Summary: Mr T complains on behalf of his son (Mr K) who has special educational needs (SEN). There was a two-year period where Mr K could not attend school because of his complex educational needs. Mr T complains the Council failed to provide Mr K with suitable alternative education in accordance with its legal duty under the Education Act 1996. We found the Council failed to provide Mr K with suitable alternative education provision. Overall, the Council provided Mr K with around a quarter of the education he was legally entitled to receive. This had a serious impact on Mr K’s educational development and wellbeing. The Council has accepted our recommendations to remedy the fault and injustice identified.

The complaint

1. The complainant, who I refer to as Mr T, is making a complaint on behalf of his son (Mr K) who has special educational needs (SEN). The Council maintains an Education and Health Care Plan (EHCP) for Mr K. This identifies his SEN and the support he must be provided with to meet these needs. Between June 2020 and October 2022, Mr K was could not attend an educational setting due to his complex educational needs. Mr T alleges the following:
1. a failure by the Council to provide Mr K with suitable alternative education and the provision identified in his EHCP.
2. a failure of communication by the Council in addressing the problems.
2. In summary, Mr T explains the above failings meant Mr K was left at home and without any education. He also says Mr K was isolated and reverted to solitary and repetitive activity. Overall, Mr T explains this has adversely impacted on Mr K’s confidence, wellbeing and educational development. As a desired outcome, Mr T wants to see the Council be held accountable for its errors and to take Mr K’s legal rights seriously. He also wants the Council to compensate him and Mr K for a loss of education over a two-year period.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. The courts have established that if someone could reasonably lodge an appeal to the SEND Tribunal, the Ombudsman cannot investigate any matter which is ‘inextricably linked’ to the matters under appeal. This means that if a person disagrees with the placement named in an EHCP, we cannot seek a remedy for lack of education after the date the right of appeal was engaged if it is linked to the disagreement about the school place named. (R (on the application of ER) v Commissioner for Local Administration (LGO) [2014] EWCA Civ 1407).

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How I considered this complaint

8. I have read Mr T’s complaints to the Council and Ombudsman. I have produced this report following examining relevant files and documents and interviews with the complainant and relevant employees of the Council. I have also had regard to applicable legislation, guidance and policy. I am now providing the complainant and Council with a confidential draft of my decision and invite their comments. The comments received will be taken into account before my decision is finalised.

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My findings

Background and legislative framework

Council’s duty to provide alternative education

9. The Council has a legal duty to make arrangements and to provide full-time and suitable education at school or otherwise than at school, as specified by Section 19 of the Education Act 1996 (s19 duty).This states:

“Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school. This applies to 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.”

10. The Council has a duty to secure the specified special educational provision in an EHCP for the child or young person (Section 42 of the Children and Families Act 2014). The Courts have said this duty to arrange provision is owed personally to the Mr K and is non-delegable. This means if the Council asks another organisation to make the provision and that organisation fails to do so, it remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).
11. ‘Ensuring a good education for children who cannot attend school because of health needs’ (January 2013, amended May 2013) is guidance issued by the Department for Education. While there is no legal deadline to start provision, it should be arranged as soon as it is clear a child will be absent for health reasons for more than 15 days. It also states the provision should be in place by the sixth day of absence, or from the first day where the absence is planned. It also states that some forms of provision, such as one-to-one provision, which is intensive, need not be full-time. Further, provision need not be full-time if unless it is not in the child’s best interests because of their physical or mental health.
12. Alternative Provision Guidance (2013) is also statutory guidance councils must follow when making alternative education arrangements. It says that provision should start as quickly as possible and enable pupils to achieve on a par with mainstream children. Although there is a clear duty on councils to make alternative educational provision, they may decide a child cannot cope with full-time provision, especially where the reason is medical. In such circumstances, there should be a clear professional opinion to support this. Full-time education is not defined, but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child. The law also allows councils to view one-to-one provision as worth more than provision delivered to groups, so a child might receive three hours per day of tuition instead of spending five hours per day at a group-based placement.

Education and Health Care Plan

13. An EHCP is for children and young people aged up to 25 who need more support than is available through special educational needs support. An EHCP identifies educational and health needs and sets out the support to meet those needs (including, but not limited to, providing a specialist educational setting).
14. Councils are not required to provide exactly what parents request, but they should be able to explain clearly why they consider a suggested provision meets the assessed needs of a child. They must also take steps to ensure the view of the child is properly recorded and considered when planning provision for them. In cases where a council has been unable to find a suitable school placement within the time frame, they have a duty to provide appropriate alternative education. We can look at delay in issuing an EHCP, including whether the Council has failed to make purposeful efforts to identify a school place.
15. When an EHCP is maintained for a child or young person the local authority must secure the special educational provision specified in the plan. If a local authority names an independent school or independent college in the plan as special educational provision it must also meet the costs of the fees, including any boarding and lodging where relevant.
16. Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support.
17. The SEND Tribunal is responsible for handling appeals against local authority decisions about SEN. This includes a disagreement about what placement a council identifies as suitable for a child or young person to attend.

Chronology of events

18. In June 2020, Mr K left his school on account of his deteriorating behaviour. The school advised that it would not be able to offer Mr K with a post-16 place. Given the summer term break, Mr K was out of education from September 2020.
19. In November 2020, the Council made a referral for Mr K to receive alternative education provision in the form of home tuition. The Council proposed that Mr K should receive 9 hours of home tuition.
20. In December 2020, the Council received a quotation from a tuition contractor (who I refer to as Provider One). The quotation went to the Council’s internal post-16 Panel the following month which agreed the package of home tuition.
21. In February 2021, the Council issued an amended final EHCP for Mr K. This identified a mainstream specialist school for him to attend in September 2021. The Council acknowledge there had been some miscommunication about the date Mr K could transition to the mainstream specialist school
22. In May 2021, Provider One began providing Mr K home tuition with nine hours of home tuition per week. This lasted until late July 2021. Mr T disputes however that all sessions lasted the agreed hours.
23. In October 2021, the Council sought agreement for Provider One to provide additional home tuition for Mr K. It approved a package of home education the next month. The Council proposed that Mr K should receive a reduced number of 6 hours of home tuition due to his coping ability.
24. In February 2022, Provider One began providing Mr K home tuition. However, the Council acknowledge that Provider One was being inconsistent in the delivery of the package of education since it started. Mr K received ten sessions (three hours each session) until May 2022.
25. In May 2022, the Council decided to engage a second home tuition contractor (who I refer to as Provider Two). The agreement was for 10 hours of home tuition each week. The Council’s contract with Provider One was not renewed by the and Provider Two provided home tuition to Mr K until late July 2022.
26. In October 2022, Mr K started to attend his mainstream specialist school. Mr T self-funded a package of home tuition for Mr K over the Summer before this happened.

My assessment

Legal jurisdiction

27. Importantly, the Council issued an amended final EHCP for Mr K in February 2022. This identified a mainstream specialist school for him to attend. The Council told me the placement has been available for Mr K to attend. The Council told me placement has been available for Mr K to attend from September 2021. This would negate the need for any alternative education provision (such as home tuition). The law says if a person disagrees with the placement named in an EHCP, we cannot seek a remedy for lack of education after the date the right of appeal was engaged if it is linked to the disagreement about the school place.
28. However, the Council is incorrect to say a place for Mr K was available at the identified placement in September 2021. The placement facility had not yet been built and the Council acknowledge this in the evidence it has presented to me. In particular, the Council says it had miscommunicated with Mr T over when Mr K would be able to attend the placement. It also agreed to pay for alternative education provision (further home tuition) until it was suitable for Mr K to attend. The Council paid for periods of alternative education provision until July 2022. In my view, there is therefore an acceptance by the Council that the placement identified in the EHCP was not suitable for Mr K to attend until he did so in October 2022. In these circumstances, it would be unreasonable to expect Mr T to appeal to the SEND Tribunal and so the restriction I outline at Paragraph 5 (above) does not apply.

Complaint outcome a): Alternative education provision

29. The law says the Council must provide alternative education provision to a child or young person of compulsory age if they cannot attend school by reason of their health needs. I found Mr K stopped attending his specialist school in June 2020. There was four weeks remaining of the 2019/2020 academic year before the six-week Summer break. I consider the Council should have started providing Mr K with alternative education provision from the start of the 2020/2021 academic year (September 2020). In reaching this view, I have considered that Mr K has high level needs on account of his SEN and benefits from certainty and for any transitions to be carefully managed. I do not consider that Mr K would have benefited from one or two sessions of home tuition only for this to suddenly end as a result of the Summer break. Further, the Council is also entitled to some time to make alternative education arrangements in the absence of an educational placement being available.

(i) Delay in implementing provision

30. The Council told me it made a referral for Mr K to receive alternative education provision in the form of home tuition in November 2020. The Council says the initial proposal for Mr K was to receive 9 hours of home tuition a week. The Council said it received a quotation from a tuition contractor (who I refer to as Provider One) in December 2020. The Council said this quotation went to its internal post-16 Panel the following month which agreed the package of home tuition. The Council said Mr K’s home tuition with Provider One commenced in early May 2021 and ended in late July 2021. As noted, the Council’s duty to provide alternative education provision was owed to Mr K from September 2020. This means there was an eight-month delay in the provision being provided since Mr K was entitled to receive this. This was fault by the Council.
31. When Provider One began providing alternative education, this consisted of 29 three-hour sessions of home tuition from May to July 2021. In response, Mr T accepts Provider One provided the number of sessions recorded, though disputes these were for the full three hours. The sessions ended as a result of the Council declining to fund alternative education provision during the Summer break before the beginning of the new academic year (2021/22). I have considered Mr T’s point about the number of hours provided by Provider One later in this statement.

(ii) Providing suitable full-time education

32. The Council’s evidence to me refers to Provider One agreeing to provide home tuition for Mr K in October 2021. It says it approved the home tuition the following month. However, Provider One did not begin providing home tuition sessions for Mr K until February 2022. This provision should have been in place for the beginning of academic year (September 2021). This means there was a five-month delay in the provision being provided since Mr K was entitled to receive this. This was fault by the Council. I have carefully considered how many hours of education the Council says that Mr K received from Provider One. I found:
1. May to June 2021 (15 weeks): 9 hours of home education per week.
2. February to May 2022 (10 weeks): 3 hours of home education per week.
33. The Council told me that Mr K did not engage with home tuition well for a period of time. It says this resulted in his 9 hours of home tuition, as approved by the Council, was not in the interests of his physical or mental health. I have reviewed Provider One’s evaluation sheets for these sessions. These record how the tuition sessions went and they include an area for the tutor to detail any concerns about Mr K. I found no concerns were raised in respect of Mr K which required his weekly hours to be reduced from 9 hours per week to 6 hours per week. In my view, there was no evidence or formal recording to support a decision to reduce Mr K’s home education provision. This was fault by the Council.
34. It is also recorded by the Council that Provider One was not meeting the reduced 6 hours per week and were being inconsistent in the delivery of the package of education since it started. The Council is responsible for the overall delivery of alternative education provision. This was fault by the Council. On balance, I accept Mr T’s comments which I refer to at Paragraph 31 (above). This was in respect of Provider One not providing the full 9 hours of home tuition per week.
35. Following the difficulties identified with Provider One, the Council decided to engage a second home tuition contractor (who I refer to as Provider Two). This commenced from mid-May 2022 and the agreement was for 10 hours of home tuition each week. This number of agreed hours supports my view that the reduction of Mr K’s hours of home tuition was less based on his engagement and ability, but rather the capacity problems of Provider One. The contract with Provider One was not renewed by the Council. Provider Two provided home tuition to Mr K until late July 2022. The evidence shows Mr T had concerns that Mr K was academically behind as a result of the lack of suitable alternative education provision by the Council. He self-funded Mr K to continue with Provider Two until he started to attend his named school placement in October 2022.

(iii) Loss of education

36. I considered evidence from the Council to inform what alternative education provision Mr K received in respect of the 2020/21 and 2021/22 school years:
1. May to June 2021 (15 weeks): 9 hours of home education per week.
2. February to May 2022 (10 weeks): 3 hours of home education per week.
3. May 2022 to July 2022 (9 weeks): 10 hours of home tuition per week.
37. Overall, Mr K required alternative education provision for a period of 2 academic years. Each school year is made up of 39 weeks (10 months). Full-time education in Mr K’s case should have been for 25 hours per week. However, one-to-one tuition is worth more than group-based learning. The Council commissioned Provider Two to provide 10 hours per week of home education and I note Mr T did not pursue an increase in the hours. My finding is that Mr K should have received 10 hours per week of home tuition from September 2020 to September 2022 (excluding term time). This equates to 780 hours of suitable alternative provision across the two school years.
38. By the Council’s records, Mr K received 255 hours of home tuition across the two school years. However, the evidence clearly identifies problems in the delivery of home tuition by Provider One. The Council acknowledges that Provider One did not provide the number of contracted hours. I am therefore discounting the number of hours Provider One claim to have provided Mr K in 2021 and 2022 by 25 percent. My finding is the Council provided Mr K with 214 hours of home tuition over the two-year period. This equates to 27 percent of the alternative education provision Mr K should have received. This means the Council failed in its duty to provide suitable full-time alternative education. This was fault by the Council.
39. The fault identified has caused Mr K a significant injustice. He has not received the education he was by law entitled to receive. This had a serious impact on Mr K’s educational development and caused him distress by reason of being isolated at home. Our remedies guidance outlines that where no education is provided at all, we would normally recommend £600 per month to remedy a loss of education. There are 10 academic months in each school year. In this case, there was lack of the required provision over 2 academic years. This equates to a remedy of £12,000. However, the Council provided 27% of the provision Mr K was entitled to receive and so this should be accounted for. This informs a financial remedy of £8,760 to put right Mr K’s loss of education and his associated distress.

Complaint outcome b): Communication and service

40. Mr T complains the Council’s handling of his complaints and concerns were dealt with poorly. In response, the Council accepts there has been a lack of clear communication across its services regarding interim education provision to support Mr K. From my investigation, I found the Council provided a very poor service to Mr K, Mr T and the wider family. The evidence supports poor administrative practice and a lack of oversight by the Council to meet its legal s19 duty. This was fault by the Council. The Council has apologised to Mr T for the impact this had on Mr K and his family. In my view, the Council’s failings in this area aggravated the distress and uncertainty of Mr T who has principally pursued this complaint. I therefore consider he too has suffered a significant injustice.

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Agreed actions

41. The Council will perform the following actions by 11 May 2023:
1. Provide a written apology to Mr T and his family which acknowledges each area of fault and injustice identified in this statement.
2. Pay Mr T £8,760 to remedy Mr K’s loss of education. This amount should be used for the educational development of Mr K and to reimburse Mr T for the home tuition he self-funded for a short period of time.
3. The Council will also pay Mr T £200 to serve as an acknowledgement of the uncertainty and distress he has suffered because of the fault identified.
42. The Council will also perform the following action by 6 July 2023:

d) At a senior level, the Council will undertake a detailed written review into the failings identified in this statement. This will focus on its delays in implementing timely alternative provision and the effective monitoring and recording of decisions relating to what provision is suitable in the circumstances. The Council will adopt measures to identify when alternative provision must be implemented and what arrangements are needed to ensure this is provided. The review will also inform service improvements and policy changes, as well as specific feedback and areas of needed training to those involved in the case.

43. The Council should provide us with evidence it has complied with the above actions by the deadlines outlined (above).

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Final decision

44. The complaint is upheld. I found the Council failed to meet its s19 duty to provide Mr K with suitable alternative education provision. Moreover, the Council’s service to Mr T’s family was poor, lacked oversight and did not demonstrate good administrative practice. This had a serious impact on Mr K’s educational development and wellbeing. The fault also caused Mr T significant distress and uncertainty. The Council has accepted my recommendations to remedy the fault and injustice identified.

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Investigator's decision on behalf of the Ombudsman