Summary: Mrs X complained the Council failed to provide education for her child since their exclusion from school in September 2022. Mrs X also complained the Council delayed in find a new school placement for their child. We did not find fault with the Council delaying in finding a new school placement. But, we did find fault with the Council failing to provide education for Mrs X’s child for nearly a full term while it looked for a new school. The Council agreed to provide an apology to Mrs X and pay her £1,800 for her child’s missed education.

The complaint

1. Mrs X complained the Council failed to provide education for her child, who I shall call Y, since their exclusion from school in September 2022.
2. Mrs X complained the Council delayed in finding a new school placement for Y.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. (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. If we are satisfied with a council’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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I have not investigated

9. I did not investigate any matters around Y’s exclusion from school. This is because the actions of a school are outside the jurisdiction of the Ombudsman. The decision to exclude Y was a decision made by the school. Since Y’s school was an academy, the school was responsible for the review process of the exclusion and not the Council. This meant the review of the exclusion was also outside the jurisdiction of the Ombudsman.
10. I also did not investigate Mrs X’s complaint about matters since the Council produced the Final Education and Health Care (EHC) Plan on 22 March 2023. This is because Mrs X had an appeal right to the SEND tribunal about the educational placement named in the EHC Plan. When a person has an appeal right to the SEND tribunal, the Ombudsman cannot investigate the same matter.
11. The Council considered the school placement named in the final EHC Plan of 22 March 2023 as a suitable school placement. This was also the school requested by Mrs X. Since the Council made a suitable school placement available to Y, it met its duty to provide education. Any lack of education since 22 March 2023 for Y is inextricably linked to the appeal right available to her over the school placement.
12. The Council also issued its Stage 2 complaint response on 17 August 2023. Any issues Mrs X has experienced since this date would be the subject of a new complaint. The Council must be given opportunity to consider a complaint before the Ombudsman investigates.

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How I considered this complaint

13. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
14. Ms X provided comments on my draft decision. I considered her comments before making my final decision.

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What I found

EHC Plans

Rules and regulations

15. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
16. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
17. A Plan should name the school, or type of school, the child will attend. Councils must consult with schools before naming them in a child’s Plan.
18. The law says that Councils must name a parent’s preferred school in their child’s Plan, so long as the school is suitable and the child’s attendance would not be an inefficient use of resources. (Children and Families Act 2014, section 39)
19. The Council must respond to all requests for an EHCP. It must decide whether an assessment is needed within six weeks of receiving the request. The whole process from the point of request to the Council issuing the final EHCP must take no more than 20 weeks.
20. Councils must review both statements and EHC plans at least yearly. However, councils should also complete interim reviews if a child’s educational needs change throughout the year. This is to make sure any educational provision continues to meet the needs of the child.
21. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. (s20 (10) Special Educational Needs and Disability Regulations 2014)
22. Where a council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (s22 (1) & (2) Special Educational Needs and Disability Regulations 2014)
23. The Special Educational Needs and Disability Code (the Code) states if a council decides to amend the Plan, it should start the process of amendment “without delay”. (SEN Code para 9.176)
24. The council must give the parent or young person at least 15 calendar days to comment on the proposed changes. (s22 (2)(c) SEND Regulations 2014)
25. Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the final amended EHC Plan as soon as practicable and within eight weeks of the date it sent the EHC Plan and proposed amendments to the parents. (s22 (3) & (4) SEND Regulations 2014)
26. In 2022, the case of R (L, M and P) v Devon County Council said when a read proposes to amend an EHC Plan the regulation which requires the Council to notify a parent of its decision within four weeks and the regulation which set outs the process for amending the EHC Plan must be read together. This means the maximum time from the annual review meeting to final plan should be 12 weeks.
27. The Ombudsman can look at any delay in the assessment and creation of an EHCP as well as any failure by the Council to deliver the provision within an EHCP.

What happened

28. The Council produced an EHC Plan for Y naming the school, School 1, that Y attended in September 2022. School 1 permanently excluded Y in September 2022.
29. Following the review process, School 1 upheld Y’s exclusion. School 1 removed Y from enrolment on 5 January 2023.
30. Mrs X contacted the Council on 29 January 2023 to request a review of Y’s EHC Plan to seek a new school placement for Y.
31. On 10 February 2023, the Council agreed to review Y’s EHC Plan. The Council said School 1 should have made a request for an EHC Plan review but it would begin this process now on Mrs X’s contact.
32. The Council provided Mrs X with a list of possible schools for Y on request from Mrs X.
33. On 15 February 2023, Mrs X gave her preferred choice of school for Y, School 2, to the Council. Mrs X reiterated this request on 22 February 2023.
34. The Council confirmed it was consulting with this school but proposed to named School 3 on Y’s EHC Plan if Mrs X wanted a placement immediately. Mrs X responded to advise she would prefer School 2 and did not know about School 3.
35. On 22 March 2023, the Council produced a Final EHC Plan for Y naming School 2 as their educational placement in Section I.

Analysis

36. A council should complete a review of a child’s EHC Plan if a child’s educational needs change. Y’s exclusion from School 1 was a change in Y’s educational need.
37. The Council should have started the review of Y’s EHC Plan as soon as possible following Y’s exclusion from School 1. However, Mrs X took steps to appeal School 1’s decision meaning Y was not officially excluded until after the appeal process. I would not expect to see the Council review Y’s EHC Plan until it knew Y’s exclusion would be upheld.
38. Neither School 1 nor Mrs X told the Council about the upheld exclusion on 1 December 2023. I cannot find fault with the Council for being unaware of this decision.
39. However, the School removed Y from enrolment on 5 January 2023. On removing Y from enrolment, the Council should have been aware that Y no longer had an educational placement. The Council failed to take steps to complete an EHC Plan review until after Mrs X’s contact on 29 January 2023. This delay was fault.
40. While this delay was fault, this did not have an overall impact on the Council producing Y’s revised final EHC Plan within the statutory timescales.
41. There was no need for an annual review meeting for Y’s EHC Plan since the only change needed was to amend Y’s educational placement. As such, the date School 1 removed Y from enrolment can be used as the annual review meeting date. From this date, the Council had 12 weeks to produce a final EHC Plan for Y. This meant, the Council had until 30 March 2023. The Council produced Y’s Final EHC Plan on 22 March 2023 meaning it kept within this timescale. I do not find fault with the time it took the Council to produce Y’s final EHC Plan.
42. While reviewing Y’s EHC Plan, the Council also took suitable steps to consider School 3 but ultimately adhered to Mrs X’s wishes and named her preferred school, School 2.

Alternative Provision of education for children

Rules and regulations

43. 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))
44. 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))
45. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
46. 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)
47. 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)
48. 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;
• consider enforcing attendance where a child has a suitable school place available, and where there is no medical or other reason that prevents them attending;
• 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.
49. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
50. 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.
51. 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.
52. 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

53. School 1 excluded Y on 23 September 2022 and told the Council on this date it had excluded Y permanently.
54. School 1’s governing body reviewed Y’s exclusion on 14 October 2022 and confirmed its decision to uphold Y’s permanent exclusion. Mrs X told the Council about the governing body’s decision on 17 October 2022.
55. Mrs X appealed School 1’s decision in November 2022. School 1 completed an independent review on 1 December 2022 and upheld the exclusion.
56. On 27 January 2023, Mrs X contacted the Council to advise about the appeal panel’s decision to uphold Y’s permanent exclusion.
57. Mrs X lodged a formal complaint with the Council on 17 March 2023. Mrs X said School 1 had excluded Y in September 2022 and no one was providing an education for Y since this point.
58. Following naming of School 2 in Y’s Final EHC Plan on 22 March 2023, the Council told Mrs X it had been in contact with School 2 who would make contact to arrange Y’s transition into the school on a reduced timetable.
59. The Council provided a Stage 1 complaint response to Mrs X on 5 April 2023. The Council said it upheld Mrs X’s complaint. It said while it had now issued a Final EHC Plan naming School 2, providing a suitable school placement for Y, it failed to provide interim education while Y was excluded.
60. Mrs X asked for a Stage 2 complaint response on 29 May 2023. Mrs X said Y was still not receiving any education and had not attended School 2.
61. Mrs X told the Council in June and July 2023 that Y was not attending School 2 despite this being named in his EHC Plan.
62. On 17 August 2023, the Council issued its Stage 2 complaint response. The Council said:
• It upheld Mrs X’s complaint at Stage 1 that Y had not received an education since his exclusion from School 1.
• It originally wanted to name School 3 in Y’s EHC Plan but Mrs X had requested School 2.
• Since the Council named School 2 in Y’s EHC Plan, it has been responsible for providing Y with education.
• Both the Council and Mrs X had been in regular contact with School 2 to try to arrange a transition plan for Y for this school.
• It considered Y should be attending School 2 for his education.

Analysis

63. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. The duty arises after a child has missed fifteen days of education either consecutively or cumulatively.
64. The Council first became aware of Y’s absence from School 1 on 23 September 2022 following contact from the school about Y’s exclusion. While School 1 told the Council about Y’s exclusion on this date, it was not obvious Y would be absent from school for more than 15 days. This is because School 1’s governing body needed to review the exclusion.
65. Day 15 from 23 September 2023 was 14 October 2022. This was also the date School 1’s governing body upheld Y’s exclusion. I would expect to see the Council contacting the school for an update on 14 October 2022 given its duty to provide education from the fifteenth day of absence.
66. The Council failed to check with School 1. This was fault.
67. Mrs X told the Council about the governing body’s decision on 17 October 2022. The Council failed to act on this information to provide education for Y. This was also fault.
68. The Council’s section 19 duty arose when it became aware that Y would be absent from school for more than 15 days, from the sixth day of Y’s absence. This meant the Council was responsible for Y’s education from 24 October 2022 given it should have known about Y’s absence of more than 15 days on 14 October 2022. Since the 24 October 2022 was the half-term week for Y’s school, the Council should have put in place education for Y starting on 31 October 2022.
69. The Council failed to provide any access to education for Y until it named School 2 in Y’s EHC Plan on 22 March 2023. This was fault. This fault caused Y to miss just short of one full-term’s worth of education.
70. Our guidance on remedies for a 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.
71. Given Y’s missed education, the lack of educational support and the potential impact this had on Y, the Council should pay Ms X £1,800 for the lost education.
72. When the Council named School 2 in Y’s EHC Plan it considered School 2 to be an accessible and suitable school for Y’s education. This was also the school Mrs X requested as the educational placement for Y. The Council also spoke with School 2 about providing a reduced timetable for Y to help Y reintegrate into education. The Council took suitable steps to provide Y with an education on 22 March 2023.
73. As explained in paragraphs 10 and 11, I cannot investigate Y’s failure to access education from 22 March 2023.

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Agreed action

74. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Mrs X and pay her £1,800 to address the Council’s failure to provide suitable alternative provision of education for Y. Mrs X may use this as she sees fit for her child’s educational needs.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman