Summary: Mrs X complains that the Council did not provide her son, C, with adequate alternative education in a timely manner when he was out of school. She says C missed education and says this has been stressful and upsetting. The Ombudsman finds fault with the Council for not acting sooner to provide alternative education. This caused Mrs X injustice. The Council will apologise and make a payment to Mrs X.

The complaint

1. The complainant, who I refer to here as Mrs X, complains about alternative educational provision for her son, C. She complains that:
1. the Council failed to provide adequate alternative education in a timely manner; and,
2. the Council’s initial education provision was inadequate.
2. Mrs X says C missed education for four months, and then had inadequate educational provision. She says this has been stressful and upsetting.

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What I have investigated

3. I have investigated the Council’s actions from the time C was out of school (December 2018) to the time the Council issued C’s final Education, Health and Care plan (April 2019). The final section of this statement contains my reasons for not investigating later than April 2019.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with a council’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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. We cannot investigate a complaint if someone has appealed, or has the right to appeal, to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
10. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

12. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
13. I have considered the relevant legislation and statutory guidance, set out below. I have also considered the Ombudsman’s focus report, ‘Out of school … out of mind? How councils can do more to give children out of school a good education’, published September 2011.

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What I found

What should have happened

14. The Education Act 1996 (section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
15. The only exception to this is under subsection 3AA of section 19 of the Education Act 1996, where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
16. In 2013, the government published statutory guidance for councils about alternative provision. This says that, while there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days.
17. The guidance says where full-time education would not be in the best interests of a child because of their physical or mental health, councils should provide part-time education on a basis it considers is in the child’s best interests.
18. The guidance says where a council has identified that alternative provision is needed, it should make sure it is arranged as quickly as possible and that it appropriately meets the needs of the child. The guidance says the law does not specify the point during a child’s illness when it becomes the council’s responsibility to secure suitable full-time education for the child.
19. The guidance says virtual classrooms and online learning platforms can provide access to a broader curriculum. However, using electronic media like this should generally be used alongside face-to-face education, rather than as sole provision. The guidance notes that in some cases, the child’s health needs may make it advisable to only use virtual education for a certain time.

What happened

20. Mrs X’s son, C, has special educational needs and poor mental health. He began secondary education in September 2018. However, C did not cope well, and his mental health began to decline. C stopped attending school on 13 December 2018. He was unable to attend because of his mental health.
21. Between December 2018 and February 2019, Mrs X communicated with the school. In early February, the school asked Mrs X for medical evidence that said C was not able to attend school.
22. Mrs X gave the school a letter from the Children and Adolescent Mental Health Service (CAMHS) in late-February. This confirmed C’s mental health and said C was unfit to attend full-time education.
23. On 1 March, the school made a referral to the Council’s Inclusion Support Service (ISS) for alternative education provision for C. The Council immediately commissioned a place at a local education centre. Mrs X disagrees that this happened.
24. The next working day, the education centre contacted Mrs X to offer home tuition for C. The Council says Mrs X declined this because she wanted C to receive online learning. Mrs X disagrees that she declined this. She says she told the Council before this that face-to-face tuition was not appropriate for C and would not work. She says she discussed this with the education centre who agreed that this type of education would be inappropriate for C.
25. On 8 March, the education centre commissioned alternative education provision from an online resource which provides alternative education for young people who are unable to attend mainstream school. This began in late-April, after the Easter school holidays.
26. In mid-April, the Council sent Mrs X C’s final Education, Health and Care (EHC) plan.
27. In May, Mrs X complained to the Council.

Analysis

Failing to provide adequate alternative education in a timely manner

28. Mrs X complains that the Council failed to provide adequate alternative education in a timely manner (part a of the complaint).
29. The Council says the school tried to work with Mrs X to get C back to school between December 2018 and February 2019. It says the school then asked for specific medical evidence that showed C was not fit to attend school, which Mrs X provided at the end of February. It says the school made a referral to the Council’s Inclusion Support Service (ISS) on 1 March.
30. Statutory guidance explains that alternative education provision should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days.
31. C’s first day of absence was 13 December. The 15th day of school after this was 17 January. The Council says it acted immediately once it received the school’s referral for alternative provision from the school.
32. I find that there was approximately once month between the 15th day of absence and the Council acting on the referral from the school. Irrespective of the school’s actions, when a child is absent from school for 15 days a council should be actively looking at providing education.
33. It is my view that the Council should have been more pro-active during that month to consider its duties to provide alternative education. It did not do this. This is fault. I consider that this fault caused uncertainty by the Council not acting sooner when the 15-day threshold was met, and meant C lost education provision over this period of time. This is injustice.

Inadequate initial education provision

34. Mrs X complains that the Council’s initial education provision was inadequate (part b of the complaint).
35. As I have said, I am only investigating the Council’s actions between the date C stopped attending school (December 2018) and the time the Council issued the final Education, Health and Care plan (April 2019). There was no alternative education in place during this time, so I cannot find that the education provision during this time was inadequate, as Mrs X says.
36. The provision Mrs X complains about was put in place after she had the right to appeal. For this reason, I cannot look at the adequacy of the provision that was in place after the time Mrs X appealed. This is because of the Ombudsman’s jurisdiction, explained in the final section of this statement.
37. However, I can look at the actions the Council took to arrange alternative education in that time. The education centre offered home tuition, which the Council says Mrs X declined, and offered online learning which Mrs X accepted.
38. Mrs X says she did not decline home tuition. She says she told the Council from the start that face-to-face tuition would not be appropriate for C and it would not work. She says she discussed this with the education centre who agreed that it would not be appropriate, so this did not start.
39. The Council says that tutors “all have considerable experience of teaching children with SEN [special educational needs]”. Mrs X believed that the face-to-face tuition offered by the Council was not appropriate for C. I consider that the offer of home tuition was not inadequate, as Mrs X says. The Council arranged for face-to-face learning (home tutoring) and online learning, which is in line with the guidance.
40. It is for these reasons that I do not find the Council at fault.

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Agreed action

41. Within four weeks of this decision, the Council has agreed to apologise to Mrs X in writing for the injustice identified in paragraph 33.
42. Within four weeks of this decision, the Council has agreed to make a payment to Mrs X of £200 to reflect the injustice. This is in line with the Ombudsman’s published guidance on remedies.
43. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

44. I have completed my investigation and I uphold part a of this complaint because I have found fault causing injustice. The Council has agreed to take action to remedy this.
45. I do not uphold part b of Mrs X’s complaint. This is because there is no fault.

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Parts of the complaint that I did not investigate

46. I have not investigated the Council’s actions after April 2019. This is because Mrs X had the right to appeal C’s Education, Health and Care plan at tribunal from the date the final plan was issued (April 2019).
47. As I have said above, we cannot investigate a complaint if someone has the right to appeal to a tribunal. So, the Council’s actions from April 2019 onwards are outside the Ombudsman’s jurisdiction.
48. I cannot look at the school’s actions or what happened in the school because it is outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman