Summary: There was fault by the Council, because it delayed arranging alternative provision for a child out of school, and because the tuition he then received did not cover an adequate range of subjects. There was also fault, because the Council did not respond promptly to messages it received from the complainant at important times. The Council has agreed to formally apologise for these faults, and offer a financial remedy to reflect the injustice they caused.

The complaint

1. I will refer to the complainant as Miss H.
2. Miss H complains about several different aspects of the Council’s handling of her son, J’s, education. Specifically, she says:

• the Council delayed arranging alternative provision for J, after his withdrawal from school in September 2022, meaning he had no education at all for several months;
• there was a significant delay in arranging a new school placement for J; and
• the Council frequently failed to respond to her attempts to contact it to discuss J’s situation.

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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)

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How I considered this complaint

4. I reviewed Miss H’s correspondence with the Council, its notes, J’s education, health and care plan, and the Council’s comments in response to my enquiries.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. J is subject to an education, health and care (EHC) plan because of learning difficulties. In September 2022, J started a new school (to which I will refer as School 1), which was a small specialist establishment for pupils who were not currently attending mainstream education.
7. On 12 September, Miss H contacted J’s case officer (Officer G). at the Council. She said that, on J’s first day, other pupils offered him a cigarette and discussed gang affiliations with him. For this reason, Miss H said she would not be returning J to School 1. Officer G said it was important to discuss the matter with the school, and Miss H agreed to attend a meeting.
8. The meeting took place on 27 September, and Miss H agreed to return J to School 1 with a reduced timetable. However, later that day a different council officer called Miss H, who reiterated her concerns about School 1 and said she wished to withdraw J from it, as it was not suitable for someone with his vulnerabilities. The officer explained Officer G was now on sick leave and Miss H agreed to speak to her when she returned.
9. Officer G contacted Miss H on 2 November. She said she understood Miss H did not wish J to attend School 1 anymore, and asked her to name other schools she would prefer him to attend.
10. On 7 November, Officer G contacted a tuition agency to arrange home tuition for him, while she consulted with other schools. On 11 November, she sent consultation documents to several schools, including one to which I will refer as School 2.
11. School 2 contacted Officer G on 17 November to say it offered Miss H a tour of the school, but had received no response.
12. On 22 November, it became apparent the tuition agency’s initial response to Officer G had not come through. It re-sent the response and Officer G sent some documents, including J’s EHC plan, to the agency.
13. On 16 December, Officer G contacted School 2 to ask if J had visited the school yet.
14. In January a support service contacted the Council on Miss H’s behalf, to enquire about its progress. On 6 January Officer G explained to the service School 2 had offered Miss H a tour in November, but had had no response. Officer G said she had told the school it should approach Miss H again with this offer.
15. The service contacted Officer G again on 12 January to say it had discussed this with Miss H, who said she had never received any contact from School 2. The service gave Miss H the school’s contact details and advised her to arrange a visit as soon as possible.
16. The service contacted Officer G again on 30 January. It said Miss H had tried to contact School 2 but had had no response, but it also confirmed J was engaging with the tuition he was receiving. Officer G subsequently contacted another council officer, Officer Y, to explain she had also been unable to contact School 2.
17. On 16 March, Miss H contacted the Council to confirm she had visited School 2 and wished for J to have a place there. On 31 March, Miss H emailed the Council again, to say she had had no response to this. Officer Y responded to say the Council had agreed J’s placement at School 2, but was now awaiting a start date for him. Officer Y assured Miss H J’s tuition would remain in place until he started at School 2.
18. On 20 April, Miss H contacted the Council to say J had had a trial day at School 2 the previous day, which had been successful. She followed this up on 28 April, saying she had had no response to this, or to several calls and messages she and the support service had left.
19. On 18 May, Officer G contacted School 2 to ask for a start date. The school replied to say it could only do this once the Council had approved his funding. On 6 June, it contacted Officer G again to seek an update on the funding.
20. Shortly after this, J started at School 2.

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Legislative background

Education, health and care plans

21. A child with special educational needs may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
22. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Alternative provision

23. 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.
24. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” We refer to this as the ‘s19 duty’. (Education Act 1996, section 19(1))
25. 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)
26. 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 1:1 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’)

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Analysis

27. Miss H’s complaint covers three points; which, for clarity, I will address separately and in turn.

Delay in arranging alternative provision

28. Where a child of compulsory school age is failing to regularly attend school, there are, broadly-speaking, two approaches local authorities can take to the problem: they can either deal with it as an attendance (‘truancy’) matter, and consider using their enforcement powers; or they can accept the child is unable to attend school, in which case they should make alternative arrangements under their s19 duty.
29. If a council decides its s19 duty is engaged, the statutory guidance published by the Government (‘Ensuring a good education for children who cannot attend school because of health needs’) says it should make arrangements for suitable alternative provision as soon as it becomes clear the child will be absent for 15 days or more. The guidance does not set a deadline for how quickly the provision must be in place, but councils should do so as soon as practical.
30. In this case, Miss H made the decision to withdraw J from School 1 at the beginning of September, because she did not consider it a suitable environment for him. But the Council says it did not begin to arrange alternative provision for J until November because, until that point, efforts were being made to return him to School 1.
31. I consider this something of a misrepresentation. Miss H agreed to attend a meeting between the Council and school on 27 September, and, according to the Council's notes, she agreed to return J to School 1 on a reduced timetable. However, in a phone call later that day, Miss H insisted she wished to withdraw J from the school.
32. This appears contradictory, and unfortunately I am unable to unravel the contradiction any further. Either way though, it is entirely clear J did not return to School 1 after this meeting, and at that point the ’15 day’ rule became applicable. So it is not that efforts to return J to School 1 continued to be made until November, as the Council’s comment to me implies; rather, it appears simply that the Council was unaware J was still not attending school until November, because Officer G was on sick leave until this time, and nobody else was supervising or monitoring J’s case in the meantime.
33. I will note that, once Officer G returned to work, she quickly began to arrange a tutor for J. It took several weeks further for the tuition to begin, and it is not clear why this was, although I have no evidence it was due to any error by the Council. Given there is no formal deadline for councils to arrange alternative provision, once it becomes a requirement, I do not consider this period of delay to represent fault.
34. However, given the urgency of the situation, I consider the Council should have ensured J’s case was being monitored or supervised in Officer G’s absence; and that arrangements for alternative provision should therefore have begun in late September or early October. Even assuming it would still have taken a similar time to implement, it appears likely J’s tuition would have begun approximately one month earlier had the Council done so.
35. On a separate note, Miss H has told me that, although J consistently engaged and attended his tuition sessions until they ended, they consisted of only two hours per day in “basic” English and Maths.
36. As described in the previous section, although the law requires alternative provision to be the equivalent of full-time education, there is no formal definition of this in law. It is recognised, however, that 1:1 tuition – of the type J was receiving – can require fewer hours than education in a group setting, because it is more concentrated and focused on the individual learner.
37. This being so, I do not consider a limit of two hours of tuition per day to be obviously unreasonable. However, the statutory guidance also says alternative provision should “still aim to achieve good academic attainment particularly in English, Maths and Science”.
38. I asked the Council to comment on this. It said:

“Tuition … is usually offered to compensate core subjects, as this is always an interim measure in the view of offering full time provision as soon as possible.”

39. Given the wording of the statutory guidance, it appears the ‘core subjects’ to which the Council refers should also include Science. I should note I have no documentary evidence of precisely what J’s tuition included, but as the Council has not refuted Miss H’s claim it consisted only of English and Maths, I will assume this is correct. It follows, therefore, that J’s tuition did not cover an appropriate range of subjects.
40. Further to this, I also asked the Council how it ensured any specialist provision set out in J’s EHC plan was maintained during the tuition. The Council responded:

“Tuition is not to compensate school hours but is to cover main subjects until an educational setting is offered. It is therefore possible [sic] to implement the provisions in an EHC plan when tuition is an interim measure.”

41. I will assume the Council intended to write “it is therefore not possible” here, as this sentence does not make sense in context otherwise.
42. I have reviewed a copy of J’s EHC plan dated April 2020 (I also have a more recent version dated August 2023, but which post-dates the events here). The plan sets out a range of strategies for teachers to use to engage J at school and to ensure he understands lessons. I acknowledge, therefore, it is difficult to see how any of this could have practically been implemented during his 1:1 tuition sessions, given the difference in environment. I am conscious, also, that the evidence shows J generally engaged well with his tutor during these sessions.
43. The fact remains we would generally expect that, where a child or young person has an EHC plan, and is subject to a prolonged period of alternative provision for whatever reason, any specialist provision set out in their plan should still be maintained as far as practicable. I am concerned, therefore, at the Council’s comment about this, which implies a general view that alternative provision is only a short-term measure, and it is therefore unnecessary to implement an EHC plan during this time.
44. I therefore find fault by the Council here, because J’s alternative provision was delayed by a month, and because it did not consider of the appropriate range of subjects. I also find fault because of the Council’s statement about maintaining an EHC plan during alternative provision. I will consider what injustice these faults have caused to J and Miss H, and what the Council should do to address this, later in this decision statement.

Delay in arranging new school placement

45. After Officer G returned to work, she began searching for a new school placement for J. She consulted with several schools, one of which was School 2, which J now attends. Unfortunately there was a long period of delay between the school’s response to the consultation in November, and J taking up a place there in June.
46. The first delay appears to have arisen because Miss H did not receive an invitation from the school to visit, which it sent in November. When Miss H did not respond, the school notified Officer G of this, who later noted she had told the school to repeat the offer. I cannot say what came of this, but either way, in January it became clear Miss H had not received any contact from the school.
47. I cannot say why the school was unable to contact Miss H, but I have no reason to think this was due to fault by the Council. With hindsight, it appears it would have been helpful had Officer G contacted Miss H herself in November, after the school had told her it had received no response from Miss H. On balance though, I do not consider this fault, because I am conscious Officer G had no duty to chase Miss H on the school’s behalf, and nor does it appear she had a reason to believe Miss H was unaware of the school’s offer of a visit.
48. After Miss H learned of School 2’s offer of a visit, she then wrote to the Council to explain she had had no response to her own attempts to contact the school. I note the Council says it experienced similar problems with contacting the school at this time. Finally, in March, Miss H visited the school and then told the Council she would like J to take up a place there; then in April she reiterated this, after J had a successful trial day there.
49. There followed further confusion, with Officer G chasing the school for a start date, and the school, in turn, chasing the Council for a confirmation it would fund J’s placement.
50. It is clear that this extended delay in securing J’s placement was not simply the fault of the Council. Whatever the reason, the school was initially unable to contact Miss H, and following this, both she and the Council were unable to contact the school. It was only in March/April that Miss H and J were able to visit the school properly and confirm their desire for the placement. From the information available, it appears the Council then took some time to confirm it would fund the placement, but even this does not necessarily mean J could have started at the school significantly sooner than he did.
51. Ultimately, I do not consider I can safely find fault by the Council for this. It is possible the wait for a placement at School 2 could have been reduced had the Council been more proactive. However, I cannot point to any particular error or oversight by the Council here; rather, it appears the delay was caused by a variety of circumstances, some entirely outside the Council’s control. This being so, I consider it would be too speculative to make a finding of fault here.

Failure to respond

52. Miss H also complains the Council frequently failed to respond to her when she attempted to contact it to discuss J’s situation.
53. I do not appear to have a comprehensive record of every piece of relevant correspondence between Miss H and the Council. However, I can see that, after her visit to School 2 in March, Miss H emailed the Council to say she was happy with the proposal for J to attend it. A couple of weeks later she wrote again to complain she had had no response to this.
54. And then, in April, Miss H emailed the Council to say J had visited the school for a trial session which had been successful. Again, a couple of weeks later she emailed the Council to complain it had not responded.
55. I have seen no comment by the Council on these incidents and so, on the balance of probabilities, I accept they happened.
56. We recognise that council officers usually have large caseloads and must balance their time carefully; and so we will not find fault simply because an officer has failed to respond quickly whenever somebody tries to contact them. However, given the circumstances here – J having been out of school for most of a school year – I do consider the Council should have been more prompt in responding to Miss H’s messages about the placement at School 2.
57. I should reiterate that, for the reasons I have set out in my consideration of the previous element of Miss H’s complaint, I do not consider this means J would have taken up his place at School 2 any sooner. But even accepting this, it is clear Miss H was frustrated by the situation, and quicker responses to her messages would likely have helped alleviate this frustration to some degree.

Conclusions

58. I find fault by the Council here for the following reasons:

• it did not maintain oversight of J’s case during Officer G’s absence, which meant there was a delay of approximately one month in arranging alternative provision for him;
• the alternative provision, while reasonable in its quantity, should have included a Science element, in accordance with the statutory guidance;
• it appears to have a general view that it is impractical and unnecessary to maintain an EHC plan during alternative provision; and
• it did not respond promptly to important messages from Miss H.

59. I do not find fault in the delay in securing a placement for J at School 2, because it is too speculative to say this was substantially due to an error or oversight by the Council.
60. I consider the faults with the alternative provision have caused an injustice to J, because he missed out on approximately one month’s education entirely; and the approximately five months (excluding school holidays) of tuition did not include a core subject he should have been studying.
61. However, I do not find the Council’s comment about maintaining an EHC plan to have caused J an injustice. This is because I accept, in his case, it was not practical, given the nature of the provision set out in his plan, and also because the evidence shows he was well engaged with his tuition.
62. Miss H says the faults in this case mean J was unable to take his GSCEs, which he was due to do in Summer 2023, and must now resit Year 11.
63. I acknowledge Miss H’s distress with this, and I appreciate her reason for believing it is due to fault by the Council. However, taking into account my findings here, I do not consider I can find J would have sat his GSCEs as scheduled had it not been for mishandling by the Council, as this again would be very speculative.
64. It remains the case, though, that J did not receive important elements of educational provision.
65. Our published Guidance on Remedies says:

“Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:

• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss.”

66. In this case, J lost education entirely for approximately one month, and an element of his education for approximately two terms. For the reasons set out, I do not consider his special educational need to represent a particular aggravating factor here though; and given he is now in full time education and repeating Y11 anyway, I do not consider additional provision can practically make up any of this loss.
67. Taking these factors together, I consider it appropriate to depart from the tariff set out in our guidance and recommend a smaller figure of £600, to reflect the impact of J’s loss of education. Although this is an injustice to him, as J is a minor the Council should pay this money to Miss H, for her to decide how best to use it for his benefit.
68. I also consider Miss H has suffered an injustice here, because of her frustration at the faults I have identified in J’s alternative provision, and also specifically because of the Council’s failure to respond promptly to some of her messages. I consider the Council should offer her an additional £200 to remedy this injustice.
69. I also consider the Council should write a formal letter of apology to Miss H, reflecting on the faults identified here and acknowledging the injustice they caused.
70. Separately, and although I accept there is no injustice to J with respect to this, I consider the Council should take steps to ensure relevant staff members are aware they should take steps to maintain the provisions of an EHC plan, where practical, during a period of alternative provision.
71. I make recommendations to this effect.

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Agreed action

72. Within one month of the date of my final decision, the Council has agreed to:

• write a formal letter of apology to Miss H, reflecting on the faults identified here and acknowledging the injustice they caused;
• offer to pay Miss H £600 for J’s benefit, to reflect the impact of the delayed and inadequate range of alternative provision he received;
• offer to pay Miss H £200, to reflect the frustration she has suffered due to the fault with the alternative provision and its failure to respond promptly to messages from her; and
• circulate guidance to all relevant staff, to ensure they are aware they should take steps to maintain the provisions of an EHC plan, where practical, during a period of alternative provision.

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

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Final decision

74. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman