Summary: Mrs X complained the Council failed to provide suitable education since July 2022. We found fault with the Council failing to provide suitable education for various time periods from July 2022 until November 2023. The Council agreed to apologise to Mrs X and pay her £1,400 for her child’s missed education. The Council also agreed to pay Mrs X £200 for the uncertainty about what educational provision should have been in place for 10 weeks from January 2023 to March 2023.

The complaint

1. Mrs X complained the Council failed to provide suitable education for her child despite promising to do so following completion of a previous complaint to the Ombudsman.
2. Mrs X says the Council’s plan was to provide a tutor to build a relationship with her child with the view to reintegrating her child into school. Mrs X says the tuition was inconsistently provided and not suitable for her child’s needs. Mrs X also complained the education on offer stopped for a long period of time.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. 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)
5. 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)
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 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 have and have not investigated

8. I have only investigated Mrs X’s complaint about the Council’s failure to provide education for her child from 12 July 2022 until 1 November 2023.
9. I have not investigated matters before 12 July 2022 as the Ombudsman has already completed an investigation into any issues before this date.
10. I have not investigated any issues after 1 November 2023 since Mrs X gained an appeal right to the Special Education Needs and Disability (SEND) Tribunal. Mrs X used her right to appeal to the SEND Tribunal in January 2024.
11. Since Mrs X has used her appeal rights to the SEND Tribunal, the Ombudsman cannot investigate Mrs X’s complaint about the same matter. By law, the Ombudsman cannot consider matters which have been subject to appeal, or where the decision and consequence of the outcome of the appeal are inextricably related to the same matter. This restriction starts from the point at which Mrs X gained her appeal right and ends at the conclusion of the appeal process.
12. Since Mrs X has appealed the contents of the EHC Plan, in Sections B, F and I, this includes both the educational provision and placement for her child. This means any education provided by the Council for Mrs X’s child since 1 November 2023 is outside the Ombudsman’s jurisdiction.
13. Mrs X has appealed the Council’s decision not to complete an EHC Needs Assessment and not to an issue an EHC Plan to the tribunal between 12 July 2022 and 1 November 2022. These appeals have not prevented the Ombudsman from investigating this complaint because the substantive issue is separable from the appeals.

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How I considered this complaint

14. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
15. Both Mrs X and the Council had opportunity to comment my draft decision before I made my final decision.

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What I found

Rules and regulations

16. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))
17. 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))
18. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
19. The education provided by a council must be full-time unless a 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)
20. 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 mind? How councils can do more to give children out of school a good education, published in 2016)
21. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
22. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
23. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

12 July 2022 to 5 September 2022

24. Mrs X’s child, who I shall refer to as Y, was out of education in early 2022. Mrs X brought her complaint to the Ombudsman who found the Council at fault for failing to provide alternative provision of education until 12 July 2022.
25. Our previous investigation found the Council put in place a tutor for Y on 12 July 2022. At that time, Mrs X said she was “happy with the tutor and felt that Y was engaging with her”. The Council put in place this tutor with the view to reintegrating Y into full-time education following a build-up of the relationship between the tutor and Y.
26. An email from the Council to the Mrs X on 12 July 2022 explained the tutoring arrangement of 5 hours per week was based on Y’s current circumstances. The Council said this was to help reintegrate Y into the classroom while allowing him access to education.
27. In July 2022, Y’s tutor completed a few introductory sessions with Y before the school summer break.

5 September 2022 to 5 January 2023

28. On 5 September 2022, Y’s tutor started to provide 5 hours of education each week spread across four sessions.
29. Y’s tutor often provided 5 hours of tutoring to Y each week from 5 September 2022 to 5 January 2023. However, there were occasions of missed sessions during this time.
30. On 5 January 2023, Y’s tutor reduced her working hours with Y to 4 hours each week. The Council was not told about this reduced provision until 30 January 2023.

5 January 2023 to 3 March 2023

31. Y received at most 4 hours of tutoring each week from 5 January 2023 until 3 March 2023.
32. On 3 March 2023, the Council introduced an extra tutor for Y to provide the missing 1-hour each week of tuition.

3 March 2023 to 17 April 2023

33. On 7 March 2023, Y was admitted to hospital. While in hospital an incident occurred which resulted in a safeguarding referral and Child In Need Plan.
34. On 13 March 2023, the Council’s tuition service decided to place Y’s tuition on hold, starting from 17 March 2023, because of safety concerns for staff. The Council said it would complete a risk assessment to decide when it could provide tuition for Y again.
35. The Council asked Y’s school to provide learning packs for Y while it considered the safeguarding matter. The Council considered putting in place online learning for Y but decided against this. This was because previous discussions with Y’s tutor detailed that Y struggled to engage with learning that was not provided face-to-face.
36. On 17 April 2023, the Council held a meeting with Mrs X to discuss a safety plan. The Council’s social worker agreed to write up a safety plan and consult with the relevant adults involved with Y’s care and education before finishing the plan.

17 April 2023 to 6 June 2023

37. The Council consulted with Y’s previous tutor to discuss availability to restart sessions. Y’s previous tutor advised they were now providing tuition to another child so could not provide tutoring for Y.
38. The Council held meetings on 3 and 5 May 2023 about the safety plan and provision of new tutors for Y.

6 June 2023 to 26 June 2023

39. On 6 June 2023, the Council reinstated Y’s home tuition. The Council put in place 8 hours of tuition each week in 2-hour sessions provided by two different tutors. The Council decided to provide 8 hours tuition to enable Y to catch up on missed provision,
40. Mrs X wrote to the Council on 26 June 2023 to advise she had sent one of Y’s tutors home and asked them not to return following an incident between the tutor and Y. Mrs X asked for the tutor sessions with this tutor to stop.
41. The Council responded to Mrs X on 28 June 2023 to advise it would look into the matter with the tutor. The Council said it would look to find a replacement tutor.

26 June 2023 to October 2023

42. The Council conceded the appeal to the tribunal on 2 August 2023 and agreed to issue an EHC Plan for Y.
43. On 8 August 2023, the Council issued a draft EHC Plan for Y.
44. Y continued to receive four hours of tutoring each week during this time period during the school terms.

Events since October 2023

45. The Council reinstated two tutors for Y at the start of October 2023 returning Y’s provision to 8 hours per week.
46. On 17 October 2023, the Council finalised Y’s EHC Plan. Within the Final EHC Plan the Council set out Y’s educational placement in Section I of the EHC Plan.
47. The Council sent this Final EHC Plan to Mrs X on 1 November 2023. The Council said it considered Y’s educational placement named in Section I was an appropriate setting for Y. The Council also outlined Mrs X’s appeal rights to the SEND tribunal.
48. Mrs X appealed Y’s EHC Plan to the Tribunal on 7 January 2024. Mrs X appealed Section B, Section F and Section I of the EHC Plan. The Council has since confirmed it is working with Mrs X to provide suitable education for Y.

Analysis

49. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
50. It was established in the Ombudsman’s previous investigation the Council’s Section 19 duty had already arisen in the events before this complaint. The Council was responsible for providing suitable education for Y from 12 July 2022.

12 July 2022 to 5 September 2022

51. The Council had limited time to put education in place before the end of the academic year on 22 July 2022. The Council used this time to arrange initial meetings between Y and Y’s tutor. This time was used to ensure Y was ready to receive education starting in September 2022 and to build a relationship between Y and his tutor.
52. I do not find fault with the Council for the actions it took to prepare Y for the alternative provision of education through his tutor from 12 July 2022 until 5 September 2022.

5 September 2022 to 5 January 2023

53. The Council has responsibility to ensure any alternative provision of education is suitable for a child’s needs. The Council must show consideration of a child’s individual needs and, in doing so, decide if a child would benefit from less than full-time education.
54. The Council has shown in its email correspondence with Mrs X on 12 July 2022 its rationale for providing Y with 5 hours of tutoring each week. The Council made this decision based on Y’s needs and with the view to reintegrating him into the classroom. Since the Council has shown it considered the relevant factors in deciding on 5 hours of tuition each week for Y, I cannot find fault with the Council’s decision.
55. From 5 September 2022 to 5 January 2023, the Council provided this tutoring, with only some drops tuition when Y’s tutor could not attend. Since the Council has considered the relevant factors and delivered this tutoring, I would not find fault with the Council.

5 January 2023 to 3 March 2023

56. A council must keep all cases of part-time education under review with a view to increasing it is a child’s capacity to learn increases. The Council has provided no evidence it kept Y’s amount of tutoring under review.
57. There is not guidance for councils about how it should keep part-time education under review. However, it would be sensible for the Council to review the success of part-time educational provision at least once per term to determine if provision could be increased for a child. For Y, the Council could have reviewed his tutoring at the start of January 2023. The Council failed to do this; this was fault.
58. Y’s tutor also decreased their hours to 4 hours each week on 5 January 2023. The Council had not made any decision that a reduction in tutoring hours was correct for Y. The Council delayed in reinstating the lost hour of provision from when it found out, on 30 January 2023, until 3 March 2023. This was fault.

3 March 2023 to 17 March 2023

59. The Council reinstated Y’s 5 hours of tutoring from 3 March 2023 until 17 March 2023. The Council acted correctly to rectify the loss of 1 hour’s provision each week.
60. While the Council reinstated this lost provision, there is no evidence the Council reviewed the suitability of Y’s provision. This continued the fault identified in paragraph 57.

17 March 2023 to 17 April 2023

61. Following the incident with Y during his time in hospital, it was suitable for the Council to complete a safeguarding investigation. The Council was entitled to stop provision of education if it had concerns about the wellbeing of the tutors. The Ombudsman would not find the Council at fault for this.
62. While the Council completed its safeguarding investigation, it considered what provision it could make for Y. In doing so, the Council gave thought to providing online learning for Y. The Council considered Y’s tutor’s previous comments that online learning would not be suitable for Y and decided against this. The Council has considered professional opinion when making this decision and I would not find fault.
63. The Council asked Y’s school to provide learning packs for Y while it completed its safeguarding investigation. While this provision of education is below what Y should have been receiving, the Council did not have an alternative and I do not find fault with the Council.

17 April 2023 to 6 June 2023

64. On 17 April 2023, the Council held a meeting with Mrs X about Y’s education. The Council agreed during this meeting it would write up a safety plan and find suitable tutors for Y to restart his education.
65. The Council decided on 17 April 2023 that it could restart tutoring for Y. Since the Council decided this on 17 April 2023, it should have started to provide education from the sixth day from this decision, according to its Section 19 duty. The Council should have put in place Y’s tutoring from 24 April 2023.
66. The Council was at fault for failing to provide education for Y from 24 April 2023 until 6 June 2023. While it may have been difficult for the Council to find tutors for Y, this delay of 5 weeks was still fault.

6 June 2023 to 26 June 2023

67. From 6 June 2023 to 26 June 2023, the Council put in place 8 hours of provision each week for Y.
68. The Council decided to put in place 8 hours of provision following a request from Mrs X for extra education for Y. The Council considered Y's needs and decided he could cope with 8 hours of education to allow for both education and engagement with the tutors. The Council has shown it has considered Y’s individual needs and changed the level of tuition he should receive in line with this. I do not find fault with the Council.
69. Mrs X has raised concerns about one of the tutors provided during this time period. The Council put in place two tutors with experience of working with children with special educational needs. The Council could not put in place Y’s previous tutor because this tutor had started to work with another child. The Council has acted appropriately to put in place suitable provision and I would not find the Council at fault for this.

26 June 2023 to October 2023

70. It was Mrs X who asked for a stop to of one of Y’s tutors on 26 June 2023. I cannot find fault with the Council for Mrs X seeking the stop to Y’s tutoring from this tutor.
71. The Council promised to find a replacement tutor on 28 June 2023. It would have been appropriate for the Council to find a replacement tutor from the sixth day of the Council’s promise to find a replacement. This meant the Council should have reinstated Y’s full provision of 8 hours each week from 6 July 2023.
72. The Council failed to put a new tutor in place until the start of October 2023. This meant Y went six weeks with only half his educational provision. This was fault.

October 2023 until 1 November 2023

73. The Council has reinstated Y’s full 8 hours of educational provision for this time period. Since the Council had recently considered the suitability of Y’s provision and put in place this full provision, I do not find fault with the Council.

Missed education overview

74. From 12 July 2022 until 1 November 2023, through the fault of the Council Y has lost:
• 20% (1 hour) of his educational provision for four weeks from 30 January 2023 until 3 March 2023.
• All his educational provision for five weeks from 24 April 2023 until 6 June 2023.
• 50% (4 hours) of his educational provision for six weeks from 6 July 2023 until October 2023.
75. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
76. Taking into consideration the amount of lost provision Y experienced over the time periods detailed above, I consider an award of £1,400 is suitable in the circumstances in line with the Ombudsman’s guidance on remedies.
77. Y has also experienced uncertainty over the amount of provision he should have received for 10 weeks from the start of January 2023 until 17 March 2023. The Ombudsman cannot decide what provision Y should have received during this time had the Council reviewed Y’s amount of provision. This is because we do not have the relevant evidence or professional judgement to decide if 5 hours was still suitable for Y, or if this should have been increased to 8 hours. However, we can provide an award for the uncertainty this failure to review has caused. I consider an award of £200 is reflective of this uncertainty.

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Agreed action

78. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mrs X for her child’s missed educational provision.
• Pay Mrs X £1,400 for her child’s missed educational provision. Mrs X may use this money to provide any catch-up educational provision for her child as she sees fit.
• Pay Mrs X £200 for the uncertainty caused about what Y’s educational provision should have been from January 2023 until 17 March 2023 due to the Council’s failure to review the provision.
79. The Council should provide us with evidence it has complied with the above actions.

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Final decision

80. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman