Summary: Mr D complained the Council has failed to provide his son, E, with a suitable education after his school placement broke down. We find the Council was at fault for how it handled Mr D’s son’s education after the placement broke down. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr D complained the Council has failed to provide his son, E, with a suitable education after his school placement broke down.
2. Mr D says the matter has caused distress and upset. He says the Council’s faults have had a detrimental impact on E’s educational progression.

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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. 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. I considered information from Mr D. I made written enquiries of the Council and considered information it sent in response.
7. Mr D 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

Education, Health and Care Plans

8. 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. 

Alternative provision

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. 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))
11. Good alternative provision is that which appropriately needs the needs of pupils and enables them to achieve good educational attainment on par with their mainstream peers, particularly in English, maths and science (including IT).

What happened

12. This chronology includes an overview of key events and does not detail everything that happened.
13. E has special educational needs and an EHC Plan. The Council issued E with an EHC Plan in April 2022 and named a school (School B).
14. School B conducted its own assessments of E so it could develop a programme suitable for his academic needs. It also provided him with some home tuition.
15. Mr D emailed the Council in September and said School B was failing to provide E with a full-time education. He said he asked for 25 hours of education per week for E, but School B was only providing 12 hours.
16. The Council spoke to School B about E’s education. School B explained it had proposed a transition timetable so E could eventually attend full time.
17. School B emailed the Council at the end of September and said it wanted to end E’s placement. It re-iterated this at the beginning of October and said E’s placement would end on 21 October. It said it would send work home, but it did not have anyone that was willing to work in the family home.
18. The Council agreed to search for a new placement for E. It also sent a referral for E to receive interim alternative provision at its education programme. The Council’s education programme is a service which provides interim one-to-one learning support to students who are waiting for a school place. The education programme rejected the referral and said it could not meet E’s needs.
19. The Council sent out consultation paperwork to various schools. The schools responded and said they were full, or they could not meet E’s needs.
20. The Council also sent referrals to other tuition providers. The providers responded and said they could not source suitable tutors.
21. The Council reapproached its education programme at the beginning of November and asked it to reconsider providing E with some tuition. The education programme agreed to provide tuition for E on 14 November. This was five online sessions per week, with each session lasting one and a half hours. The focus was on maths and English. The manager agreed to review the hours once the tutors had established a routine.
22. The Council continued to search for a placement for E by consulting with different educational settings. However, it was unsuccessful finding E a place.
23. Mr D emailed the Council in December and said he wanted it to increase E’s tuition to two hours a day. The Council contacted the education programme. An officer responded and said they would review the matter in January.
24. The Council discuss E’s case at its school placement panel in March 2023. It continued to consult with further settings after the panel meeting.
25. Mr D complained to Council in April. He said it had failed to provide E with an education after he stopped attending School B.
26. E received an offer from a school (School C). The Council emailed Mr D and said it had agreed funding for E to start in the new academic year.
27. The Council issued E’s final EHC Plan in early July. This stated E would receive an education package from School C in September.
28. The Council responded to Mr D’s complaint and said it had been communicating with him weekly to provide him with an update on the school consultations. It said it had now issued E’s EHC Plan.
29. Mr D referred his complaint to stage two of the Council’s complaints procedure. He said E had been out of school for a long time. The Council responded and said E’s placement at School B was unsuccessful and therefore it provided him with an education from its education programme.

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Analysis

30. School B said at the beginning of October 2022 it was ending its placement, it would only send work home, and it would not provide any tuition for E in the home. I consider at that stage the Council had a duty to review the education E was receiving and consider its section 19 duties. Work set by a school to be done at home is not the same as teaching and does not count. It is therefore clear E was not receiving a suitable education from the beginning of October. The Council did not provide E with any form of education until 14 November. This delay is fault.
31. As E did not have a school place, the Council arranged for him to receive an interim education at its education programme. There is no fault in this approach. It is clear the Council was having difficulties finding a school place for E and therefore it had to make alternative arrangements.
32. Full-time education is not defined in law, but pupils in alternative provision should receive the same amount of education as they would receive in a maintained school. Full time education for a young person of E’s age is 25 hours per week. If councils provide one-to-one tuition the number of face-to-face hours can be fewer because the provision is more concentrated.
33. The Council’s view is that one hour of one-to-one provision is equivalent to three hours of classroom education. It says its education programme decided seven and a half hours of tuition per week was a good starting point for E. It adds it was satisfied this was suitable for E and it was equivalent to a full-time education.
34. I accept one-to-one provision is more concentrated than classroom education. However, the Council has not provided me with evidence and a detailed explanation to show how it decided one hour of one-to-one provision is equivalent to three hours of classroom education. Without this evidence, I cannot accept, even considering one-to-one provision, seven and a half hours per week is equivalent to a full-time education. Even by the Council’s calculations, this amounts to 22.5 hours per week and not the 25 hours per week E was entitled to. Mr D asked for E to receive more hours, but the Council has not provided me with any evidence to show this was provided or whether it conducted any assessments to determine what else E could have coped with.
35. Councils must also provide a broad and balanced curriculum, and alternative provision must be of a standard a child would receive in school. E’s EHC Plan said he should receive full access to the curriculum. Councils have a legal duty to provide a child with the provision in their EHC Plan. The Council only provided E with English and maths tuition. This is not access to the full curriculum, and it is not on a par with the education E’s peers would have received. E was in Year 11 and therefore it was an important stage in his educational career. The Council has not provided evidence to show it considered how it could provide E with a broad and balanced curriculum, as his peer group at school were able to do, in a way he could access.
36. The Council’s faults have caused Mr D frustration and distress about E’s education. It has also caused E a significant injustice as he was without the education he was legally entitled to. The Council should take action to remedy this injustice.

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Agreed action

37. By 12 March 2024 the Council has agreed to:

• Apologise to Mr D and E for the injustice caused by the faults identified in this statement.
• Pay Mr D £2,896.50 for the loss of E’s educational provision from October 2022 to July 2023. We would suggest Mr D uses this for E’s educational benefit.
• Pay Mr D £250 for his frustration and distress.

38. By 9 April 2024 the Council has agreed to:

• Issue written reminders to relevant staff to ensure they are aware children who receive alternative provision should have access to a broad and balanced curriculum where appropriate. The provision must also be of a standard a child would receive in school.

39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. There was fault by the Council, which caused Mr D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman