Summary: During the course of another investigation, we became aware the Council may have a policy limiting tuition for children out of education to ten hours per week. The Council was not at fault because it tailors tuition provision to a child’s needs without a maximum number of weekly hours.

The complaint

1. During the course of another investigation, we became aware the Council may have a policy of limiting tuition for children out of education to ten hours per week.

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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. 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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

4. I have considered:
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance.
5. 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

Relevant law and guidance

6. 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.
7. The alternative provision duty 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). The package of education may include tuition, if appropriate for the child and their needs.
8. Government guidance (Unregistered independent schools and out of school settings, March 2018) says independent schools must be registered with the Secretary of State for Education. A school is independent if it meets certain criteria, including that it provides full-time education. Further guidance ‘Registration of independent schools’ says the government considers any setting operating during the day for more than 18 hours per week to be delivering full-time education. If an independent school does not register, it is illegal. Councils have a role in identifying illegal settings.

What happened

9. During a previous investigation by us into a young person’s special educational provision (our reference 23 016 225) the complainant told us a Council employee told them their child was ‘lucky’ to have more than ten hours of tuition weekly because ten hours was the maximum the Council would agree. The Council had previously been criticised by the Special Educational Needs and Disability Tribunal in 2022 for placing an arbitrary ten-hour limit on the child’s weekly tuition.
10. This suggested the Council may have a policy of limiting tuition to ten hours per week. We decided there was evidence of fault causing injustice to other children so we opened an investigation to consider the Council’s approach further.
11. Our investigations found the following.
• In July 2021, the Council decided to increase the capacity in its service that delivers one to one tuition for children waiting for a school place. The decision-making record noted that existing systems allowed the Council to commission external tuition providers for ten hours per week.
• The Council currently has 338 children or young people receiving tuition. Of those 338, 128 have up to ten hours tuition per week from one provider. Some of those pupils may have additional hours from another provider.
• 193 of the 338 pupils have 10-16 hours tuition per week and 17 receive 20-25 hours per week.
• The Council has a document it sends to external tuition providers setting out what they are expected to do to deliver tuition on its behalf. The document emphasises tuition should meet a pupil’s needs. There is no limit set on the number of hours the provider can deliver per week.
12. The Council told us:
• it does not have a policy of limiting tuition to ten hours per week;
• it has to consider the government guidance on illegal schools. Where a tuition provider cannot deliver more hours without becoming an illegal school, the Council arranges for additional providers to tutor the child or young person; and
• it runs workshops for staff which cover key topics. It would use the workshops to reiterate the importance of tailoring tuition to a child or young person’s needs. The Council also said it would remind staff there is no limit to the number of hours a child or young person can receive in tuition.

Findings

13. The 2022 SEND Tribunal decision and July 2021 Council decision suggest the Council may have, in the past, limited the tuition some children or young people would receive per week to ten hours, even if this was not a formal policy approach.
14. However, the Council has provided evidence of the tuition current pupils receive. 210 (62.1%) of the 338 pupils receiving tuition have more than ten hours per week. The Council has also confirmed it commissions tuition to meet the needs of the child or young person. I am satisfied the Council does not currently have a policy to limit tuition hours arbitrarily, so it was not at fault. Nonetheless, I welcome the steps the Council has said it will take to remind staff they should tailor tuition to a child or young person’s needs.

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Final decision

15. I have completed my investigation. I have not found evidence of fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman