Summary: Mrs X complained the Council failed to ensure her son, Y, received alternative tuition from April 2022 to July 2022. Mrs X also complained the Council failed to ensure Y received education when the tutor went on holiday for two weeks in May 2022 and a week in June 2022. Mrs X said Y missed out on education. There was fault in the way the Council did not ensure Y received any education for the three weeks detailed and did not follow its complaint process. Mrs X was frustrated by the Council’s actions and was put to time and trouble to complain. Y missed out on education. The Council has agreed to apologise and make a financial payment.

The complaint

1. Mrs X complained the Council failed to ensure her son, Y, received alternative tuition from April 2022 to July 2022. Mrs X also complained the Council failed to ensure Y received education when the tutor went on holiday for two weeks in May 2022 and a week in June 2022. Mrs X said Y missed out on education.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
3. 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)
4. 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

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered information provided by Mrs X and the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

8. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
9. 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.
10. 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)
11. 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)
12. A child or young person with special educational needs may have an Education, Health and Care Plan (EHCP). This document sets out the child’s needs and what arrangements should be made to meet them. The EHCP 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. 

What happened

13. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
14. This complaint continues a previous complaint to the Ombudsman. Y is on roll at school B. School B provide Y with online tuition totalling four hours per week.
15. The previous investigation identified no fault with the alternative provision but found fault about the lack of EHCP provision. The previous investigation detailed school B offered Y swimming lessons and sessions at a farm to meet Y’s needs, detailed in his EHCP, in April 2022. The decision stated Mrs X decided not to accept the offer of sessions at a farm. It also said Mrs X was keen to accept the swimming lessons but wanted them closer to home.
16. Y’s online tutor could not provide support for a week at the start of May 2022, a week at the end of May 2022 and a week in June 2022. The school reported it could not source an alternative tutor.
17. Mrs X complained to the Council in January 2023. She detailed while Y’s tutor was on holiday, he had no education. Mrs X stated the Council failed to provide alternative education.
18. The Council responded in May 2023. The Council told Mrs X it would discuss this with school B and come back to Mrs X. The Council advised Mrs X the school did not tell it about the tutors three weeks off until after the last week. The response stated the Council was satisfied school B attempted to source an alternative tutor, but it could not. The Council added school B offered Y swimming lessons and visits to a farm.
19. Mrs X was not satisfied with the Council's response and requested it escalate her complaint to stage two.
20. The Council did not complete a stage two investigation.
21. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to apologise and provide a financial payment.
22. In response to my enquiries the Council stated school B decided, arranged and monitored Y’s education. It stated it was not aware of the issues with the tutor until after the holidays. The Council added if it did know, it would have had the same issues in sourcing a suitably qualified and experienced tutor.

My findings

23. This matter is the same as previously considered by a different Ombudsman investigation, just a later time. The previous investigation found no fault about the education offered but did find fault in the lack of EHCP provision. The investigation concluded in April 2022. Y was offered swimming lessons and time at a farm provision to meet these needs. This investigation covers the same points from April 2022 until June 2022.

Alternative tuition

24. Councils must intervene and provide education under their Section 19 Education Act duty if no suitable educational provision has been made by the school for a child who is missing education through exclusion, illness or otherwise.
25. However, case law has stated that whether the duty applies is determined by “the objective consideration of whether the education offered is reasonably possible or reasonably practical to be accessed by the child in question”.
26. School B did not at any stage state it could not meet Y’s needs. Y remained on roll with school B. School B arranged for alternative provision to ensure Y received education.
27. The Council met its s19 duties under the Education Act because there was always a school place available for Y that could meet his needs.
28. The Council was also under a duty to ensure the provision in Y’s EHC Plan was secured and delivered.
29. School B put four hours per week tutoring in place. Mrs X previously said that this was at a level that suited Y because he would struggle to take part in online study for any longer than that. However, Mrs X felt Y could manage to learn for longer if the tuition had been in-person.
30. It is likely the tutoring met some of the educational provision in Y’s Plan and because it was 1:1 provision, Y would have benefitted more than if he was in a larger class. The tutoring was unable to meet any of the provision in Y’s Plan which was designed to develop his social skills. However, that support was available within School B, where Y remained on roll.
31. The Council did offer some alternative education to help meet Y’s needs around socialising in April 2022. The offer was for farm visits and to fund swimming lessons. School B determined the provision was suitable for Y’s needs. Mrs X decided not to accept school B’s offer for the farm visits. She wanted to accept the offer of swimming lessons but was unable to source a lesson close enough to her home, so could not accept it. Mrs X could refuse this offer, but the Council determined a suitable offer was available for Y. The Council was not at fault.

Tutor holidays

32. The Council is satisfied school B attempted to source alternative tuition for Y during the tutors’ holidays. The Council stated school B only informed it of the issue, after the holidays, so could not act. The Council added if it had known before, it would have had the same issues sourcing an appropriate tutor.
33. The Ombudsman recognises the difficulty sourcing a suitably qualified and experienced alternative tutor. However, we take the view that councils must abide by the statutory and legislative requirements under legislation and guidance. The failure to provide an alternative tutor here amounts to a service failure and Y missed education. 
34. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 

Complaint handling

35. Mrs X complained to the Council in January 2023. The response did not cover all the points in Mrs X’s complaint. The Council did not respond until May 2023. This is more than the 20 working days set out in its policy. This is fault and caused Mrs X distress, frustration and avoidable time and trouble.
36. The Council has not provided a stage two complaint despite Mrs X requesting it over six months ago. This is fault and frustrated Mrs X.

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Agreed action

37. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for not ensuring Y received tuition and the poor complaint handling. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X £100 as an acknowledgement of her frustration and the time and trouble she has spent pursuing this complaint.
• Pay Mrs X £200 for not ensuring Y received education while the tutor was on holiday for three weeks. This money should be used for Y’s benefit.
• I would generally make a service improvement recommendation. The Ombudsman has already made service improvement recommendations on the issues raised in this matter in other cases. We are actively monitoring the Council’s actions.
38. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

39. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman