Alternative Education Provision
30 January 2023
Local Authorities are at risk of fines where there is a failure to implement alternative education. When a child cannot attend school for whatever reason, the local authority has a legal obligation to assess and provide alternative education to ensure that a child is provided with a suitable education to meet their needs. Many cases involve children with special educational needs. Still, the Local Government and Social Care Ombudsman are seeing an increasing number of children left without education and unable to attend school because of significant social anxiety.
Alternative education that meets the child’s needs must be set up as soon as possible and is crucial to ensure that they do not fall behind their peers. In 2022 an investigation by the Local Government and Social Care Ombudsman found that Oxfordshire County Council failed to explore alternative education for a child with autism after he stopped attending in June 2021, when he became too anxious to attend his primary school. From July 2021 to February 2022, the school and an independent social worker reiterated to Council that the school could not meet the child's needs and that he was not accessing the online provision and that the child needed alternative provision as soon as possible.
The Council argued that the child had received appropriate online education after the child stopped attending. On investigation, the Ombudsman found what was on offer was not appraised by the local authority; and, in any event, was not enough to meet the child’s specific needs and was not based on assessment. As a result of what was found to be failure and delay, the child did not receive any form of state education between February and 26th June 2022. In addition, The Council had agreed to carry out an EHCP assessment, but this was delayed by over six months. The Ombudsman were not sympathetic to arguments by the Council that a national shortage of Educational Psychologists caused this delay. Although caused by external factors, the Ombudsman found fault.
Further, the Ombudsman report found that the stage one complaint was not handled correctly when the Council requested medical evidence to show why the child could not attend school. This approach is contrary to guidance which states a council must make alternative provisions where a child cannot attend school for any valid reasons, not just medical needs, which involved significant delay and poor communication.
The Ombudsman recommended that the Council compensate the family with a combined sum of £5,000 for the failure to provide the child with suitable education and with a further £2,200 to reimburse the cost of the Educational Psychologist commissioned by the family because of the delays.
We further comment that, increasingly, such situations can result in successful claims of judicial review, including potential awards of compensation under the Human Rights Act 1998.