Summary: Miss X complained that the Council failed to provide education to her son while he was out of school. We have found that the Council was at fault, because it failed to deliver home tuition to Miss X’s son for at least part of 2023. This meant he lost education, and he and Miss X likely suffered distress. The Council has agreed to make symbolic payments to recognise their injustice, and it will take steps to improve its service.

The complaint

1. Miss X complains that her son, Y, has been out of school since 2021 and, since September 2022, the Council has failed to deliver alternative education to him. She says this includes a failure to deliver home tuition after agreeing to do so.
2. Miss X also complains that the Council failed to deliver Y’s special educational needs support. This included a significant delay in providing her with the funds to arrange his support herself.
3. Miss X says this has caused distress to her and Y. She also says Y lost education, and she spent a lot of time dealing with the Council’s failings. She wants compensation, and for the Council to improve its service.

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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 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)
5. 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)
6. 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

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

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What I found

The Council’s responsibilities

Alternative educational provision

9. Councils must arrange suitable education for children who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Education Act 1996, section 19). We refer to this as ‘alternative provision’.
10. It is up to a council to decide whether a child’s health needs prevent them from attending school, and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
11. When a council arranges alternative education, this should begin as soon as possible, and no later than the sixth day of the child’s absence. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
12. We have issued guidance on how we expect councils to fulfil their responsibilities to provide alternative provision. (‘Out of school, out of sight?’ published July 2022)
13. We recommend that councils:
• Consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions.
• Work with parents and schools to draw up plans to reintegrate children into education as soon as possible, reviewing and amending plans as necessary.
• Put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

The SEND code of practice

14. A child with special educational needs may have an education, health and care (EHC) plan. This document sets out their needs and what arrangements should be made to meet them.
15. The EHC plan is set out in sections, including section F (the provision needed by the child).
16. Councils have a duty to make sure children receive the provision set out in section F of their EHC plans. This provision should be in place as soon as the final EHC plan is issued.
17. A personal budget is the amount of money needed to secure a child’s section F provision. This can be made in cash payments made to the child’s parent so they can arrange the provision themselves.

What happened

18. In 2020, Y’s father passed away. Miss X says this began to affect his school attendance. She says the Council’s attendance officer provided some support.
19. In September 2022, a meeting was held to plan Y’s return to school. Miss X attended, along with the Council’s attendance officer and an educational psychologist.
20. At that point, Y was not attending school (or receiving any education) at all. The meeting decided on a plan to reintegrate Y into school. The record of the meeting does not mention whether he should receive alternative education during the period of reintegration.
21. The Council says it reviewed this reintegration plan, although I have seen no evidence of any reviews.
22. In December, the Council’s attendance officer told Miss X (by text message) that she would look into alternative education for Y. But this did not happen.
23. In February 2023, the Council’s educational psychologist recorded that, despite the work the Council had done to try and reintegrate Y into school, he continued not to attend at all. The psychologist said:

It is highly likely, given his presentation of anxiety, and the role that avoidance plays in helping him to cope with difficult emotions, that without bespoke support (i.e. tuition offered initially in the home, and eventually in the community), that [Y] will not be able to attend school.

24. No home tuition was delivered. Miss X says the Council told her, in May, that this was because of a lack of availability (although I have not seen evidence of this exchange).
25. In July, the Council issued an EHC plan for Y. This did not name his existing school, because it had told the Council that it could not meet his needs. Instead, the plan set out provision to build Y back up to the point he could attend school again. This included home tuition.
26. Miss X requested direct payments in August, but the Council refused her request “as it did not link to the outcomes and provision in [Y’s] EHC Plan”.
27. In November, after Miss X made a complaint to the Council (and at which point Y was still yet to receive any tuition), the Council agreed to Y receiving ‘education otherwise than at school’ (EOTAS). This meant he did not need to return to school.
28. The Council also agreed to make direct payments to Miss X. It finalised the direct payment agreement in December, and Miss X says she received the first payment in January 2024. At that point, she became responsible for arranging Y’s education.
29. The Council continues to make direct payments to Miss X. It last reviewed these, with Miss X’s agreement, in August 2024.

My findings

Alternative provision

30. From September 2022, the Council was aware that Y was not attending school. It held at least one meeting to plan his reintegration into school, and has referred to others, although I have seen no evidence of them.
31. The evidence I have seen demonstrates that the Council was well aware of Y’s anxiety and its impact on his school attendance. The reintegration plan the Council put in place, while ultimately unsuccessful, was not unreasonable in the circumstances. I am in no doubt that the Council took steps to try and get Y back into education.
32. However, the law says councils must arrange education for children who are out of school (if they would not receive an education without such arrangements).
33. The Council knew Y was out of school, and that this was related to his mental health. Although it tried to get him back into school in September 2022, it did not consider whether he also needed alternative provision while the reintegration plan was in place.
34. The first reference I have seen to alternative provision came over two months later, when the Council’s attendance officer said she would arrange some for Y. But this did not happen.
35. Two further months after that, the Council’s educational psychologist informed the Council that Y would probably not be able to go back to school unless some home tuition was offered first. But still, no alternative provision was delivered for the rest of the school year. And I have seen no good explanation why this did not happen.
36. This was fault by the Council, which should have considered delivering alternative provision as soon as it knew Y was likely to be out of school for an extended period.
37. I cannot easily measure how much education Y missed because of the lack of alternative provision. I cannot decide either the level of provision which may have been available to him or the degree to which he would have been able to engage with it. Certainly, the Council’s records suggest that he subsequently struggled to engage.
38. But Miss X says both she and Y suffered some distress from the lack of alternative provision, and I consider this likely. It must have been a stressful time for both of them, and, because of the Council’s lack of exploration of alternative education, it is not possible to now say exactly how much education Y missed during the 2022/23 academic year.
39. The Council should now provide symbolic financial remedies to Miss X and Y which recognise their injustice.

Section F provision

40. From the point that Y’s home tuition, reintegration plan and other support was enshrined in his EHC plan in July 2023, this became special educational provision which the Council had a duty to deliver.
41. Y should have started receiving this provision from the date of the plan. As this was right at the end of the school year, it would have been reasonable for this to start in September 2023.
42. Miss X says no tuition was delivered to Y until she became responsible for arranging it in January 2024. And there is no evidence to suggest otherwise.
43. This means the Council was responsible for the non-delivery of Y’s section F provision for a full school term.
44. This was fault by the Council. And, as the education which Y should have received was set out clearly in his EHC plan, I am satisfied that he suffered a loss of education, which caused him a significant injustice.
45. The Council should provide a further financial remedy to Y which recognises this loss.

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Action

46. Within a month, the Council has agreed to make the following symbolic payments:
• £2,000 to Miss X, on Y’s behalf, to recognise that he lost education because of its failure to deliver the provision in his EHC plan for a full school term.
• A further £1,000 to Miss X, on Y’s behalf, to recognise that its failure to consider delivering alternative educational provision to him in 2022 and 2023 likely caused him distress.
• £500 to Miss X to recognise that these matters likely caused her distress as well.
47. Within two months, the Council has agreed to send us a plan which sets out what it intends to do to overcome similar difficulties securing home tuition for other children in future.
48. The Council will provide us with evidence it has done these things.

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Decision

49. The Council was at fault, and this caused injustice to Miss X and Y, which the Council will now take action to address.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman