Summary: Mrs X complained the Council failed to provide alternative education for her son, Z, for almost a year when he was unable to attend mainstream school due to illness. She said this had a negative impact on her son and his GCSE results. The Council was at fault when it failed to secure tuition for Z for three months after it had received information that he was unable to attend school. The Council should make a payment of £800 to Mrs X to recognise the injustice Z suffered when he did not receive an education for three months.

The complaint

1. Mrs X complained the Council:
• failed to arrange suitable alternative education for her son, Z, when he fell ill in 2015;
• offered a tutor for Z who was not able to accommodate his needs;
• failed to locate an alternative tutor for Z despite telling her it would; and
• incorrectly withdrew its offer of tuition because it believed Z was no longer receiving medical treatment.
2. Mrs X said the Council’s actions caused her and Z stress, forced her to pay a significant sum for private tuition and had a negative impact on Z’s GCSE results.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. In this case I have decided to exercise my discretion and look at events which occurred more than 12 months ago because Mrs X could not reasonably have brought the complaint to us earlier. This is because the Council did not complete its complaints process until February 2019.
5. 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)
6. 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)
7. 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

8. I have spoken with Mrs X and discussed her view of the complaint.
9. I made enquiries of the Council and considered the information it provided. This included email and letter correspondence between Mrs X and the Council.
10. I have considered the Education Act 1996 and the statutory guidance for local authorities, “Ensuring a good education for children who cannot attend school because of health needs.”
11. I wrote to Mrs X and the Council and considered their comments before I made a final decision.

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What I found

12. Section 19 of the Education Act 1996 says that if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, the local authority must make arrangements to provide “suitable education” either at school or elsewhere - at home, for example. The education to be arranged by the local authority should be on a full-time basis, unless, in the interests of the child, part-time education is considered to be more suitable.
    This would be for reasons relating to the child’s physical or mental health.
13. Full-time is not defined in law but should equate to what a pupil would receive in school. If they receive one to one tutoring for example, the hours of face to face provision could be fewer as the provision is more concentrated
14. Local authorities need to ensure children with health problems are not without education for more than 15 working days. So, if a child cannot attend school because of a health problem, after 15 days the council must intervene and provide suitable education for a minimum of five hours a week.
15. “Ensuring a good education for children who cannot attend school because of health needs,” states that where full-time education is not possible for a child because of poor mental or physical health, local authorities have a duty to provide part-time education on a basis that is in the child’s best interests. Full and part-time education should still aim to achieve good academic attainment particularly in English, Maths and Science.
16. The teaching must be of a similar quality to that which the child would receive in school, based on a broad and balanced curriculum. Where a local authority contracts out the service, it remains accountable for the quality of education. Local authorities must also regularly review what is being offered and adjust the number of teaching hours if necessary.

What happened

17. In September 2015, Mrs X’s son, Z, became seriously unwell and could not attend school. The school notified the Council’s School Inclusion Team about this in February 2016.
18. Mrs X says she called the Council in early 2016 to make it aware of Z’s condition. She also emailed the Council in March 2016 to request assistance finding tutors for Z, as he was preparing to take his GCSEs when he became ill.
19. Z’s consultant nurse confirmed he was unable to manage more than 30 minutes study, twice a day.
20. The Council visited Mrs X and Z on 11 May 2016 to discuss Z’s educational needs. The Council and Mrs X discussed a potential tutor for Z - Ms D. Ms D had four years’ experience supporting and teaching young people with medical needs studying for their GCSEs. The Council’s notes from this meeting record Mrs X agreed to the tutor on 12 May 2016.
21. The Council did not confirm it had secured Ms D until 26 May 2016, by which time Mrs X had contacted the Council to query the length of time it was taking to source a tutor.
22. Following an introductory meeting that took place between Mrs X, the Council,
    Z and Ms D in June 2016, Mrs X decided Ms D was not suitable to tutor Z because Ms D had advised she could only teach Z English Language and was unavailable over the summer holidays. The Council made enquiries regarding an alternative tutor for Z following this but did not get in touch with Mrs X or inform her it would not be able to assist her further.
23. Mrs X then contacted several agencies to find tutors she considered suitable for Z. Z began receiving tuition from July 2016 onwards. Mrs X says she found the tutors were employed by same agencies used by the Council and so she was unhappy the Council did not put the tutoring in place.
24. Mrs X raised a complaint because she believed the Council had breached its statutory obligation to provide suitable tuition for Z within 15 days of discovering he was unable to attend school. She also wanted the Council to cover the costs she had incurred when she hired tutors for Z.
25. The Council did not uphold Mrs X’s complaint, saying it had offered Mrs X a suitable tutor for Z within the required timeframe and was not obligated to find an alternative tutor. Mrs X did not agree and escalated the complaint.
26. Soon after, the Council contacted Z’s school and received information which it interpreted to mean that Z was no longer receiving medical treatment. Without contacting Mrs X, the Council closed the complaint after deciding Z no longer met the requirements to receive tuition on the basis of ill health.
27. An Independent Investigating Officer reviewed the complaint at Stage 2 and did not uphold Mrs X’s complaint that the Council failed to act appropriately in finding a tutor for Z. The Investigating Officer found that the Council should have told Mrs X when it decided Z no longer met the criteria to receive hospital education. After the complaint was escalated to Stage 3, the Council again did not uphold most of Mrs X’s complaint but agreed it should have notified her when it withdrew its offer to assist Z with his education. The Council offered Mrs X a £400 goodwill award to acknowledge the shortfall she experienced.
28. Mrs X remained unhappy with the Council and opted to refer her complaint to the Ombudsman.

Analysis

29. The Education Act 1996 stipulates that if a child cannot attend school for reasons of illness, exclusion from school or otherwise, it must procure suitable education for the child.
30. Once the Council became aware Z was too ill to attend school, it had a duty to arrange suitable education for him.
31. The Council became aware of Z’s absence from school on 9 February 2016 but took no action to provide him with a suitable education until 9 May 2016.
    This was a delay of around 12 weeks, and this is fault.
32. As a result of this delay, Z did not receive a suitable education for longer than was necessary. The Council should make a financial payment to remedy this injustice to Z.
33. The Council sourced a tutor on 9 May which it considered would be suitable to help Z complete his GCSEs. Mrs X was unhappy with the tutor and decided to employ her own tutors for each of the subjects Z was taking at GCSE. This was a decision Mrs X was entitled to make. However, the Council had no duty to fund the tutors Mrs X selected. There was no fault in the Council’s actions.
34. When Mrs X refused the Council’s tuition offer, the Council indicated it would try to find an alternative tutor. There is no evidence the Council followed up on this offer. This is fault.
35. After the Council closed Mrs X’s complaint, it failed to notify Mrs X it had decided Z no longer met the criteria for assistance with tuition. This meant she lost the opportunity to object to the Council’s decision or to provide information relevant to the case. The Council has already admitted it was at fault when it did this and has apologised and offered Mrs X to remedy any injustice this caused.
36. During my investigation the Council has also confirmed it has reminded its staff to be sure a pupil no longer has a medical need before closing a case. These are satisfactory responses on the Council’s part.
37. Furthermore, Mrs X and Z did not suffer a significant personal injustice as Mrs X had already opted to source tuition for Z.

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Agreed actions

38. Within one month of the date of my final decision the Council has agreed to pay Mrs X £800 to remedy the injustice Z experienced when he missed out on education between March and June 2016. The money should be used as Mrs X feels best for Z’s educational benefit.
39. Within two months of the date of my final decision the Council should confirm it has put procedures in place to inform parents when it has decided a child no longer meets the criteria for alternative education.

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Final decision

40. There was fault in the Council’s actions which caused Z an injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman