This month, we take a closer look at a January 2023 decision of the Local Government and Social Care Ombudsman in which a local authority was found at fault for not following statutory guidance when supporting a boy unable to attend school because of health needs. This caused him to miss out on suitable education for several months. We take this opportunity to examine the relevant statutory guidance more closely, setting out what is expected of local authorities when supporting individual children, as well as developing relevant local policies.
Local authority at fault for failing to follow statutory guidance when arranging education for a child unable to attend school
Background
This decision concerns a 14 year-old boy, referred to as Y. Y has long-term health conditions causing serious fatigue. In 2017 Y became too unwell to continue attending mainstream school and he began receiving home (medical) tuition. In March 2021, tuition stopped because Y was not well enough to engage with learning and found the sessions too intense. In response, the local authority reduced the number of weekly sessions, but Y’s mother believed it was still too intense and inflexible. In June 2021, Y’s mother started paying for virtual home-schooling provided by a national organisation. In September 2021, Y’s former (mainstream) school offered him a laptop and online streaming lessons. This also provided opportunities for interaction with classmates. When asked why on-line streaming had not been offered sooner, the local authority said it didn’t realise it was an option.
In October 2021, an educational psychologist recommended flexible access to a mainstream GCSE curriculum for Y, face-to-face and virtual learning, and adaptations allowing Y to manage activity levels depending on how he was feeling. The report also recommended seeking further advice from health professionals and teachers with relevant experience, as well as medical advice about the longer-term plan for Y.
It was also during that time that Y’s mother requested an education, health and care (EHC) plan for Y, which was refused by the local authority. Following an appeal, an assessment was carried out but the local authority decided not to issue an EHC plan. Y’s mother appealed to the SEND Tribunal which, in April 2022, ordered the local authority to prepare an EHCP for Y. This was carried out within the statutory timescales, and a personal budget and ‘education otherwise than at school’ (EOTAS) were agreed for Y.
Y’s mother complained to the Local Government and Social Care Ombudsman. In addition to alternative education provision failings, the complaint covered issues concerning Y’s EHC plan but the Ombudsman excluded this from his investigation because this had already been considered by the SEND Tribunal, meaning it was outside of the Ombudsman’s jurisdiction. (The Ombudsman examined the local authority’s compliance with the Tribunal’s order and found no fault).
The Ombudsman’s decision
The Ombudsman’s investigation revealed that local authority officers were aware that, between March and June 2021, Y was neither attending school nor receiving medical tuition at home. According to council records, online streaming was available in March 2021 and would have been an option for Y because it was introduced more broadly as part of Covid-19 arrangements.
The Ombudsman found no evidence of the local authority considering Y’s mother’s concerns about the need to adjust the tuition to make sure it was responsive to Y’s needs, for instance by introducing breaks or making the sessions shorter. This, the Ombudsman said, was not in line with statutory guidance because the local authority failed to “work productively” with Y and his mother.
The Ombudsman’s decision notes: “…there is no evidence which demonstrates those [special provision] reviews took account of the requirement in statutory guidance…to ensure provision addressed [Y’s] social and emotional needs… Given the offer was individual home tuition for one hour a week, it is unclear how this programme would have met [Y’s] needs for social interaction with peers given [the local authority] accepted he was too unwell to attend school to have social contact with his friends. It is also unclear why [the local authority] could not have checked with [Y’s school] about the existence of on-line arrangements for virtual schooling which had been made during lockdown”.
The Ombudsman concluded that failure to offer online streaming lessons sooner meant Y did not receive suitable education between March and June 2021.
The Ombudsman recommended the local authority apologise to Y and his mother, and pay £500 to reflect the loss of suitable, part-time education.
The legal framework
The remit and powers of the Local Government and Social Care Ombudsman (LGO)
The LGO is a free and independent public service regulated by the Local Government Act 1974, and responsible for investigating and resolving complaints about local authorities and adult care providers in England. The law limits the scope of LGO investigations to two types of matters: maladministration (i.e., poor performance of administrative duties) and service failure (i.e., failings in how a service is provided or failure to provide a service). The LGO cannot investigate complaints where the issue/s subject to the complaint have been appealed to a tribunal or taken to court, or where the person affected by maladministration or service failure had the right to approach a tribunal or court (‘right to remedy’) (section 26(6) of the Local Government Act 1974). However, the LGO can apply discretion and conduct an investigation in situations where the ‘right of remedy’ was not exercised despite being available (section 26(6) of the Local Government Act 1974). To learn more about the remit and powers of the LGO, please refer to appendix 3 in our guide for advocates. You may also find LGO’s internal guidance on jurisdiction useful.
The duties relating to provision of suitable, alternative education
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- Education Act 1996
Section 19 of the Education Act 1996 places a duty on local authorities (‘shall’) to make arrangements for the provision of suitable education at school or elsewhere (‘education otherwise than at school’ – EOTAS) for those children of compulsory education age who, because of illness, exclusion or another reason, can’t receive suitable education for any period of time, unless such arrangements are made for them [section 19(1)]. When deciding what arrangements to make, local authorities must have regard to any relevant statutory guidance [section 19(4A)].
Section 19(6) defines ‘suitable education’ as “efficient education suitable to [the child’s] age, ability and aptitude and to any special educational needs [the child] may have”. If, due to the child’s physical or mental health needs, full time education is not in their best interests, education can be part time [section 19(3A)(b)].
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- Statutory guidance
There are two connected statutory guidance documents for local authorities – ‘Arranging Alternative provision’ (updated 2025) and ‘Arranging education for children who cannot attend school because of health needs’ (updated 2023)
Arranging Alternative Provision: A Guide for Local Authorities and Schools
Details what suitable alternative provision includes:
- High quality education, equivalent to that provided to their peers in mainstream (or special) schools.
- Addresses the individual needs and circumstances of the child. Suitable to the child’s age, ability and aptitude, and any SEN they have.
- Focussed on enabling children to overcome any barriers to learning and to assist them back into mainstream education or into a post-16 destination.
- Delivered by high quality qualified staff with suitable training, experience and safeguarding checks.
- Provides opportunity to take appropriate and relevant qualifications, and addresses a child’s physical or mental health needs as well as personal, social and emotional needs.
Arranging education for children who cannot attend school because of health needs
Local authorities must have regard to this guidance when carrying out their statutory duty to arrange education suitable for children who cannot attend school, whether mainstream or special, because of their health.
The guidance states clearly that local authorities must not have lists of health conditions which dictate whether or not they will arrange education for children, or inflexible policies which result in children going without suitable education. Local authorities should avoid ‘hard and fast’ rules about what and how they arrange education to meet a child’s health needs as they may be inappropriate as they could limit the offer and prevent their access to the right level of educational support. The guidance is clear strict rules that limit the offer of educational provision may breach statutory requirements.
Local authorities should have processes or policies in place which support a child in getting the right and appropriate type of provision and a good education. Policies should set out how they support children and young people under and over compulsory school age access appropriate education.
All children, regardless of circumstance or setting, should expect to receive the same high standard of education – equivalent to that provided in mainstream education, as far as the child’s health allows. Education should be suitable and flexible, appropriate to their needs, and must be responsive to the demands of what may be a changing health status. Reasonable adjustments may be required.
While there is no absolute legal deadline by which local authorities must start to arrange education for children with additional health needs, the guidance states that as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the local authority should arrange suitable alternative provision.
Finally, the guidance reminds local authorities about the public sector equality duty set out in section 149 of the Equality Act 2010 to eliminate discrimination, advance equality of opportunity and foster good relations between disabled and non-disabled children.
To learn more about the public sector equality duty and other duties under the Equality Act 2010, please refer to our guide for advocates. You can also find the May 2020 issue of the legal digest useful.
You can read the full decision here: 22 006 843
Learn more about education rights and entitlements Children and young people with special educational needs and disabilities: - Special and alternative educational provision – May 2022 issue - Education health and care plans: statutory timescales – June 2022 issue - Education health and care plans: maximum duration – March 2022 issue Looked after children and care leavers: - Educational achievement of looked after children – September 2021 issue - Local authorities’ duties towards care leavers (education) – December 2022 issue
