Summary: Ms A complained that the Council did not do enough to ensure her child had appropriate alternative education when he was unable to attend school. We found the Council is not at fault.

The complaint

1. Ms A complains her son, X, was not in full-time education from September 2023 until September 2024, and the Council did not do enough to provide alternative education provision.
2. Ms A says this has caused her and her family avoidable distress and impacted their mental health.

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The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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)
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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What I have and have not investigated

7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. I have not investigated the suitability of the named educational setting in X’s EHC plan, as this is appealable to the Tribunal.
8. I have investigated from September 2023, when X did not attend school up to July 2024, when Ms A contacted this office.

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How I considered this complaint

9. I considered evidence provided by Ms A and the Council as well as relevant law, policy and guidance.
10. Ms A and the Council have had an opportunity to comment on my draft decision. I have considered all comments received before making this final decision.

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What I found

Law and guidance

11. 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.
12. 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). We refer to this as section 19 or alternative education provision.
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
14. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
15. 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.
16. 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)
17. 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’)

What happened

18. Ms A’s son, X, is a child with special educational needs, and has an EHC plan in place. X was attending primary school on a part time timetable due to his needs.
19. When X moved from primary school to secondary education in September 2023, his EHC plan named a mainstream school as his educational setting.
20. Ms A informed the Council X was not attending the school in September 2023.
21. The Council accepted the educational provision was not accessible to X. It carried out an assessment, arranged tuition at home and contacted alternative educational providers X might have accessed further support from.
22. The alternative providers considered X’s EHC plan and confirmed they could not meet his needs.
23. The Council commissioned nine hours of tuition, however, the tutors intended to begin with five hours, working up to nine gradually. The five hours provision was not always provided in full because of changes in tutor and illness.
24. During this time, the Council contacted specialist schools and a mainstream school with a special educational needs unit, but none were suitable and available for X then.
25. In March 2024, the tutors withdrew their services as they said their relationship with Ms A had broken down.
26. The Council assessed X again and commissioned tuition, and a placement for two days a week at a farm, which had been sourced by Ms A.
27. The Council arranged an alternate tuition company which assessed X in April and began sessions in May 2024.
28. In July 2024, the Council confirmed a place had become available at a specialist school from September 2024. X has attended that school since.
29. Ms A is unhappy with the provision provided by the Council while X was out of school and complained it did not provide the provision she requested.

Analysis and findings

30. I have seen the Council promptly accepted its section 19 duty when X did not attend the named school in September 2023.
31. It put in place some tuition and looked into alternative therapeutic provisions also. It was agreed between the alternative provision providers and Ms A that those sessions were not suitable for X’s needs.
32. The tuition which was commissioned by the Council did not amount to full time education. However, X was not in full time education in his previous placement. One on one tuition also amounts to a greater amount of time than in school where the providers’ attention is shared between the class.
33. Given the Council intended to increase the provision based on how X managed, its initial provision is suitable in the circumstances.
34. I have seen the Council continued to look for a placement at a specialist school, so it is clear that it was hopeful the alternative provision was temporary.
35. I have seen X’s tuition was disrupted due to the need to change to a different provider, but the Council acted promptly to put another provider in place.
36. The Council also took a proactive approach by approving a placement which was not one of its usual providers by paying for this through direct payments.
37. While I can appreciate Ms A’s frustrations in trying to find the most suitable educational apps for her child, the Council is not obliged to provide anything which is not in the EHC plan. Where its section 19 duty applied, the Council should put in place the provision it considers suitable. A disagreement with a parent as to what is suitable does not amount to fault.
38. I am satisfied the Council has accepted and acted on its section 19 duty appropriately in this instance.

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Decision

39. We find the Council is not at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman