Summary: Ms X complained that the Council failed to provide suitable full-time education to her son while he was unable to attend school. We have found no fault. The Council provided education which, in its view, met Ms X’s son’s needs, and it has explained why it did not consider it appropriate to make more education available to him. These were matters for the Council to decide and we have no power to question them.

The complaint

1. Ms X complains that, while her son – Y – was out of school between March and June 2023, the Council failed to provide him with a suitable full-time education and failed to provide support for his special educational needs.
2. Ms X says:
• Y could participate in suitable full-time education; however, what the Council offered was not suitable, because he did not want to engage with it. If he would not engage, the education could not be described as suitable.
• No small group classes were offered to help Y build his confidence. Ms X had to arrange these herself.
• No physical education was provided, or any other support for Y’s physical social or emotional needs.
• The Council did not agree Ms X’s request for a personal budget, which she had asked for so she could ensure Y’s needs were met.
3. Ms X says the Council’s failings led to Y losing education, which means he is now well behind his peers. She says he also gained weight significantly because of the lack of physical education.
4. Ms X says she herself incurred costs because of Y’s lost education, and suffered distress.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)

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How I considered this complaint

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The Council’s responsibilities

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. (Education Act 1996, section 19). We refer to this as ‘section 19’ provision.
10. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
11. The section 19 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)
12. 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’)
13. 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.
14. The EHC plan is set out in sections which include section F (the special educational provision needed by the child or the young person).
15. Councils have a duty to make sure children receive the special educational provision set out in section F of their EHC plans. (Children and Families Act 2014, section 42)

What happened

16. In late 2022, the Council issued an EHC plan for Y. Among other things, the plan set out the physical education he was to receive while in school.
17. In February 2023, the Council reviewed Y’s EHC plan. It noted that:
• He attended an accredited alternative therapeutic provision three days a week.
• He also received six hours a week of home tuition, which was soon to be extended to 12 hours.
• He was no longer doing PE as he was not in school. However, he did attend the gym at his alternative provision, and he needed to do more of this.
18. Later the same month, Ms X asked Y’s alternative provision to reduce his hours (to twice a week). She said this was so he could fit in his 12 hours of tuition.
19. Y’s tutor provided the Council with progress reports during March. Y initially attended all the tuition and engaged very well. Ms X confirmed this to the Council.
20. In mid-March, Ms X told the Council that Y could not fit all his tuition into three days. She wanted it over four days instead. She asked his alternative provision to reduce his hours to once a week, on a Friday. This Friday provision was off-site, so Y had no access to the gym.
21. In late March, Y spent a period refusing to engage with his maths tuition (although it remained available to him). The Council explored the option of finding a second tutor to deliver maths; however, by the end of the month Ms X confirmed that the existing tuition was working well again.
22. At that point, Ms X asked to end Y’s alternative provision so his tuition could be increased. She said she had booked extra maths lessons and some tuition in a classroom environment, so there was no time for the alternative provision.
23. The Council refused, saying the alternative provision was meeting Y’s needs.
24. It did, however, agree to provide a personal budget so Ms X could buy computer equipment to support Y’s learning. It consulted his tutor about his needs, and she provided information about resources which would be useful. The Council then based the budget on the tutor’s recommendations.
25. From late April onwards, Y attended very little tuition. For part of this period he was either preparing for (or attending) trial sessions at a prospective new school, or was on holiday. However, the tuition remained available to him.
26. In June, Y started at a new school.

The Council’s view of the complaint

27. The Council says:
• In cases where a child is unable to attend school, it has a duty to provide alternative education. However, in some cases, this education will not necessarily be full-time. The Council must consider how a child is responding to the provision already in place before increasing it.
• Y had a package of education which was suitable for him. The majority of tuition reports show that he engaged well, and was making good or outstanding progress.
• Aspects of Y’s education package were stopped at Ms X’s request, which reduced it to tuition only.
• The Council considered how Y was dealing with the education available to him and decided it would not be appropriate to put more tuition in place.

My findings

28. The Council’s offer of education to Y– 12 hours tuition and three days of alternative provision – was not obviously short of full time. However, Y had some difficulty accessing all of it.
29. Ms X’s view is that this meant the package was unsuitable. However, it is not for me to decide the suitability of a child’s education.
30. In Y’s case, the Council considered Ms X’s views on Y’s education but decided his needs were best met with a combination of tuition and alternative provision (the latter of which was meant to be meeting his physical needs). This was a matter of judgment for the Council, and I have found no fault with how it exercised that judgment.
31. With this mind, and given it was Ms X’s own requests to reduce Y’s hours at his alternative provision because he could not manage the tuition package unless it was spread over four days, it is not obvious how his provision could have been significantly increased. Certainly, this was the Council’s view. I have found no fault with this.
32. Y’s EHC plan set out his physical needs and the provision required to meet them. But the physical education set out in the plan was designed to be delivered in school. So I would not expect the Council to have been able to deliver this exact provision to Y while he was not attending school.
33. Nonetheless, the Council considered Y’s physical needs in his annual review, and noted that he could (and should) use the gym at his alternative provision.
34. This interim way of meeting Y’s physical needs until he was back in school was, again, something for the Council to decide. And it was Ms X’s decision to stop sending Y to the alternative provision on the days he could use the gym. This was not the Council’s fault.
35. With regard to Y’s personal budget, the Council considered his needs (and consulted his tutor) before deciding what the budget should be. This was linked to the equipment and resources the tutor felt he needed. Although Ms X felt the budget should be higher, I have seen nothing to suggest that the Council’s actions were unreasonable.

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Decision

36. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman