Summary: Ms X complained the Council failed to provide alternative education for her son, Y. We found fault by the Council as it did not properly check what provision was in place for Y even though it was aware of his situation. As a result, Y missed out on education and his welfare suffered. Ms X also experienced stress and financial loss. The Council has agreed to a financial remedy in recognition of the injustice caused to Ms X and Y.

The complaint

1. Ms X complained the Council failed to provide alternative education for her child, Y, who was out of school for 18 months. She says they missed out on education and other opportunities like socialising, and as a result their welfare suffered. She also experienced stress and financial loss.

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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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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)

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How I considered this complaint

5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
7. 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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What I found

Education, Health and Care (EHC) plans

8. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.

Part-time timetables

9. The DfE guidance (Working together to improve school attendance) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
10. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says 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.

Alternative provision

11. Section 436 of the Education Act 1996 (‘the Act’) requires councils to identify children not receiving an education.  
12. 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.
13. 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)
14. Where a child or young person has an EHC plan, the council responsible for maintaining the plan must be closely involved in any decision about placement in alternative provision. The EHC plan will set out the pupil’s SEN and will specify the special educational provision they require. Any arrangements should be made to ensure that this provision continues to be delivered. Schools should always inform the council when they commission alternative provision for a child to ensure the council maintains oversight of sufficiency and safeguarding. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

15. Y stopped attending school in May 2023 because their mainstream primary school could not meet their special educational needs. Y missed out on education and other opportunities, like socialising with classmates, and their welfare suffered. Ms X had to stop working to look after Y.
16. At the start of the following school year, in September 2023, the school told the Council about a reduced timetable and extra support for Y. It also asked the Council to assess Y for an EHC Plan.
17. Ms X says the support and reduced timetable offered was still not suitable for Y and therefore he continued not to attend school. The Council says it was only told about Y’s non-attendance by the school in January 2024.
18. The Council issued a final EHC Plan in February 2024. The Plan named Y’s existing primary school, with provision to support Y to transition to secondary school for the next school year in September 2024. The Plan also prescribed funding for alternative provision if Y was not attending school.
19. The Council says it did not follow up with the school to confirm whether the alternative provision or transition support was provided. Y continued to not attend education, or have alternative support, until he started at a specialist secondary school in September 2024.
20. Ms X complained to the Council in early December 2024. The Council responded 2 weeks later and said the school was responsible for alternative provision.

Analysis

21. Y did not attend school from May 2023 until September 2024. The school told the Council that Y was on a reduced timetable in September 2023.
22. There is no evidence the Council kept Y’s case of part-time education under review. This is fault. Had it done so, it is likely it would have been aware of Y’s absence sooner.
23. The school told the Council that Y was not attending at all in January 2024. Funding to provide alternative provision for Y was noted in their EHC Plan in February 2024. However, the Council did not follow this up or confirm the school was providing the agreed support.
24. Section 19 of the Education Act 1996 says that councils must arrange suitable education at school or elsewhere for pupils who are out of school. This can be arranged via the pupil’s school, but the responsibility for ensuring the alternative provision is suitable and accessible remains with the Council. It is fault that the Council did not follow up with the school to check Y was receiving the agreed alternative provision and support.
25. The fault by the Council caused Y to miss out on education for a whole school year, from September 2023 to September 2024. Y also missed out on important support and opportunities during the transition year from primary to secondary school. As a result their welfare suffered.
26. Ms X had to stop working to care for Y at home, causing her financial hardship. Y and the family also suffered stress and inconvenience as a result of the Council’s failure to ensure that Y had appropriate education and support in place.

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Action

27. In recognition of the injustice caused to Ms X and Y the Council should, within one month of the final decision:
1. Apologise to Ms X and Y in accordance with our guidance on making an effective apology;
2. Pay Ms X, on behalf of Y, £1000 per term (total of £1500 for 1.5 terms) for the loss of educational provision from September 2023 until the EHC Plan was in place in February 2024;
3. Pay Ms X, on behalf of Y, £2000 per term (total of £3000 for 1.5 terms) for the loss of educational provision from February 2024 to September 2024, in accordance with our guidance on remedies;
4. Pay Mrs X £500 for the avoidable distress and inconvenience.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman