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
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
- 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)].
- Statutory guidance
There are two connected statutory guidance documents for local authorities – ‘Alternative provision’ (2013) and ‘Ensuring a good education for children who cannot attend school because of health needs’ (2013).
Alternative provision: statutory guidance for local authorities (2013) defines ‘good alternative provision’:
“Good alternative provision is that which appropriately meets the needs of pupils which required its use and enables them to achieve good educational attainment on par with their mainstream peers. All pupils must receive a good education, regardless of their circumstances or the settings in which they find themselves. Provision will differ from pupil to pupil, but there are some common elements that alternative provision should aim to achieve”. (Paragraph 30)
The ‘common elements’ include good academic attainment with appropriate accreditation and qualifications; Identification and meeting of the specific personal, social and academic needs of pupils to help children overcome barriers to attainment; supporting children’s self-confidence, attendance and engagement with education; and clearly defined objectives for future education, training or employment.
Local authorities must have regard to this guidance when carrying out their statutory duty to arrange education suitable for children who are unable to attend school, whether mainstream or special, because of their health. When making decisions, both individual and policy-level, local authorities should “demonstrate that they have considered this statutory guidance and, if they do not follow it, have reasonable grounds for deciding not to do so” (page 3).
The guidance states clearly that local authorities should not:
– Have processes or policies in place which prevent a child from getting the right type of provision and a good education.
– Withhold or reduce the provision, or type of provision, for a child because of how much it will cost (meeting the child’s needs and providing a good education must be the determining factors).
– Have policies based upon the percentage of time a child is able to attend school rather than whether the child is receiving a suitable education during that attendance.
– 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 full-time education (or as much education as their health condition allows them to participate in). [Pages 4-5]
The guidance also states that:
– Alternative education provision should address children’s health, behavioural, social and emotional needs through “an appropriately tailored approach”. Children should be supported to keep in contact with classmates and feel a part of the school community. [Para 5]
– Local authorities, schools, and other services should work together constructively with a focus on outcomes and children’s best interests. [Para 5]
– Education provided to children unable to attend school because of health needs should be flexible, suitable and appropriate to their needs, and provided in a manner which responds to changing health needs (where relevant). [Para 7]
– The use of ‘virtual classrooms’ and other electronic learning platforms should be generally seen as complementing rather than replacing face-to-face education. [Para 8]
– While there is no ‘absolute legal deadline’ by which local authorities must begin to provide education to children unable to attend school due to health needs, they should “arrange provision as soon as it is clear that an absence will last more than 15 days” and this should be done “at the latest by the sixth day of the absence, aiming to do so by the first day of absence”. Where absence from school due to health needs is planned, “local authorities should make arrangements in advance to allow provision to begin from day one”. [Para 15]
– The active participation of children, young people and parents/carers (including local authorities as corporate parents for looked after children) is vital. Children should be involved in decisions from the start, in line with and in a manner which reflects their age and maturity. [Para 20]
– Local authorities should work in partnership with schools to ensure that each child returning to school after receiving education at home or elsewhere (which is referred to as ‘reintegration’ in statutory guidance) has an “individually tailored reintegration plan”. In line with the duties under the Equality Act 2010, schools must consider whether they need to make any reasonable adjustments to provide suitable access for the child. [Para 25]
– When, due to medical treatment, the child’s family has to move nearer to a hospital and there is a sibling of compulsory school age, the local authority into whose area the family has moved should provide support to find a school place for the sibling (subject to availability). [Para 29]
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