Summary: Mrs X complains the Council failed to arrange suitable education for her child and it is refusing to reimburse costs for the educational provision she arranged privately. The Council was not at fault for the length of time it took to arrange alternative provision and I am satisfied the Council considered all relevant information when deciding what and how much provision was suitable for her child. There is no fault and no injustice to Mrs X or to her child.

The complaint

1. Mrs X complains the Council failed to provide her child with a suitable education when he was unable to attend school. Mrs X would like the Council to reimburse her for the costs she incurred in arranging face to face Science tuition for her child.

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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. 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)
3. 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)
4. 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

5. I considered the information I received from Mrs X and the information I received from the Council in response to my enquiries.
6. Mrs X and the Council had the opportunity to submit their comments on a draft of this decision. I considered their comments before making this final decision.

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What I found

Relevant law and guidance

7. 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.
8. 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)
9. 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))
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. 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))
12. 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)
13. 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’)
14. 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
15. 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.

16. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled.

What happened

17. This is not an exhaustive list of every event. It is a brief chronology of events relevant to the investigation.
18. Mrs X has a child, Y, who was in Year 11 at a mainstream school.
19. Y’s attendance began to decline. The school followed the staged process for attendance which offers a support first approach to improving attendance. In October 2023 the school made referral for education due to health needs to the Council for Y. The Council agreed home tuition would be appropriate for a short period.
20. The Council asked the school to arrange a meeting with Mrs X to plan the support Y would need and it asked the school to ensure there were regular review dates. The school and the Education Welfare Officer (EWO) tried on several occasions to contact Mrs X via telephone and email. The EWO contacted the school to check Mrs X’s contact details were correct because she was unable to reach her. Mrs X responded on 26 October 2023 to say they were on holiday.
21. On 30 October 2023 the Council sent another request to the school to arrange a meeting with Mrs X. The purpose of the meeting was to plan a short-term package for Education for Sick Children and for the meeting to include a plan for reintegration back into school so Y could do his GCSE exams. The school tried to contact Mrs X again on 1 November 2023 and it says there was an international dial tone, no answer from Mrs X and so a voicemail was left. The EWO encouraged the school to keep trying to contact Mrs X so that arrangements for Y’s education could be made.
22. On 3 November 2023 contact with Mrs X was made and a discussion was had about the need for continued commitment with the school. The EWO explained to Mrs X a meeting with the school needed to be held to ensure the provision meets GCSE needs and also to discuss a reintegration plan.
23. This meeting was held on 15 November 2023. The following day the Council began making arrangements for a tutoring package.
24. On 29 November 2023, Mrs X agreed to online tuition and the sessions began on 29 November 2023.
25. On 5 December 2023 Mrs X requested Science be included in the alternative provision. The Council asked the tutor to incorporate Science into the 10 hours it had arranged. Mrs X wanted additional hours for Science. She requested 20 hours of tuition per week for Y as she did not consider 10 hours per week was sufficient. The Council refused to arrange 20 hours of tuition.
26. On 29 January 2024, a review meeting was held. The notes from the meeting say Y was making progress, he had accessed some education at school, the amount of provision was discussed and Mrs X said that Y was managing at home but he was still anxious about attending school. Y was able to use the Science revision provided by the school and the school was also going to provide revision materials for English and Maths.
27. On 27 February 2023 the Council advised Mrs X it would not pay for any tuition she arranges privately.
28. On 12 March 2024 the Council found a tutor that could deliver face to face tuition 1 hour a day. Therefore, 5 hours face to face and 5 hours online were agreed.
29. A further review meeting was held on 28 March 2024 and Mrs X said she was concerned that the tutors were not qualified teachers. Mrs X said she had secured and paid for extra tuition privately. The tuition company confirmed to the Council the tutors were qualified teachers.
30. In April and May 2023, Mrs X cancelled some sessions of tuition arranged by the Council.
31. Mrs X complained to the Council about the quality of the provision and she requested the Council reimburse her for the provision she had arranged privately. The Council did not uphold her complaint and refused to reimburse the cost of provision.
32. Mrs X was unhappy with the Council’s decision and brought her complaint to the Ombudsman.
33. The Council reinvestigated Mrs X’s concerns about the tutor’s qualifications in March 2025. It found the tuition company had provided the Council with incorrect information and the tutors were not qualified teachers. The tutors had satisfactory DBS checks and knowledge and experience of working with children in education.
34. Although the tutors were not qualified teachers, the Council maintains Y was provided with a suitable education. Mrs X disagrees.

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Analysis

Delay in arranging alternative provision

35. The general section 19 duty applies to all children of compulsory school age, whether or not they are on the roll of a school. But 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. The courts have determined that it is for councils to consider whether the education is available and accessible to the child.
36. The Council first became aware Y was not in school in October 2023, when the school made a health referral to the Council. The Councils duty to arrange a suitable education for Y began from this date.
37. There is no statutory timescale for arranging the provision but it should have been arranged as quickly as possible after 11 October 2023. Mrs X is of the view the Council delayed in arranging the alternative provision because the Council became aware Y was not attending school on 11 October 2023 but the tuition did not commence until 29 November 2023.
38. The Council was not at fault for any delay in arranging alternative provision. From 11 October 2023 to 29 November 2023, the Council was actively engaging with the school, referrals were made to mental health agencies and Family Help, referrals to tuition agencies were made in a timely manner and there is also a period where the Council and the school were unable to contact Mrs X due to her being out of the country at the end of October and the beginning of November 2023. Also, Mrs X has advised me that during this period the school had provided Y with access to revision materials for his GCSEs. Therefore, I am satisfied the Council arranged the alternative provision as soon as it could. Any delays were attributable to factors outside of its control including Mrs X’s unavailability. I also understand Mrs X did not respond to contact from the Family Help Team. I cannot criticise the Council for this. The Council is not at fault.

The suitability of the provision

39. Mrs X is unhappy with the amount and quality of the provision arranged by the Council. Specifically, she is unhappy with the qualifications of the tutors and the Council’s decision to incorporate Science within the ten hours of alternative provision it had arranged.
40. There is no evidence of fault by the Council for the decisions it made and the action it took with regards to the suitability of the provision. Y was too unwell to attend school so the Council arranged a tutoring package. I acknowledge that initially the Council was unable to find a tutor to deliver provision face to face but it arranged online tuition. I consider this was a suitable alternative and it was accessible for Y because he was unable to physically attend school due to his health needs.
41. It is not for the Ombudsman to decide what or how much education Y could manage. This is a decision for the Council to make once it has considered all relevant evidence. The Council considered Mrs X’s views, the school’s and medical evidence regarding Y’s mental health.
42. The documentation I have received from Mrs X shows the Council arranged 10 hours of provision and it had advised the tutor that Science should be incorporated into this time also. Mrs X disagreed with this and was of the view additional hours should be provided for Science. Mrs X requested 20 hours of tuition per week.
43. The Council refused Mrs X request for 20 hours tuition. The school confirmed to the Council there was an element of independent learning with regards to revision for GCSEs and this would be expected if Y was physically attending school. The Council came to the view Y was able to manage 10 hours of tuition per week and that this would complement the independent learning and revision for his GCSEs.
44. The Council liaised with the school and Mrs X when formulating a plan of provision and it considered the medical evidence Mrs X had provided. Regular reviews were also undertaken. The evidence on progress provided at the reviews do not support Mrs X’s complaint about the suitability of the provision. Mrs X has also provided me with an email she sent to the Council in December 2023 where she says Y was responding well to the tuition arranged by the Council. The reviews that followed also support this. It is also important to note that one-to-one tuition should be less than what a child would receive in a classroom because the provision is more concentrated.
45. Mrs X says there was a delay in providing Y with alternative provision for Science, she says it began after 8 January 2024. This delay was not attributable to the Council because the information Mrs X has sent to me shows the Council offered Science tuition at the beginning of December 2023 but Mrs X did not agree that it should delivered within the 10 hours of provision. This is not the Council’s fault.
46. Mrs X went on to arrange Science tuition privately. Mrs X has sent documentation to me that shows the Council advised her on 27 February 2024 that it would not pay for tuition she arranges privately. Mrs X went on to arrange tuition privately and has complained that the Council is refusing to reimburse her for this. Mrs X has also provided me with documentation that shows the Council advised the tutor in December 2023 to provide science tuition but Mrs X refused and wanted additional hours for Science. Mrs X also cancelled some tuition sessions the Council had arranged. I cannot criticise the Council for this. It was Mrs X’s choice to refuse science tuition in December 2023 and to arrange additional science tuition privately when she was told explicitly by the Council that it would not pay for tuition she arranges privately. The Council has managed Mrs X’s expectations regarding this from the outset.
47. Mrs X had concerns the tuition was being provided by people who were not qualified teachers. The Council investigated her concerns and were initially advised by the tuition provider that the tutors had Qualified Teacher Status (QTS). The Council reinvestigated this issue with the tuition provider in March 2025 following further correspondence from Mrs X. The Council found it had been provided with incorrect information and two of the tutors did not have QTS. The Council is not at fault for the incorrect information it received.
48. The Council is not at fault because there is no statutory requirement for alternative provision providers to have QTS. The tutors had completed satisfactory DBS checks and had experience of working with children in education. In addition to this, there is no significant injustice to Y because he was responding well to the tuition he was receiving and as mentioned previously, this was echoed by Mrs X in an email to the Council as well as in the reviews.
49. The Council is not at fault because the provision arranged was suitable and accessible for Y.

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Final decision

50. There is no evidence of fault by the Council. I have completed my investigation and propose to close this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman