Summary: Ms X complained the Council failed to provide her son with a full-time suitable education meaning he missed out on education and affected his mental and physical health. The Council failed to evidence why it was in Ms X’s son’s best interest to only receive 12 hours per week and it failed to promptly review this and put additional provision in place. A suitable remedy is agreed.

The complaint

1. Ms X complains the Council failed to provide her son with a full-time suitable education, providing only 12 hours per week.
2. Ms X says this resulted in her son missing out on education and has affected his mental and physical health.

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The Ombudsman’s role and powers

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Alternative provision

7. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
8. 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))
9. 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”.
10. 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))
11. 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)
12. 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’)

Focus report

13. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
14. We 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 (except for 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 when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

Key facts

15. Ms X’s son, Z, has an Education, Health and Care Plan (EHC Plan) and was on roll at a mainstream school. However, Z struggled to attend school due to mental and physical health needs and at an emergency review meeting in July 2023, the school said it was unable to meet his needs. The school supported Ms X’s request for alternative education provision.
16. Ms X put together a proposal for alternative education for Z. The Council considered this at a panel in September 2023. The referral said the panel was asked to consider whether it agreed to provide alternative provision until a suitable placement was found; whether a setting could be directed to accept Z and to consider the costs for alternative provision as put forward by Ms X and agreed by the school.
17. The panel agreed to provide funding for just one element of Ms X’s proposal. This was for 12 hours per week at an alternative education setting. Z would attend for four hours each Monday, Wednesday and Friday. No provision was put in place for Tuesday and Thursday. Z has been attending since September 2023.
18. Ms X had made a complaint about the lack of suitable education for Z before the panel considered her case. She escalated this complaint to stage two of the Council’s complaint process on 27 September. In that complaint she raised the issue of Z only receiving 12 hours of education per week. She said Z was capable of full-time education if it is provided in the right place. She said the Council and panel had not provided enough funds to provide a suitable education. She said the funding agreed at panel only allowed for 16 weeks of part time education.
19. The Council responded on 5 December. It agreed it was not in Z’s best interest to return to the school where he was on roll and that it would explore alternative schools to meet his needs. It apologised for how long this was taking and that it was keen to offer Z access to an education via alternative routes as an interim measure. It said that the 12 hours was initially agreed to ensure Z was able to settle in and adjust to a new structure. It said that if Ms X as his parent felt Z was managing well then it could look at whether the provision could be increased.
20. Ms X met with the Council on 22 December and it agreed to consider additional provision. Home tuition started on 26 January 2024 and an additional session was agreed from February 2024. The Council also agreed another session with an outdoor provider.

Analysis

21. Ms X complained the 12 hours per week of alternative education provision was insufficient. As explained above, the Council has a duty to provide alternative provision for children unable to attend school because of illness or other reasons. This alternative provision must be full time unless the Council determines that full-time education would not be in the child’s best interests.
22. The Council says that it initially offered 12 hours per week as it considered this was in Z’s best interest. It says it agreed to start with 12 hours per week and build up from there. It says it considered this was appropriate because of Z’s significant disengagement from education and concerns for his mental health.
23. How much education was in Z’s best interest is a matter of judgement for the officers involved. However, the Council should be able to evidence that it properly considered all relevant factors when reaching this view. I have not seen evidence which shows how it reached this decision including why Z could not manage education on five days and why the other providers suggested by Ms X were not in Z’s best interest.
24. Recommendations in the Ombudsman’s focus report “out of school, out of sight?” updated in August 2023, say councils should keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases. We say the Council should put action into practice without delay to ensure the child is back in education as soon as possible.
25. Ms X was stating in September 2023 that 12 hours was insufficient and particularly that Z needed structure and for some education to be provided each day. However, the Council did not meet with Ms X to explore this until 22 December 2023 and the increased provision did not start for a further month.
26. The Council’s failure to evidence how it reached the view that 12 hours was in Z’s best interest; the failure to review the provision until 22 December after considering Ms X’s formal complaint; and why it took until February to put the further provision in place, amounts to fault.
27. As a result of this fault, I consider that Z lost out on full time alternative education. As education was only provided for 4 hours a day for three days, I consider he missed approximately 40 % for three months. A remedy for this is recommended below.

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Agreed action

28. To remedy the injustice caused as a result of the fault identified above the Council will, within one month of my final decision, take the following action:
• Apologise to Ms X and Z;
• Make a payment of £600, to be used for Z’s benefit, to recognise that full time suitable education was not provided for approximately three months; and
• Share a copy of the Ombudsman’s focus report to all relevant staff and remind them of the importance of keeping proper records of all decisions.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman