Summary: The Council failed to advise a parent that under Section 19 Education Act councils must provide suitable alternative education when a child is unable to attend school for health reasons, or otherwise. This led a parent to make their own private tuition arrangements when their child could not attend school, in the belief no funding or support was available from the Council. This caused distress, a financial burden and the child missed out on education because a full curriculum was not in place. The Council will apologise, refund costs and make service improvements.

The complaint

1. Ms X complains the Council failed to advise her it could pay for tutoring for her son, whom I shall refer to as Y, when he was unable to attend school due to ill health in 2019. Ms X says the Council was unable to find a place in a specialist school and no alternative education was offered so she had to pay for tutors to educate Y. Ms X says this caused her anxiety about how to fund Y’s education until a school was found. Ms X also complains the Council delayed in finalising an Education, Health and Care (EHC) Plan for Y.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal or the matter can be separated from the appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
5. 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

6. I have considered information provided by Ms X, the Council, and a hospital where Y was an in-patient.
7. I have considered relevant law and guidance:
• Children and Families Act 2014
• Education Act 1996
• Statutory Guidance: 'Ensuring a good education for children who cannot attend school because of health needs'.
• Statutory Guidance: ‘Children Missing Education’.
• Ombudsman’s Focus Report: ‘Out of School…out of mind? How councils can do more to give children out of school a good education’.
• Ombudsman’s Guidance on Remedies.
8. I have considered the Council’s policies on:
• Elective Home Education (EHE)
• Personal Education Budgets.
9. 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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What I found

Relevant law and guidance

Elective home education

10. Parents have the right to educate their children at home (s.7 Education Act 1996). Elective home education (EHE) is distinct from education otherwise than at school (EOTAS) provided by a Council, for example when a child is too ill to attend.
11. In choosing to home educate parents take on the financial responsibility for any costs involved including any related to special educational needs (SEN).
12. Councils have a power, but not a legal duty, to provide support to home educated children with SEN. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.

Alternative education provision

13. 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). This is sometimes referred to as ‘s.19 education’.
14. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any SEN he may have.
15. 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, 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’)

Children Missing from Education

16. Councils have a duty under 436A Education Act 1996 to make arrangements to establish the identity of children in their area who are not registered pupils at a school and are not receiving suitable education otherwise. Councils must have effective tracking and enquiry systems in place including appointing a nominated person to whom schools and other agencies can make referrals about children who are missing education. Councils should have in place arrangements for information sharing with other agencies and hold regular reviews of cases.

Education, Health and Care (EHC) plans

17. Councils must consult parents or the young person:
• when they receive a request for an EHC needs assessment under s.61 Children and Families Act 2014 or,
• when they become responsible for a child or young person under s.24 of the 2014 Act.
18. A Council ‘becomes responsible’ for a child when they are identified as someone who has or may have SEN or are brought to the Council’s attention as someone who has or may have SEN.
19. When a Council receives a request for assessment or otherwise ‘becomes responsible’ for the child it must decide whether to carry out an EHC needs assessment within six weeks.

20. If a council decides after an assessment to issue an EHC plan, the final Plan must be issued within twenty weeks of the date the request was received, or the date the Council ‘became responsible’ for the child.

21. An EHC plan 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 education or name a different school. Only the tribunal can do this.

22. Where there is an appeal to the SEND Tribunal about a decision, the Court has decided the decision, and the consequences of it, are matters which are ‘inextricably linked’ (R (on the application of ER) v the Commissioner for Local Administration, 2014) The Ombudsman cannot investigate either the decision subject to the appeal or the consequences arising from the decision.  This means we may not be able to consider complaints about a failure to provide alternative education during the period of an appeal if we are satisfied that the reason the child was not attending school resulted from the dispute the Tribunal was asked to consider. We can investigate where we are satisfied the absence from education can be separated from the appeal, for example when a child is medically unfit to attend any placement.

Personal budgets

23. An education personal budget is an amount of money identified to support a young person meet their identified needs and outcomes in an EHC plan. Parents can ask for a personal budget when they receive the draft plan or during a review of the EHC plan.

Chronology of events

24. Y was electively home educated (EHE) from 2017 until he started to attend a specialist school in March 2018. He attended this school for only a few weeks.
25. In April 2018 Y was referred to a children’s hospital and a case was opened to social care. In June 2018 the Council obtained telephone medical advice Y was unfit to attend a school but may be suitable for home tuition. The Council requested reports from Children and Adolescent Mental Health Services (CAMHS) and the Children’s hospital team. The Council organised a referral to an alternative provision college for blended learning at home. This would have been provided under s.19 Education Act.
26. Before blended learning could be arranged, Y was admitted to hospital where he remained for several months. While an in-patient he was assessed as having additional conditions that can affect learning.
27. Council records show Y’s case was open to the officer responsible for Children Missing from Education (CME) and the Education Welfare Officer (EWO)
28. Y started attending the hospital school in September 2018.
29. A Council officer spoke to Ms X in October 2018. Ms X advised Y was likely to be an in-patient until at least January 2019 and in the meantime was to have an Education, Health and Care (EHC) Plan put in place around his learning difficulties and mental health. It was noted Ms X would keep in touch about when Y was likely to be discharged. The Council officer noted they would need to liaise with the Fair Access and SEN team.
30. It is unclear who advised Ms X that Y would need an EHC plan, as the EHC needs assessment did not start in October. I assume this was hospital staff.
31. The CME case log shows the Council was in contact with hospital staff in December 2018. The hospital consultant advised by telephone that Y would be unable to return to mainstream school, but home education was also (in the consultant’s view) not appropriate. The consultant wanted to discuss ‘putting an EHC plan in place and options around educational provision’. A Council officer noted this was passed to Fair Access to ‘see if they would be able to liaise’.
32. On 4 January 2019 the case was allocated to a SEN officer. The SEN team treated the matter as a parental request for an EHC needs assessment, not a request from health professionals. An EHC assessment should take twenty weeks from the date a request was received, but the Council did not ‘start the clock’ until Ms X completed a request form in February 2019.
33. In late February, the CME officer spoke to Ms X and noted Y was still an in-patient but awaiting a discharge date. The officer informed Ms X the SEN team required medical evidence to support the EHC needs assessment and Ms X agreed to follow this up with the consultant. The hospital had recommended a residential school, but this was currently full. The CME officer noted ‘Mum needs to organise interim provision – looking at EHE using tutors…to refer to EHE and track into provision'.
34. A few days after this call a multi-agency review meeting was held. The Council did not attend. Y was working towards a discharge date in April. Recommendations from this meeting included that:
• The application for an EHC plan was underway with advice submitted
• Following the outcome of the EHC panel ‘Ms X will look into local school options’.
• Y would spend increasing time at home prior to discharge date and when at home have a structured timetable which should include education and activities with same-aged peers.
• From March 2019, Y would be on the ward two days and have tutoring two days, Ms X should look for activities and educational provision with the help of Y’s case coordinator / Consultant Psychotherapist and local mental health team.
35. In mid-March the CME officer noted Y was spending more time at home with tutoring starting to be put in place ‘3 sessions of science, 3 sessions English, 2 sessions maths – Mum also looking into…computer programming tutoring…Mum looking into social groups…Mum visiting…School on Thursday…CME case closed…to refer to EHE’.
36. Council records show the case was then referred to the EHE team via email stating Y was an inpatient but due to be discharged in April and ‘receiving EHE tutoring – awaiting EHC assessment and Mum looking to get into SEN school however EHE whilst investigating possibilities through tutoring and other activities’.
37. The CME notes do not refer to any discussion about whether Ms X was content to EHE or pay for tutors. There are no records showing the Council explained it could fund tuition under s.19 Education Act.
38. The EHE officer then contacted Ms X saying they understood Y was being home educated and Ms X may need advice and support. A visit was offered, which Ms X agreed to although it is noted she felt there might not be any benefit to a visit. Ms X was noted to be looking for tutors for more subjects. A further visit from the EHE officer took place in the Autumn. The EHE visit notes do not refer to any discussion about whether Ms X was content to pay for tutors.
39. Y’s discharge summary dated April 2019 said a post discharge meeting was to be arranged with Consultant Psychotherapist, Ward Manager and the home-schooling team. The summary stated Y ‘is to have home tuition until an appropriate specialist school has been found (ideally Y will start school from September 2019)’. The Hospital social worker would liaise with the home-schooling team ‘and other appropriate educational services to support Y’s current home tuition’.
40. A meeting was held in early May 2019 attended by a Council officer and advisory teacher. The Council has been unable to produce any records for this meeting. Ms X told me she explained at this meeting that she had visited several specialist schools but had not yet found one that considered it could meet Y’s needs. Ms X told me she explained the tuition she had put in place and expressed the view this was not comprehensive enough but was all she could afford. Ms X says a Council officer told her no funding would be available for home tuition from the Council. Ms X says she told the Council officer that due to the hospital’s advice that Y must have a structured timetable she felt she had no choice but to fund tutors for Y herself.
41. Ms X said the hospital had made it clear that Y needed a full timetable which included education and activities with peers immediately on transitioning home from hospital. ‘No support was offered therefore I believed I had no alternative but to finance Y’s education myself…at no time did the Local Authority offer to put EOTAS in place and EOTAS was something I was unaware of at this time. I was misled into believing that support at school was the only support the LA could offer’. Ms X told me when hospital staff found out about the Council’s refusal to provide funding, it offered for Y to remain in hospital to attend the hospital school. Ms X said she had to decline this offer as she knew it was not in Y’s best interests to delay his discharge.
42. The Council’s SEN team told me it received the EHC request in February, a report from the hospital in March and the discharge summary in April. It decided to assess in March and requested necessary professional advice. Ms X told the Council she had other reports and the Council invited her to share these. The Council says it received the advice from professionals by May, but Ms X did not provide evidence she had previously mentioned. The Council issued a draft EHC plan in May and a final plan in June. The Council says this was within twenty weeks of Ms X’s request in February.
43. Educational psychology advice stated Y required a small and calm educational environment and would require a carefully planned transition into school.
44. Ms X told me when she received the draft EHC plan she asked the Council what the section for ‘personal budget’ was for. Ms X says the Council told her a personal budget could only be considered if there were no schools that could meet Y’s needs. Ms X appealed the final EHC plan to the SEND Tribunal requesting EOTAS (home tuition) via a personal budget. Ms X also considered the Plan did not adequately describe Y’s needs and further reports were required.
45. The Council consulted placements in September. In December 2019 the Council conceded the appeal and agreed to provide Y with EOTAS via a personal education budget.
46. In April 2020 Ms X complained to the Council about failing to put EOTAS in place when Y was discharged from hospital and asking for private tuition costs to be refunded. Ms X says she always made it clear to Council officers she was not home educating voluntarily but was told the Council would not pay for tutors or provide funding outside of a school.
47. Ms X said that Y missed out on education because she could not afford tutors for the full curriculum. Ms X also incurred significant costs.
48. The Council’s complaint responses said:
• It had no financial responsibility for Y’s education before the final EHC plan was issued.
• Its records confirmed Y was electively home educated from mid-March 2019 and there is no statutory obligation to fund tuition when a parent has chosen to make their own arrangements.
• There is no obligation to fund EOTAS without an EHC plan being in place and when a parent has elected to home educate.
• It had funded EOTAS from the date this was agreed via a consent order and a personal budget was then put in place. The Council was unable to fund provision that was not in a final plan.

Analysis

49. The Council was aware of Y’s admission to hospital in 2018. Prior to this it referred Y for blended learning under s.19 Education Act. From September 2018, Y received s.19 education via the hospital school.
50. The Council was aware from October 2018 that Ms X believed an EHC plan was required. In December 2018 it was also aware the Consultant’s view was that Y would require an EHC plan as he may need specialist schooling. I find the Council ‘became responsible’ for Y under s.24 Children and Families Act 2014 no later than December 2018. It should then have decided whether to assess Y within six weeks. It failed to do so, this is fault and caused delay.
51. The Council decided to assess only when Ms X completed a parental request form in February 2019, although it had known she wanted an EHC plan since October and an SEN officer had been allocated in early January. The Council issued a final plan twenty weeks after it received Ms X’s form.
52. We cannot consider whether the Plan adequately described Y’s needs. Ms X appealed to the Tribunal about this matter which is the appropriate forum to resolve a dispute about the content of an EHC plan.
53. It is clear from the Council’s records it expected to be involved in planning education on Y’s discharge from hospital, but it did not attend any of the meetings about this.
54. There is no dispute that Y was medically unfit to attend school when he was discharged from hospital. He was therefore eligible for s.19 education.
55. The Council says it did not need to offer s.19 education when a parent had made their own arrangements. I find that Ms X did not make home tuition arrangements voluntarily, but because she believed her son was not entitled to support from the Council. The Council did nothing to correct that misunderstanding. This was fault.
56. There was a telephone call where a Council officer has recorded ‘Mum needs to organise interim provision’. This was inaccurate. There was no ‘need’ for Ms X to arrange provision when the Council had a legal duty to do so under s.19. This was a missed opportunity to advise Ms X of her options. Ms X was then treated as electively home educating despite hospital documents indicating support with education at home was required.
57. Ms X had subsequent discussions with several officers but there is no evidence any officer explained to Ms X the Council could fund s.19 education when a child is unfit to attend school or are without a school place. This was fault. This information was also not publicly available, for example on the Council’s website. The Council’s EHE policy refers to the financial responsibilities of opting to home educate but provides no advice about the alternative option of EOTAS / s.19 education.
58. We expect councils to be open and transparent with members of the public and where there is a benefit available to someone, to make that known to them. Councils should not restrict a benefit or service only to those members of the public who are knowledgeable enough about the law to know to ask for it.
59. I find Ms X was not provided with information to make an informed decision about whether she wished to ‘electively’ home educate. Ms X did not know that home tuition funded by the Council was a possibility. Ms X was clearly not happy to take on the financial responsibility for Y’s education, because if she was, then she would not now be bringing a complaint asking for her costs to be refunded.
60. Ms X says she did ask for funding and was advised this was not available. As there are no records of the meeting in May 2019 with Council officers, it is not possible to confirm Ms X’s account of the advice she says she received. Ms X says she also asked the EHE officer but again this is not recorded. If advice was given that councils cannot fund home tuition, this was fault.
61. Ms X was not home educating in a typical way which usually involves a parent teaching their child themselves. Ms X was very obviously employing tutors at significant personal cost to teach Y. I find it was fault for the Council not to have explained to Ms X that she did not have to take on financial responsibility for Y’s education herself and that the Council could fund home tuition.
62. The Council’s complaint response said the Council had no financial responsibility prior to the issue of the EHC plan and can only fund EOTAS in a final EHC plan. This is incorrect, councils will have responsibility for children with and without EHC plans where s.19 Education Act applies. Y will have received his hospital school education under s.19 before his EHC plan was issued.
63. The Council’s policy on personal budgets says when it refuses a budget it will provide a written decision giving reasons and parents can ask for a review of the decision. The Council did not provide a written decision with reasons or offer a review. It failed to follow its own policy. This is fault.
64. I find that on the balance of probabilities if Ms X had known in Spring 2019 the Council could take on the financial responsibility of funding home tuition, she would not have chosen to fund tutors herself. Ms X’s concerns about having to fund these costs, her request for a personal budget (once she became aware of this option), this complaint and her appeal for EOTAS support this view.
65. I also find that on the balance of probabilities if the EHC assessment had started by December 2018, not February 2019, the agreement of a personal budget would have been reached by September 2019, not December 2019.
66. But for the fault identified, Ms X would have avoided the financial burden of Y’s education between March and December 2019 and the worry about how to find money to fund Y’s education. Y’s curriculum would not been restricted by what Ms X could afford to pay.

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Agreed action

Within four weeks of my final decision

67. The Council will apologise to Ms X and Y for the fault identified in this decision statement.
68. The Council will refund Ms X tuition costs of £14,752.33.
69. The Council will pay Y £500 for the education he lost out on that was not covered by home tutors, and the distress and uncertainty caused.
70. The Council will pay Ms X £250 to acknowledge the time, trouble, distress, and uncertainty caused.

Within twelve weeks of my final decision

71. The Council will ensure officers in all relevant departments are aware of the Council’s duties under s.19 Education Act.
72. The Council should consider whether it needs to amend its EHE policy or other advice to parents to make them aware of when a Council may be financially responsible for funding alternative education / home education. Many councils have a policy specifically for children with health needs which sets out these duties.
73. The Council should consider what steps it can take to ensure parents are suitably advised in future and how it will record the advice given.
74. The Council should ensure officers understand the law about personal education budgets and follow the Council’s policy to provide written decision with reasons and offer a review.
75. The Council should ensure SEND officers are aware that a decision whether to carry out an EHC assessment can be triggered either by receipt of a request, or by a child coming to the Council’s attention, for example via health professionals.
76. The Council should advise the Ombudsman of the steps it has taken to comply with the above recommendations.

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Final decision

77. I have completed my investigation. The Council failed to advise a parent it could provide alternative education at home when a child had no suitable education available to them in a school. This led to the parent being forced to make their own private tuition arrangements and incur high costs. This caused distress and the child missed out on education because a full curriculum was not in place. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman