Summary: We have found the Council at fault for not considering alternative provision when it was made aware that Miss X’s son was not attending school. This left a vulnerable child out of education for a 4 month period.

The complaint

1. Miss X complained the Council did not deliver alternative provision for her son, Y when he was out of school between March and July 2022.

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What I have and have not investigated

2. I have investigated the Council’s actions in relation to its decision to refuse alternative provision for Y when he was out of school. This covers the period from March 2022 when he stopped attending school until October 2022 when Miss X brought her complaint to us.
3. I have not considered matters relating Miss X’s request for an Education Health and Care Plan. This matter was considered by a Tribunal in November 2022.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

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How I considered this complaint

6. I considered Miss X’s complaint and spoke to her about it.
7. I also considered the Council’s response to Miss X’s complaint and to my enquiries.
8. Miss X and the organisation 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

The law

Section 19 Education Act 1990

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. Government guidance makes clear that where a council knows a child is not receiving suitable full-time education, or not receiving the number of hours they could benefit from education, it should step in to arrange provision.

Education otherwise than at school (EOTAS)

12. For some children and young people, education in any setting would be inappropriate due to their special educational needs.
13. If it agrees, the local authority can arrange for any required special educational provision to be delivered somewhere else, for example at home. The local authority must arrange and pay for that provision.
14. EOTAS is different to elective home education. With an EOTAS package the local authority is responsible for arranging and paying for the provision.

Appeal rights

15. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

LGSCO Focus report: Out of School, out of sight?

16. In July 2022, we 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.
17. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• Choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• Keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• Work with parents and schools to draw up plans to reintegrate children to mainstream 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;
• Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, retain oversight and control to ensure the council’s duties are properly fulfilled.

What happened

18. In early 2022, Y’s school contacted the Council for initial advice about Y’s potential SEN needs. This was followed up in March when the school raised concerns about Y’s poor attendance.
19. At this time, Miss X contacted the Council. She discussed the possibility of medical needs tuition for Y. The Council met with Miss Y, the school SENCO and an educational psychologist in April. They discussed possible next steps to re-establish Y’s relationship with school staff and to bridge the gap between home and school. This included visits, planned activities and parent involvement with Y to establish a timetable of activities.
20. In May, the educational psychologist emailed the Council to offer further advice. She acknowledged that progress was slow and that Y was not engaging with planning activities. She suggested additional play sessions with the aim of moving them to the school grounds. She also highlighted that the school had submitted an application for an EHC Plan for Y.
21. The same day, Miss X emailed the Council about Y’s education. She said that Y was not receiving the education he was entitled to and that the isolation at home was affecting his confidence, self esteem and mental health. Miss X reminded the Council of its obligations under section 19 of the Education Act.
22. The Council responded acknowledging Miss X’s frustration with the delays. It explained the responsibility for school attendance lies with the parents and the school is normally only expected to provide education for the pupil when they can attend school.
23. The Council acknowledged it had a responsibility to ensure suitable education where a pupil is unable to attend school due to their health needs. It said any school referral for EOTAS is heard by a panel of health and local authority professionals. The Council encouraged Miss X to provide the school with information so it could make a referral.
24. In June, Miss complained to the Council about the lack of alternative provision for Y. During this month, the Council continued to speak to and meet with Miss X. A multi-agency panel supported the work Y’s school was doing to re-engage him into school but did not approve a referral to EOTAS.
25. At the end of June, Y was still not accessing education.
26. At this stage, the Council agreed to 5 hours a week of home tuition to help facilitate Y’s re-engagement at school. It said this was in line with government guidance that states: ‘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.’
27. Following a home visit to assess Y’s needs, the tuition began on 12 July. Miss X was happy with the tutor and felt that Y was engaging with her.
28. Miss X escalated her complaint to stage 2 because she considered the situation was far from resolved. She said the Council had not responded to her suggestion that it had breached its statutory duties, and Y had been denied an education for over 4 months. While she was happy with the tutor, she said it was not a full time education.
29. In summary, Miss X said Y received no education between the period 10 March 2022 – 11 July 2022. During the period 12 – 18 July 2022 he received 3 hours (with one hour still to come) of 1:1 home tuition.
30. In September, the Council met with Miss X where she reported to be happy with the tuition Y was receiving.

My findings

31. The Council has a statutory duty to provide education in cases where children are not able to attend school because of medical conditions or otherwise.
32. We expect councils to consider a child’s individual circumstances and decide, at the time, whether it has a statutory duty to provide alternative provision.
33. Miss X informed the Council in March 2022 that Y had stopped attending school and requested medical needs tuition for Y. At this stage, the Council should have considered whether it had a statutory duty to provide alternative educational provision for Y. I have seen no evidence that the Council did this. This was fault.
34. From the evidence I have seen, the Council considered the actions of Y’s school to qualify as ‘suitable education’. Even when Miss X said Y would not engage with the work set by the school without professional support, the Council did not consider making alternative provision. This was fault.
35. Y was without education for a 4 month period. During this time, the Council met with Miss X and Y and maintained regular contact. It also involved an educational psychologist which was good considering the national shortage. However, this does not take form the fact that the Council did not consider alternative provision until the very end of June 2022.
36. Y’s specific problems meant that the time spent at home was especially difficult for Y and his family.
37. The Council has agreed to apologise and pay Miss X a symbolic payment in line with our Guidance on Remedies. This reflects the period of time Y was without education and the family’s personal circumstances.

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Agreed action

38. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Miss X for the delay in providing alternative provision for Y for a 4 month period.
2. Pay Miss X a symbolic payment of £1000 to recognize the missed provision and the distress it caused the family.
39. Within 12 weeks of my decision, the Council has agreed to:
1. confirm to us that it has reminded officers of the factors they should consider when deciding whether alternative educational provision needs to be made.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. I have found the Council at fault for not properly considering its section 19 duty. This left a vulnerable child out of education for 4 months.

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Investigator's decision on behalf of the Ombudsman