Summary: the Council delayed putting in place alternative provision when Mrs B’s daughter could not attend school. An apology, payment to Mrs B, reminder to officers and provision of evidence to show the measures the Council has put in place to address the issues with alternative provision is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council failed to provide education to her daughter when she could not attend school due to medical issues.
2. Mrs B says the Council’s failures mean her daughter has missed out on education and it has caused her significant distress.

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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. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Mrs B and the organisation 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

What should have happened

9. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative provision.
10. 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)
11. The provision can be at a school or otherwise, but must be suitable for the child's age, ability and aptitude, including any special needs. It should be on a full-time basis unless, in the interests of the child, part-time education is considered to be more suitable. Government guidance states that part-time one-to-one tuition can count as full-time because it is more intensive.

What happened

12. Mrs B says her daughter has had difficulty accessing school since 2020. Mrs B says her daughter completely stopped attending school in June 2022.
13. There is no evidence the school told the Council Mrs B’s daughter had stopped attending until November 2022 at a team around the family meeting. That meeting noted Mrs B’s daughter had struggled to attend school for the previous 6-7 months and strategies and a bespoke timetable had been attempted. At that point it was agreed Mrs B would contact her GP to seek evidence for a referral to access hospital home tuition.
14. In early 2023 it became clear there was a difficulty getting an appropriate referral for hospital home tuition. There is no evidence the Council considered alternative options, despite Mrs B and her sister asking the Council repeatedly for alternative provision and pointing out the Council’s section 19 duty.
15. When hospital home tuition was arranged Mrs B raised concerns with the Council in April 2023 because the provision was in person. Mrs B made clear her daughter could not access in person provision. Mrs B asked the Council for alternative provision as her daughter was struggling to access the one-to-one tuition for one hour a week arranged by the school.
16. The Council made a further referral to panel for funding for alternative provision in July 2023. The panel agreed 32 hours per week. Mrs B’s daughter remains on the roll of the school but receives an alternative provision package. That began in September 2023.
17. Following consideration of a complaint the Council accepted it had failed to meet the standards expected. As well as apologising to Mrs B the Council put in place the following measures:
• introduction of a section 19 policy;
• the Council will meet with every school in the area each term to discuss attendance and a plan will be put in place for each child struggling to attend school to address their needs and support them back into education;
• considering how best to change the delivery of hospital home tuition to make it more accessible, more flexible and to ensure it delivers an appropriate level and duration of provision based on an individual student’s needs; and
• engaging with alternative education providers to improve the wider offer.

Analysis

18. Mrs B says the Council failed to put in place alternative provision for her daughter when it knew she could not attend school due to medical issues. Mrs B says this means her daughter missed out on education between June 2022 and September 2023.
19. I am exercising the Ombudsman’s discretion to investigate the period from June 2022 onwards. That is because I am satisfied Mrs B has remained in contact with the Council throughout and has experienced her own medical issues during that time.
20. Having considered the documentary evidence, there is no evidence the Council knew about any difficulty with Mrs B’s daughter attending school until November 2022. I appreciate Mrs B’s daughter has had a lengthy period where she has struggled to attend school. However, the documentary evidence I have seen satisfies me the school was initially attempting to work with the family to resolve the issue and the Council did not become involved until November 2022. As Mrs B’s daughter remained on the roll of the school and the school was attempting to put in place provision to enable her to reintegrate into the school I do not criticise the Council for any lack of provision before November 2022.
21. I am concerned though about what happened after November 2022. There is no evidence in the documentary records to suggest the Council considered anything other than hospital home tuition until later in 2023. Given hospital home tuition requires a specific referral process involving medical professionals and the Council knew Mrs B’s daughter was not attending school I would have expected it to consider alternatives and put in place alternative provision promptly. As I said in paragraph 9, the Council has a statutory duty to ensure every child receives education and it failed to do that in this case between November 2022 and September 2023. That means Mrs B’s daughter missed out on 2.5 terms of education. Failure to put in place alternative provision between November 2022 and September 2023 is fault.
22. I am particularly concerned the Council made little effort to identify alternative provision other than hospital home tuition given Mrs B continually asked the Council to put provision in place. I welcome the Council’s willingness to admit that things went wrong in this case though as it has accepted that hospital home tuition is difficult to access, that it failed to keep Mrs B up to date with progress and that it failed to consider the type of alternative provision that was suitable for Mrs B’s daughter. All of that is fault.
23. I do not consider it likely Mrs B’s daughter could have accessed full-time provision straightaway given she had been out of education and had difficulties accessing education for some time. I also take into account the specific needs of Mrs B’s daughter has which means not all alternative provision works for her. Taking those issues into account, plus the fact the school put in place minimal (one hour per week) provision for part of the period I recommended the Council pay Mrs B £1,500 for each term of missed education from November 2022 to September 2023. That equates to £3,750. I also recommended the Council pay Mrs B an additional £400 to reflect her distress and the time and trouble she had to go to, making a total financial remedy of £4,150. The Council has agreed to my recommendations.
24. I welcome the measures the Council has put into place to address the issues that have arisen in this complaint. In particular, I am pleased to note the Council has now drafted a section 19 policy which will be put in place shortly. I also welcome the fact the Council has put in place a meeting each term with schools to ensure it is aware of those children not receiving education and that it is engaging with alternative education providers to improve the wider offer as well as considering how to change the delivery of hospital home tuition. As part of the remedy for the complaint the Council will provide details to the Ombudsman to show what measures it has put in place to address how it delivers alternative provision. I also recommended the Council remind officers of the need to consider what alternative provision is suitable for a child’s needs and that alternative provision should be put in place promptly. The Council has agreed to my recommendation.

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Agreed action

25. Within one month of my decision the Council should:
• apologise to Mrs B for the distress and upset she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £4,150;
• remind officers dealing with children unable to attend school of the need to consider what alternative provision is suitable for a child’s needs and to put that alternative provision in place promptly;
• provide evidence to the Ombudsman of the measures the Council has put in place to address alternative provision for children unable to attend school due to medical reasons.

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Final decision

26. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman