Summary: Mr X complained that the Council failed to provide his son with a full-time education when he was unable to attend school, and failed to provide the provision set out in his son’s Education, Health and Care plan. Mr X said this meant his son lost out on education he should have received and it caused unnecessary distress. Largely we do not find the Council at fault. However, we find the Council at fault for failing to tell Mr X when and how his son’s alternative provision would increase. This caused uncertainty. The Council has agreed to apologise to Mr X and his son to remedy this injustice.

The complaint

1. The complainant, who I refer to here as Mr X, complained that the Council failed to provide his son with a full-time education when he was unable to attend school. He also complained that the Council failed to provide the provision set out in his son’s Education, Health and Care plan.
2. Mr X said this meant his son lost out on education he should have received. He felt the Council did not listen to him or his son. He said it caused unnecessary distress.

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What I have and have not investigated

3. As I set out below, we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done.
4. Mr X told me that his son stopped attending school in September 2020. However, he did not bring his complaint to us until June 2022. He said the reason he did not bring his complaint to us earlier was because the school was providing his son with work to do at home. Mr X also said he was appealing another Council decision so “had other work to prioritise than making a complaint” to the Council. He said he is mainly complaining about lack of alternative educational provision from February 2022 onwards.
5. In this case, I have decided there are no good reasons to exercise the Ombudsman’s discretion and look back any further than June 2021. And given that Mr X told me his complaint is mostly about alternative educational provision from February 2022 onwards, this has been the focus of my investigation.

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The Ombudsman’s role and powers

6. 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)
7. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
8. 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)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care plan.
11. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
12. 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

13. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
14. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

Alternative educational provision for children out of school

15. 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.
16. In 2013, the government published statutory guidance for councils: ‘Ensuring a good education for children who cannot attend school because of health needs’. This relates to a council’s duties under section 19 of the Education Act 1996.
17. This guidance says that there will be a range of circumstances where a child with health needs may receive a suitable education that meets their needs without the council having to intervene. An example of this would be where a child can attend school with some support, or where the school has made arrangements to deliver suitable education outside the school, or where arrangements have been made for the child to receive an education in a hospital.
18. The guidance says councils are not expected to get involved in those situations unless it had reason to believe the education provided to the child was not suitable or, where otherwise suitable, was not full-time or for the number of hours that child could benefit from without adversely affecting their health.
19. The guidance says councils must arrange suitable full-time education, or as much as the child’s health condition allows, for children who would otherwise not receive a suitable education because of their illness.
20. The Courts have said it is for the council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.

Education, Health and Care plans

21. Education, Health and Care (EHC) plans set out the special educational provision required to meet a child’s special educational needs. Councils have a legal duty to provide the special educational provision specified in the EHC plan. Councils cannot delegate this duty to a school or other body. If a school’s resources, either financial or expertise, cannot make the provision outlined in the plan, the council must provide it.

What happened

22. Mr X’s son, B, has special educational needs and an Education, Health and Care (EHC) plan. He had been attending a mainstream school but stopped attending the School in person in September 2020 because he was not able to cope. The School provided work for B to complete at home.
23. In January 2022, the Council issued B’s EHC plan. The EHC plan said B was still on roll at the School but was not attending. It noted that B had been managing his schoolwork well at home.
24. The EHC plan said the School would commission alternative educational provision (which I will refer to as ‘alternative provision’). This was to help B reintegrate into education. The plan said the School would provide regular mentoring, and would carefully plan a transition into a supportive, predictable smaller-scale learning setting.
25. The School arranged alternative provision for B with an external provider (who I refer to as ‘the Provider’). The School agreed with Mr X and the Council that the alternative provision would start at four hours per week and would gradually increase to 15 hours per week. The alternative provision began in February 2022.
26. In June, Mr X complained to the Council. He wanted full-time alternative provision.
27. In its complaint responses, the Council acknowledged that the alternative provision commissioned by the School was not full-time. It said at the annual review in June, the Provider said they were not able to provide B with 15 hours per week. This was because of capacity issues but also because B preferred only to work with one specific worker, and did not want to attend the Provider’s centre in person. The Council said the hours of alternative provision would increase in September.
28. Mr X then brought his complaint to the Ombudsman.

Analysis

Alternative educational provision

29. Mr X complains that the Council failed to provide his son with a full-time education when he was unable to attend school. Mr X does not believe B would have been capable of receiving a full-time education through alternative provision. But he believes B would have been capable of completing the full 15 hours per week. Mr X says B did not receive the full 15 hours per week of alternative provision.
30. I find that all parties agreed that B could not have coped with full-time educational provision. So, I have investigated what alternative provision B received from February 2022.
31. The alternative provision started at four hours per week, as agreed by all parties. The Council says it expected B’s hours to gradually increase after spring half term (February 2022) and increase to 15 hours per week by the beginning of summer term (April 2022).
32. I have seen a breakdown of how many hours of alternative provision B received from February 2022 until October 2022. I find that, on the whole, there was an increase in weekly hours of alternative provision. However, out of those 26 weeks, B received four hours of alternative provision for 11 of those weeks, and some of these weeks were at the end of the summer term.
33. The Council says the School offered 15 hours per week, but B was not always able to engage in the full amount of hours. I have seen an email from the Provider to the Council and the School dated October 2022 which indicates that B was sometimes not able to take advantage of all the provision on offer, and sometimes his parents cancelled sessions with little notice.
34. Without seeing evidence of exactly how much alternative provision was offered, and what B was capable of taking advantage of, in any particular week, I cannot find that B missed out on a certain amount of hours of alternative provision. I also cannot find that B missed out on any provision that he would have been able to engage with.
35. The guidance says councils are not expected to get involved in a situation where the school has made arrangements to deliver suitable education outside the school. However, councils are expected to get involved if they have reason to believe the education provided to the child was not suitable or, where otherwise suitable, was not full-time or for the number of hours that child could benefit from without adversely affecting their health.
36. The School provided B’s alternative provision by commissioning provision from the Provider. The Council believed that what the Provider offered B was suitable to meet his needs. I have seen no evidence that persuades me the Council was wrong to believe this.
37. The Council was satisfied that the alternative provision, including the number of hours per week, was suitable to meet B’s needs. Therefore, I do not find the Council at fault for the alternative provision provided by the School. In these circumstances, we would not expect a council to have stepped in and provided a different alternative provision.
38. Mr X accepts that he agreed with the School’s decision that it would be best for B to start with four hours of alternative provision per week, and gradually increase to 15 hours per week. But he says the Council did not tell him when or how these hours would increase.
39. The Council told the Ombudsman it expected B’s hours of alternative provision to increase in February and April 2022, at certain points in the school year. I have seen no evidence that the Council told Mr X this at any point.
40. I find this lack of clear communication is fault. I find it caused Mr X and B injustice because it caused uncertainty.

Education, Health and Care plan provision

41. Mr X complains that the Council failed to provide the provision set out in his son’s Education, Health and Care (EHC) plan. Mr X says the Council is not providing the right amount of hours of provision, because B is not receiving the full 15 hours per week of alternative provision.
42. I have addressed the amount of alternative provision above, so I will not repeat my findings here. However, I have considered whether the Council provided the special educational provision specified in B’s EHC plan.
43. As I have set out above, B’s EHC plan said the School would: commission alternative educational provision; provide regular mentoring; and, would carefully plan a transition into a supportive, predictable smaller-scale learning setting.
44. All of this provision was to be provided by the School. I have considered the alternative educational provision in place, and I find it was in line with B’s EHC plan. I have not found any provision set out in the EHC plan that B did not receive. Also, the EHC plan does not set out a specific number of hours of provision that B should receive.
45. Mr X complains that the Council agreed to put an additional ten hours of mentoring in place for B in September 2022.
46. I have seen evidence which indicates that Mr X asked the Council in either September or October 2022 to put a hold on these additional ten hours of mentoring. This was because Mr X said B would not be able to cope with those ten hours on top of his 15 hours of alternative provision per week.
47. I cannot find the Council at fault for not putting additional provision in place when Mr X requested that it was put on hold.
48. For these reasons, I do not find the Council at fault.

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Agreed action

49. Within four weeks of this decision, the Council has agreed to apologise to Mr X and B in writing for the uncertainty caused by failing to tell Mr X when and how it planned to increase B’s hours of alternative provision.
50. In arriving at this recommendation, I have considered the Ombudsman’s published Guidance on Remedies. I consider an apology is a suitable remedy for the level of injustice caused.
51. The Council should provide us with evidence it has complied with the above action.

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Final decision

52. I have completed my investigation. Largely I do not uphold Mr X’s complaint. However, I find the Council at fault for failing to tell Mr X its expected plan to increase his son’s hours of alternative educational provision. This caused injustice. The Council has agreed to apologise.

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Investigator's decision on behalf of the Ombudsman