; once the Cluster was aware Y was not going to school, the Council should also have known. The LGO therefore made a finding against the local authority for its failure to provide Y with suitable alternative education over a period of 9 months.

Recommendations

In light of the breach, the LGO made a number of recommendations including the following:

• Pay £1400 to Y's mother to remedy the Council's failure to assess Y's needs and provide education between May 2018- October 2019, which once offered, Y engaged in.
• Pay £200 to Y's mother for the time and trouble taken in bringing the complaint.
• To review the way the Council oversees the way it discharges its responsibilities under S19 Education Act 1996.
• To provide training and guidance to Council staff, school and services commissioned on the provision of suitable alternative education.

Forbes comment:

This case highlights the importance of communication within Local Authorities and the need for individual teams and departments to fully understand the statutory duties that the Local Authority hold. The Local Cluster in this case was providing targeted services, for children outside the standard educational system, and were therefore deemed to be part of the Council's Education department. The fact that the department were not made aware by the Local Cluster that services were not being put in place did not excuse them from their duty.

The fragmentation of education and social services provision over the years has led to silo working and a lack of understanding of the bigger picture and overriding responsibilities. It is therefore essential that if teams are created to hive off certain functions, the importance of communication and understanding of those duties is made clear.

The case also demonstrates the complexity of dealing with child and adolescent mental health issues which are on the rise.

For more information contact Kella Bowers in our Insurance department via email or phone on 01254 222437. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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