Summary: Miss X complains the Council failed to provide her child, Y, with alternative provision when he was permanently excluded from school. We have found the Council at fault for not providing provision to Y. The Council has agreed to our recommendations to remedy the injustice caused by the fault.

The complaint

1. The complainant, who I shall refer to as Miss X, complains the Council failed to provide alternative education to her son, Y, after he was permanently excluded from school.
2. Miss X also complains the Council has delayed finding him another school and it has refused to issue Y with an Education, Health and Care (EHC) Plan.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. If we are satisfied with an organisation’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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have not investigated Miss X’s complaint about the Council’s decision to not issue Y with an EHC Plan because as stipulated above at paragraph 5, such a decision has a right of appeal to the SEND Tribunal and Miss X has used this right of appeal.

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How I considered this complaint

9. I considered Miss X’s complaint and the information she provided.
10. I considered the information I received from the Council in response to my enquiries.
11. Miss X and the Council had the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.

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What I found

Law and statutory guidance

Education, Health and Care (EHC) Plans

12. Children with special educational needs may have an Education, Health and Care (EHC) Plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to secure special educational provision in an EHC plan (Children and Families Act 2014, Section 42).
13. Statutory guidance ‘Special Educational Needs and Disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The Code is based on the Children and Families Act 2014 and the SEND Regulations 2014. It says:
• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing a child’s needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable; and
• the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.
14. As part of the EHC assessment councils must gather advice from relevant professionals (SEND 2014 Regulations, Regulation 6(1)). This includes advice and information from an Educational Psychologist (EP). It must also seek advice and information from other professionals requested by the parent, if it considers it is reasonable to do so. Those consulted have six weeks to provide the advice.
15. 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. The appeal can be against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued. We cannot direct changes to the sections about the child’s special educational needs, special educational provision, or name a different school. Only the tribunal can do this.
16. 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).

Alternative Education

17. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those 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” (Education Act 1996, section 19(1)).
18. 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)).
19. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
20. The education provided by a council must be full-time unless a 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).
21. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016).
22. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
23. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
24. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
25. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
26. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

What happened

27. At the time of Miss X’s complaint, Y was 5 years old and in Reception. Y was permanently excluded from School 1, a mainstream school in May 2023. Y was diagnosed with Autism and Miss X requested an EHC Needs Assessment.
28. On 18 May 2023, the Council decided not to issue Y with EHC Plan. It said that based on the statutory assessments it carried out, it considered Y’s needs could be met from within school’s SEN budget and without the need for an EHC Plan. Miss X exercised her right to appeal the Council’s decision to the SEND Tribunal.
29. Following Y’s permanent exclusion in May 2023, Miss X complained to the Council about it not providing him with a suitable school place.
30. The Council responded to Miss X’s complaint and acknowledged it had a duty to provide educational provision from the 6th day following exclusion, but it had discharged that duty to a Multi-Academy Trust (Company 1) and for that reason funding was not available for private tuition. The Council said Company 1 did not have any available places but it still remained the Council’s ‘Day 6 provision for permanent exclusions’.
31. Company 1 had already notified the Council in September 2022 that they were at full capacity due to a significant increase in permanent exclusions.
32. In June 2023, the Council advised Miss X that it could not provide any further information regarding a plan for Y and that senior managers were aware of the issue and they were working towards a resolution.
33. The Council decided to place Y in a mainstream school and sought placements within its area. This was not possible due to the local primary schools already at maximum infant class size. The Council sought a school placement for Y at schools in nearby towns and in June 2023, it found a place at School 2.
34. On 5 July 2023, School 2 requested funding from the Council to ensure they could provide Y with the right support to make his transition successful. School 2 requested the funding to be in place before they accepted Y.
35. On 11 July 2023, the Council agreed to provide the funding to School 2. The school term ended on 21 July 2023 and School 2 was closed for the summer until 31 August 2023.
36. Y’s placement at School 2 started on 13 September 2023.

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Analysis

37. In cases where a child is permanently excluded from a school, the law is clear that provision must be arranged for the child from the sixth day after the exclusion. In this case, Y was permanently excluded on 5 May 2023 and he did not receive any provision until his place at School 2 commenced on 13 September 2023. This is fault.
38. The Council has told me that to comply with its statutory duty to provide education to Y from day 6 of his permanent exclusion, it referred him to Company 1. Miss X was advised after a pre-admissions meeting that Company 1 was unable to provide any provision because it had no places available. The Council says Company 1 were contractually obliged to provide the Council’s Day 6 provision for permanently excluded children and the Council informed Company 1 that it expected them to take steps to ensure they could provide suitable Day 6 provision for all children who are permanently excluded.
39. The Council has advised me it was standard practice to refer Y to Company 1 because they are the Council’s commissioned service provider and the contractual arrangement enabled the Council to discharge its statutory duty in respect of Day 6 provision. However, the Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135).
40. The Council should have retained sufficient oversight and control to ensure its duties were properly fulfilled. Therefore, the Council is at fault because it should have been aware Company 1 were at capacity before a pre-admissions meeting was arranged and it should have arranged alternative provision for Y that was accessible. This fault caused unnecessary delay in arranging provision and inconvenience for Miss X and Y for pursuing provision at Company 1 when it was not a viable option.
41. After Company 1 advised it had no places, I have not seen evidence the Council made any effort to arrange alternative provision for Y. Instead, the Council refused Miss X’s request for funding private tuition and Y went without any provision for the equivalent of a whole term.
42. It is acknowledged the Council was trying to find a new school for Y which took longer than anticipated because the schools local to Y were full and so it had to look further afield, but the Council should still have arranged alternative provision whilst it was trying to find a school place.
43. The Council has since reviewed the arrangement it has with Company 1, implemented recommendations and reviewed the educational provision it has available for children in its area. Although this action is welcomed, the evidence shows Company 1 notified the Council in September 2022 of the problems relating to capacity but the Council commenced work to explore why there were no places for permanently excluded children in June 2023. It is likely that had this work commenced sooner, i.e. when the Council was notified of the issues in September 2023, Y would have received the provision he was entitled to in May 2023 and the injustice to Y and Miss X could have been avoided.
44. Overall, Y did not receive any provision for 11 weeks. The average school term has 12 to 13 weeks. Our guidance on remedies for loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.

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Agreed action

45. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise to Miss X and to Y for the injustice caused by the identified faults;
• Pay Miss X £500 to recognise the distress caused by the Council’s avoidable failure to arrange ‘Day 6’ provision; and
• Pay Miss X £1500 for the 11 weeks Y did not receive any provision. I recommend Miss X should use this payment for the benefit of Y.
46. The Council should provide us with evidence it has complied with the above actions.
47. I did not recommend any service improvements due to the work the Council has undertaken since 5 June 2023 to increase capacity for Day 6 provision in its area, the strategies it has implemented to support schools in rethinking exclusions, the actions it is currently undertaking to ensure it fulfils its statutory Day 6 duty and supporting the reintegration of children back to a mainstream setting in a timely way. The Council is also in the process of sourcing a new alternative provision provider.

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Final decision

The Council is at fault for failing to arrange provision for Y when he was permanently excluded from school. Y did not receive any provision for 11 weeks. The Council has agreed to remedy the injustice caused to Miss X and to Y therefore I have completed my investigation and closed this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman