Summary: Mrs X complained the Council has failed to provide her son, Y, with suitable education while he was unable to attend school and he has missed education. Mrs X also complained the communication with the Council was difficult. Mrs X says she suffered distress and has had to give up working to care for Y, putting financial pressure on the family. The Council did not provide a suitable education for Y, communication was difficult and Mrs X has been put to time and trouble to complain.

The complaint

1. Mrs X complained the Council has failed to provide her son, Y, with suitable education while he was unable to attend school and Y has missed education. Mrs X also complained the communication with the Council was difficult. Mrs X says she suffered distress and has had to give up working to care for Y, putting financial pressure on the family.

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The Ombudsman’s role and powers

2. 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)
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. 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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How I considered this complaint

5. I read Mrs X’s complaint and spoke with her about it on the phone.
6. I considered information provided by Mrs X and the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

8. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
9. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013).
10. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017).
11. 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)).
12. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
13. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
14. 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)).
15. 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).
16. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’).
17. In July 2022 the Ombudsman issued a Focus Report - Local Government and Social Care Ombudsman - Out of school, out of sight?

What happened

18. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
19. Mrs X applied for an EHCP for Y in April 2021 due to his complex Special Educational Needs (SEN), school-based anxiety and trauma following several previous incidents at school. Mrs X has not raised concerns about how Y’s needs have been assessed. This investigation has focused on arrangements for Y when he stopped attending school.
20. In early September 2021, Mrs X wrote to the Council to request alternative education for Y because his school-based anxiety and trauma meant he could no longer attend. Mrs X attached a letter from the GP which stated Y needed further help with his health to support him to return to school. The GP confirmed it had requested a CAMHS appointment. Mrs X confirmed Y would be off school for more than 15 days and requested suitable education while he could not attend. There is no evidence this letter was replied to.
21. Three weeks later, Mrs X emailed the Council again. The email confirmed she had not received a response to the original letter. She attached another letter from the GP which confirmed a date for the CAMHS appointment. Mrs X again requested suitable alternative education be put in place immediately. There is no evidence this email was replied to, or that the Council considered action to enforce Y’s attendance if it felt he was able to attend.
22. Mrs X emailed the Council again in October and confirmed she had not received any response still and Y had not been in school so far that term.
23. The Council has provided multiple internal emails from Y’s school from October 2022. The emails discuss support offered to Y from the school and what other support is available from the Council. An internal school email stated the Council had an obligation to support the family.
24. Mrs X officially complained to the Council in January 2022 that it had not provided the education it is responsible to deliver, nor had it responded to any of her previous communications.
25. The Council responded to Mrs X’s complaint at the end of January. It confirmed the service lead investigating the complaint was waiting for a response from the school. The Council said it would respond by the middle of February.
26. Mrs X chased for a response on the day the Council had stated it would respond. The Council emailed Mrs X, apologised for the delay and attached the final complaint response, (dated five days before the email). The response offered two hours tuition per day during term time and stated the Council was not responsible initially for alternative education, the school was, and the school had offered educational resources and tuition. The Council confirmed this was its final response.
27. Mrs X responded to the Council and challenged statements that claimed the school offered tuition. The school had contacted Hospital and Outreach Education (HOE) in January but had not offered other support. Mrs X questioned the statement the responsibility for Y’s education remained with the school. Mrs X stated the Council needed to carefully manage Y’s tuition given his needs and did not want to further traumatise him. Mrs X suggested a suitable tutor with experience of dealing with Y’s SEN conditions and interacting with a young, traumatised child was needed. Mrs X requested the Council move the complaint to stage two of the complaints process.
28. The Council contacted the school to enquire when it first offered tuition. The Council asked why the school had not considered the HOE offer before January. The school confirmed the HOE referral was made in January and the offer of a tutor was made on the same day. The email also confirmed several other options were offered to the family, but Y’s parents were mindful of his ongoing anxieties. The school confirmed it had sent weekly overviews, planning and resources to help with Y’s education and met with the family monthly.
29. The following day the school emailed the Council to confirm Y was ineligible for HOE because he is a primary aged student and HOE do not support this phase of education. The Council provided a tutor for Y to access education and school continued to provide education resources.
30. Mrs X emailed the Council at the end of March and confirmed she had not received any further contact about escalating the complaint. The email stated the school had not offered meaningful work and had not offered a tutor. She stated the school decided a tutor from school was not appropriate for Y. Mrs X confirmed Y had been assessed as being High Learning Potential and what the school provided was not suitable for his ability.
31. The Council responded to Mrs X at the start of April, apologised for the delay and offered to meet with her.
32. Mrs X responded to this and stated she was still unclear whether the Council had escalated the complaint to stage two. Mrs X questioned the benefit of a meeting as she had provided a lot of information. Mrs X stated it remained the legal obligation of the Council to provide Y with a suitable education.
33. Mrs X emailed the Council in late April and confirmed she had not received any response from the Council and no potential dates for the meeting offered. The email confirmed she requested the Council progress the complaint to stage two in the middle of February 2022 and should have had an outcome 20 working days later.
34. Y’s EHCP was finalised in May 2022. Mrs X advised the tuition provided by the Council was not suitable for Y’s needs. Mrs X had decided with a psychologist not to get another tutor, but to wait until Y started at a specialist education provision in September 2022.
35. Mrs X is not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to apologise and thinks Y should be compensated.
36. In response to my enquiries the Council stated Y was on roll with the school, so the school had responsibility for providing Y with suitable education. The response stated its staff failed to record Mrs X’s original emails as complaints and only recorded the issues when she officially complained in January 2022. The Council apologised for not responding to Mrs X’s original emails. The Council provided evidence of the HOE offer to children who are unable to attend school. Its local offer website stated HOE works with school age children aged five to 18.

My findings

37. The law requires a Council to arrange suitable education for a child it knows cannot attend school due to exclusion, illness or other reasons. The Council was aware Y was unable to attend his school in September 2021. There is no evidence to indicate the Council considered any enforcement action to secure attendance and on balance therefore accepted Y was unable to attend school.
38. It appears from the complaint correspondence and in its response to our enquiries, the Council has fundamentally misunderstood its legal duties to arrange suitable education in these circumstances. The Council cannot delegate its duty to arrange a suitable education for Y.
39. It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests. There is no fixed definition of full-time education, but it should be equivalent to the education they would receive in school. It is recognised where a child receives one to one tuition, the hours of face-to-face provision could be fewer as the provision is more concentrated.
40. The Council did not ensure Y was provided with an education suitable to his ability. This is fault and has led to Y missing out on education.
41. Y was referred to the HOE, but this referral was rejected because he was of primary school age and HOE does not support this phase of education. The Council responded to enquiries stating HOE does work with all school age children and attached a link to the local offer which confirmed the age HOE works with was five to 18. The Council has now clarified there is no education base for primary aged children, but HOE input was available and discussed with the school. The Council has agreed to update its website and local offer to ensure the information is clearer.
42. 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.
43. When a young person has missed education as a result of fault by the Council, we may recommend the Council makes a symbolic payment to acknowledge the education they have missed and help them to catch up. We usually recommend a payment of between £200 and £600 per school month to acknowledge the impact of that loss, to be used for the young person’s educational benefit, but also consider SEN.
44. The Council did not provide any suitable education from September 2021 until March 2022. There were four weeks school holiday in this time, so Y missed six months of education. The Council then offered a tutor. I acknowledge Mrs X did not consider the tutor was suitable. Mrs X decided with professionals not to source another tutor after she confirmed Y was unable to continue with the tuition offered. The Council not providing suitable education is fault and Y has missed out on suitable education for six months.
45. Mrs X has experienced significant delay in communication from the Council. Mrs X has evidence of several emails the Council has not responded to and timescales in the complaint process have been missed. This is fault and has caused Mrs X distress and she has been put to time and trouble to complain.

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Agreed action

46. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to the following action within 4 weeks of my final decision:
• Apologise to Mrs X for failing to provide Y with a suitable education and for its poor communication.
• Pay Mrs X £250 as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Pay Mrs X £1800 for not providing Y with a suitable education for six months. This money should be used for Y’s benefit.
• Ensure staff are aware of the Councils statutory obligation and those of the school as detailed in the Education Act 1996 to ensure a child receives a suitable education if they are unable to attend school.
• Update its website and local offer to ensure information about HOE support to children of primary school age is clear.
47. The Council should take the following action within three months of my final decision:
• Review its policies and procedures to ensure the Council retains oversight and responsibility for its duties to children unable to attend school.
48. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

49. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman