Summary: Miss X complained the Council failed to provide suitable full time alternative education for her son from October 2023. In response to Miss X’s complaints about this the Council accepted fault and that it did not do enough to ensure a suitable education was provided. A suitable remedy is agreed to acknowledge this loss of education provision.

The complaint

1. Miss X complains the Council failed to provide suitable full time alternative education since anxiety prevented her son from attending school in October 2023.
2. Miss X says the lack of education for her son has caused distress and significantly impacted the whole family.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

EHC Plan 

7. 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 the council can do this. 

Inability to attend due to health needs

8. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
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. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says that if specific medical evidence, such as that provided by a medical consultant, is not quickly available, councils should “consider liaising with other medical professionals, such as the child’s GP, and consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.
11. The statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”.
12. 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))
13. 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)
14. 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’)

Key facts

15. This section sets out the key events in this case and is not intended to be a detailed chronology.
16. Miss X’s son, B, has an EHC Plan. An annual review took place in 2023 and the Council issued a final amended EHC Plan in July 2023. Miss X says she was satisfied with the provision and institution named in the EHC Plan and so had no reason to use her right of appeal.
17. B began the new school year in September 2023. However, his anxiety increased and by 3 October 2023 he stopped attending. Miss X made a formal complaint to the Council. It replied on 29 December saying that as the named school was in receipt of funding to support B’s special educational needs that it should be providing an education for him at home. It says that this is the way the Council meets it section 19 duty under the Education Act 1996. It said that as B remained on the school’s roll, it was not under a duty to provide an education to him.
18. The letter also responded to Miss X’s request for an EOTAS (education other than at school) package explaining what evidence would be needed. It said it would fully consider the request for an EOTAS packing when further medical evidence is provided.
19. Miss X says that online tuition was provided for B from 31 January 2024. This consisted of one hour of maths and one hour of English per week. Miss X did not consider this was enough and so continued to correspond with the Council. From 11 March 2024, the online provision increased to four hours per week.
20. A further complaint response from the Council dated 2 February 2024 accepted B should have been provided with educational support earlier than he was. It said while this is a responsibility of his school, it should have ensured the school understood what was expected.
21. The Council also wrote to Miss X on 2 April 2024 in a letter titled “Stage 2 Response” making the following points:
• Accepting that B did not receive a suitable education when not in school
• The primary responsibility for providing a suitable education rests with the school but that it could have done more to resolve the position with the school and explain it to Miss X
• The high bar to cross to warrant B receiving EOTAS, had been crossed
• One hour per week of Maths and English does not represent a suitable level of education
• It hoped an appropriate EOTAS package can support B to make progress towards his outcomes and learning in general.
22. An EOTAS package has now been agreed. From 3 June 2024, a different online provider is working with B and he started to receive six hours of tuition per week.

Analysis

23. Miss X complains about the lack of alternative provision for B from 3 October 2023 when he stopped attending school. The Council, in response to complaints made by Miss X, has accepted a suitable full time education has not been provided to B since 3 October 2023. This is fault.
24. The Council has stated throughout that the school is responsible for providing the alternative education. While the Council can delegate this requirement to the school, the statutory duty remains with the Council. It may be that this is what it meant when it says the school should have provided the alternative education. However, it has also accepted it did not do enough to ensure the school was making suitable full time alternative education provision for B. This is fault.
25. The Ombudsman welcomes the Council’s acceptance of fault when responding to Miss X’s complaint. It is also noted that an EOTAS package has now been agreed and has started. The Council has not provided any remedy for the lack of suitable full-time education from 3 October 2023 to 3 June 2024 and so I will make a recommendation.
26. The Ombudsman publishes a document setting out our role in remedying and preventing future injustice. It states that where fault has resulted in a loss of education provision we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. In reaching a view on the suitable amount in this case I have taken account of B’s special educational needs and the amount of alternative provision actually provided.

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Agreed action

27. To remedy the injustice caused as a result of the fault identified above, the Council will, within one month of my final decision, take the following action:
• Make a symbolic payment of £300 to recognise the distress and time and trouble experienced by Miss X in pursuing this complaint;
• Make a payment of £4,000 to be used for the benefit of B, to recognise the loss of education provision for the equivalent of two terms at a rate of £2,000 per term; and
• Issue a reminder to staff that the statutory duty to provide suitable alternative educational provision under Section 19 remains with the Council
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman