The Ombudsman's final decision:
Summary: fault by the Council meant B did not receive education for six weeks following his permanent exclusion from school.
- Ms M complains about her son, B’s education following his permanent exclusion from school. In particular, Ms M complains:
- B was without education for six weeks;
- the tuition the Council arranged was not full-time; and
- B has still not returned to full-time education.
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)
- 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)
How I considered this complaint
- I have considered:
- information provided by Ms M;
- information provided by the Council;
- the Education Act 1996; and
- Out of school… out of mind? How councils can do more to give children out of school a good education published by the Ombudsman in 2011.
What I found
- Ms M’s son, B, was permanently excluded from school on 25 February 2018.
- The Council arranged five hours per week of one-to-one home tuition, beginning in May 2018.
- B was allocated a place at a local alternative provision academy in July 2018.
- The School requested an assessment of B’s Education, Health and Care (EHC) needs. The Council undertook the assessment and issued an Education, Health and Care Plan on 8 February 2019. An EHC Plan describes a young person’s special educational needs and the provision required to meet them.
- B still does not attend school full-time.
Ms M’s complaint to the Council
- Ms M complained to the Council about the education B had missed. The Council acknowledged there were delays arranging alternative education for B and offered 30 hours or tuition or £300 for additional provision and £100 for Ms M’s time and trouble. Ms M does not consider this enough tuition to make up for the education B has missed.
Education for children who do not attend school
- 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))
- Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6)) The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
- 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)
- The Local Government Ombudsman has issued 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 Ombudsman 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;
- choose, based on all the evidence, whether to enforce attendance or provide the child with suitable alternative education;
- 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.
Complaint a) B was without education for six weeks
- The Council accepts there was a six week delay arranging alternative tuition following B’s permanent exclusion in February 2018.
- The Council apologised and offered 30 hours or tuition, or a budget of £300, to make up for the missed education. The Council also offered Ms M £100 for her time and trouble pursuing her complaint. The Council explained the changes it has made to avoid the same problem happening again.
- Ms M does not consider the Council’s offer satisfactory. She thinks the Council should offer 75-80 hours of tuition or an equivalent payment to help B catch up.
- I will consider the Council’s offer at the end of this statement.
Complaint b) the tuition the Council arranged was not full-time
- The Council offered five hours of one-to-one home tuition a week from May 2018. I understand this was the Council’s standard offer at the time.
- Government guidance recognises that one-to-one tuition is more ‘concentrated’ than classroom-based teaching and it may be appropriate to offer fewer hours of one-to-one tuition than a child would receive at school.
- However, councils should always consider the individual circumstances of each individual child. ‘Standard offers’ and blanket approaches should be avoided. A Council should be able to demonstrate how it has considered a child’s needs and planned the child’s education accordingly to ensure the child receives the maximum tuition he is capable of.
- In B’s case, the Council has not provided any evidence it assessed his needs or planned his education according to his needs when one-to-one tuition started in May 2018. This is fault.
- Without any assessments, I cannot say how much education B should have had. However, I note that when a full-time school place became available at the alternative provision academy, B was unable to attend full-time.
Complaint c) B has still not returned to full-time education
- When I made my enquiries, B had been on a part-time timetable at the alternative provision academy for the entire 2018 – 2019 school year. I asked the Council to explain why B did not attend school full-time, and what the Council was doing to secure his return to full-time education.
- The Council explained that B was originally taught with one other pupil by a teacher supported by a teaching assistant. This did not prove successful, so the school arranged one-to-one tuition instead. This was more successful. B is now taught with another student for the majority of the time. He now attends school for 18.5 hours per week. The Council says the school regularly reviews B’s attendance, and a full-time place is available for him.
- Although B does not attend school full-time, he nevertheless receives a considerable amount of one-to-one tuition from the teacher and teaching assistant. A full-time place is available for him. I am satisfied B’s part-time attendance is not the result of fault by the Council.
- B was without education for six weeks as a result of fault by the Council. The Council then arranged five hours per week of one-to-one tuition without assessing his needs. I have no way of knowing whether this was as much tuition as B could cope with at the time.
- The Council has offered 30 hours of tuition or a budget of £300 for B’s education, and a payment of £100 for Ms M’s time and trouble. Ms M does not think this is enough.
- The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Ms M and B, we may recommend the Council makes a symbolic payment to acknowledge missed education. A payment may be between £200 and £600 per month.
- The Council has offered £300. This is at the lowest end of the Ombudsman’s range for the six weeks B was without education. As a symbolic payment to reflect the education B would have had if the Council had not been at fault, I consider this an appropriate amount. B’s attendance once a full-time place was made available suggests he was not in a position to attend school full-time at the time. As a symbolic payment, the payment is not intended to reflect the cost of helping B to ‘catch up’ on the education he missed. This is the Council’s responsibility and will be addressed by the Council through B’s place at the alternative provision academy and his Education, Health and Care Plan.
- I have ended my investigation. There was fault by the Council which meant B was without education for six weeks following his permanent exclusion from school, but the Council has offered a suitable remedy.
Investigator's decision on behalf of the Ombudsman