Summary: We have discontinued our investigation of this complaint, about the Council’s involvement with a child who was not attending school full-time. This is because we could not add to the Council’s response or provide anything meaningful through further investigation.

The complaint

1. I will refer to the complainant as Miss B.
2. Miss B complains the Council did not provide adequate support when her son, L, was unable to attend school full-time.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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)

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How I considered this complaint

5. I reviewed Miss B’s correspondence with the Council, a chronology provided by the Council, and a copy of L’s education, health and care plan.

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What I found

6. L started Year 7 in September 2021, but quickly began displaying disruptive and inappropriate behaviour. After several months the school placed L on a part-time timetable and engaged a behaviour specialist to work with him, but this caused little improvement. In May 2022, the school asked the Council to undertake an education, health and care (EHC) needs assessment for L. The Council agreed to do this and issued an EHC plan for him in November.
7. L’s disruptive behaviour continued. The school explored options for supporting L, and in January 2023 said it was seeking to increase his hours, but needed to recruit an assistant to work with L and had been unable to do so. In July the school arranged alternative provision for L to attend in school, but after a brief period of positive engagement his behaviour deteriorated again.
8. In September the Council agreed to seek a new school placement for L. It sent a consultation to another local school, but it responded negatively to the consultation, saying it could not meet his needs. L’s school arranged another alternative provider for L, for him to attend off-site, with some additional online tuition from the school itself. After several weeks the provider reported that L was engaging well with this.
9. In November Miss B submitted a stage 1 complaint to the Council, to which the Council responded in December. The Council noted some of Miss B’s complaint concerned the actions of the school, which it explained it could not address, but it acknowledged L had not received the full-time education to which he was entitled and upheld her complaint for this reason, while noting the effort the school had made to improve his behaviour. The Council also said the other school’s response to the consultation was not “robust” and also upheld Miss B’s complaint for this reason.
10. Miss B then submitted a stage 2 complaint, to which the Council responded in February 2024. The Council explained again it could not answer Miss B’s complaints about the school. However, in light of its previous findings, the Council offered Miss B £2600 to commission additional tuition for him, to make up for some of the educational time he had missed. It also noted Miss B, and L himself, had now asked for him to remain at his original school and not transfer elsewhere.
11. Miss B then referred her complaint to the Ombudsman.
12. In March, the school implemented a new timetable for L, and in April he returned to the school on a full-time basis.

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Legislative background

13. 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. We call this the ‘s19 duty’.
14. 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”.
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’)

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Analysis

17. Having reviewed the information provided by the Council, and Miss B’s correspondence with it, I take the view nothing meaningful could be achieved through further investigation here.
18. In a complaint about a child who has missed a period of education, we will typically seek to determine whether the council’s s19 duty is engaged; and if so, whether it took reasonable steps to arrange alternative provision, as that duty requires. If not, we will normally recommend the council offer a financial remedy, to reflect the loss of education.
19. In this case, it is unclear whether the Council accepted a s19 duty for L. It is important to note, first, he never actually stopped attending school entirely, albeit he was on a part-time timetable for an extended period. However, this was not a form of exclusion, and nor was it because he could not manage at school for a health reason; but because the school needed to manage his behaviour, which was often very disruptive and at times violent.
20. The s19 duty also applies under “other” circumstances, and so it is arguable that is relevant to a child on a part-time timetable because of behavioural issues. But, even accepting this, I note that arrangements were made (whether by the Council or school is unclear) to provide L with alternative provision, with one provider beginning in July 2023, and a second one, more successfully, in September.
21. I should also note the law says a person should normally approach us within 12 months of becoming aware of an issue they wish to complain about. While I am conscious this matter goes back to early 2022, therefore, I must limit my investigation to events from April 2023 – a year before Miss B’s complaint to us – onward.
22. Even putting to one side the alternative provision which was made though, the Council offered Miss B £2600 to pay for additional tuition for L. This is comparable to the type of remedy we would recommend the Council pay, if we found it had failed to arrange alternative provision under its s19 duty, for the period of time I am investigating in this case. Therefore, even if I was satisfied the Council was at fault for this reason, it has already offered a suitable remedy and we would be unlikely to ask it to do more – especially as L has now returned to school.
23. I also note the Council upheld Miss B’s complaint because the part-time timetable did not have an ‘end’ date, as it should, and because the other school’s consultation response was not “robust”. However, these findings seem odd, as the Council was not responsible for either point – and, as it correctly told Miss B, the Council can only address complaints about its own powers and duties, not something a school has done or failed to do.
24. Taking this all together, I do not consider further investigation will add to or change anything in the Council’s response to the complaint, or achieve anything more here. Under these circumstances it is not proportionate to do so, and I will therefore discontinue my investigation.

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Final decision

25. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman