Summary: Mrs X complains that the Council failed to provide a suitable education for her daughter when she was unable to attend school due to ill health. She says the remedy offered is inadequate. She also states she was given inadequate information on the implications of home educating or the available alternatives. The Council is at fault and has caused injustice to Mrs X’s daughter. It has agreed an enhanced financial remedy and a service improvement.

The complaint

1. The complainant, who I refer to here as Mrs X, says the Council has offered an inadequate remedy for its fault in failing to provide a suitable education to her daughter. She says the impact of the loss of education on her daughter has been profound. She says she was not properly informed about the implications of choosing to educate her daughter at home, or about alternatives available to parents of a sick child.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke to Mrs X and considered information provided by Mrs X and the Council. I shared my draft decision with Mrs X and the Council and considered their comments before finalising my decision.
5. We have an information sharing agreement with the Office for Standards in Education, Children’s Services and Skills (OFSTED) and will share this decision with them.

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What I found

Education, Health and Care Plans (EHCPs)

6. An EHCP is a document which sets out the education, healthcare and social care needs of a child or young person for whom extra support is needed in school, beyond that which the school can provide. It also sets out the provision the Council will make to meet these needs.

Duty to arrange alternative education

7. Under Section 19 of the Education Act 1986, if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, the Council must arrange suitable alternative education.

What happened

8. Mrs X has a daughter, Y who is autistic and has special educational needs (SEN), requiring support now detailed in an EHCP. In December 2018 Y stopped attending her private school due to severe anxiety. Mrs X made several complaints about the Council’s failure to provide a suitable education during the child’s absence from school.
9. The Council’s Stage 2 investigation, completed in May 2021, upheld Mrs X’s complaints. It said the Council “should have explored some form of education for [Y] when it was clear her health needs meant she could not attend school”. It also said Mrs X had a responsibility to seek advice and guidance.
10. The Council accepted this. It paid Mrs X £6,223.37 to remedy the matter. Mrs X felt this was insufficient given Y had lost provision between Christmas of year 9 and end of year 11. She also felt the Council’s investigation had partially blamed her for what had happened. She told me she had not been properly informed about the implications of elective home education and the alternatives available for a child too ill to attend school. She said families who contact the council need to be provided with a good understanding of the options available to them
11. I asked the Council to explain how it reached its decision on this remedy with reference to the Ombudsman’s guidance on remedies for loss of educational provision. The guidance states that where fault has resulted in loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 per month to acknowledge the impact of that loss. The figure should be based on the impact on the child and take into account factors including the child’s SEN, any educational provision that was made during that period and whether the period affected was a significant one in the child’s school career.
12. Mrs X told me she felt the injustice caused by the loss provision was very serious. She thought Y could have left school with GCSEs if she had been adequately supported but had instead gained no qualifications.
13. In its response the Council did not reference the guidance on loss of provision. Following this guidance and taking into consideration the child’s SEN, the fact that the loss of provision occurred in her GCSE years and the fact no alternative was offered, I used a high rate of payment - £500. Mrs X contacted the Council for help in January 2019. Y was out of education until June 2021, a total of 30 months. I deducted four months for the 2019 and 2020 school holidays. The period for remedy is therefore 26 months. This produces a total remedy of £13,000. The Council has already paid £6,223.37 to reimburse Mrs X for her spend on tuition for Y and for its failure to assess her needs.
14. However I do not consider the tuition arranged for Y by Mrs X amounted to a suitable education. There is therefore £6,776.63 outstanding, which the Council has agreed to pay. This sum should be used for Y’s educational benefit and to meet the cost of any additional support, education and training for Y outside of that identified in her EHCP. Its use is to be agreed between the Council and Mrs X.
15. The Stage 2 investigation says that Mrs X had a responsibility to seek advice and guidance when it was clear her daughter could not attend school due to her mental health. Mrs X has shared emails with me that show she made very clear to the Council the reason for her daughter’s non-attendance was ill-health. The Council has also shared its materials on elective home education with me.
16. While these materials make clear the implications of home education, they do not mention the fact that the Council has an obligation to provide education for children who cannot attend school for health reasons or otherwise. The Council has agreed to amend its materials to include information for parents of children who are in this position, including those whose children are privately educated.

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Agreed action

17. The Council has agreed that within one month of my final decision it will pay Mrs X:
1. £6,776.63 to be spent for Y’s educational benefit in agreement with the Council; and

within three months of my final decision it will:

2. amend its materials on elective home education to make clear that the Council has an obligation to educate children who cannot attend school for health reasons, due to exclusion or otherwise.

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Final decision

18. I have completed my investigation with a finding of fault by the Council leading to injustice. The Council has agreed financial remedies and a service improvement.

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Investigator's decision on behalf of the Ombudsman