The Ombudsman's final decision:
Summary: Ms X complained that the Council failed to provide suitable education for her daughter when she was permanently excluded from school. The Ombudsman has not found that the Council was at fault as it made offers of education through its alternative provision service which Ms X and her daughter did not take up.
- Ms X complained that the Council has failed to ensure that her daughter received a suitable education after she was permanently excluded from her school. As a result she says her daughter has had no education for a year.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
- 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)
- 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)
How I considered this complaint
- I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on providing education. I shared my draft decision with the Council and the complainant and considered their responses.
What I found
- Local authorities have a duty to arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such provision. (Education Act 1996, section 19)
- Where a child has been permanently excluded local authorities must provide full-time education from the sixth day of the exclusion.
- Parents have a duty to ensure their children of compulsory school age are receiving suitable full-time education. (Education Act 1996 section 7)
- Where a council it is not satisfied a child is receiving suitable education and it considers the child should be attending school, it may take legal action to enforce attendance. This may be through court orders, penalty notices or prosecution. (Education Act 1996, section 444) The Council’s Education Welfare Service is the service responsible for this action.
- A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The council decides whether to issue an EHC Plan following an EHC assessment. The council has six weeks to decide whether to carry out an assessment if a parent asks for one. It should complete the assessment and issue the Plan, if it decides to do so, within 20 weeks. Parents may appeal against a decision not to issue an EHC Plan.
- Ms X has a daughter, Y, now aged 15. Y was permanently excluded from her mainstream school, School 1, in October 2017. The decision letter from the School told Ms X her daughter had a place at the local Pupil Referral Unit (PRU) which she had to attend from the sixth day following the exclusion.
- Ms X decided not to send Y to the PRU while she pursued an appeal against the exclusion. She appealed to the School’s governing body, which upheld the exclusion in mid-November 2017. Ms X then appealed to the Independent Review Panel. The Panel upheld the original exclusion decision on 20 December 2017.
- A member of staff from the PRU visited Ms X and Y at home in January 2018. The Council says they refused all offers of provision from the PRU or any of its other sites.
- The Council then offered Y a place at its alternative provision site (‘AP1’). This offers full-time education with courses leading to mainstream qualifications. The Council says Ms X agreed to the placement but Y only attended once.
- In February 2018 Ms X wrote to the City Mayor complaining that Y was out of education. The Council referred the matter to the Education Welfare Service (EWS) to look into and then provided a written response to the complaint. The EWS Manager contacted the PRU and was told about the referral to AP1 and that Y had not attended there or the PRU. The PRU said Ms X told them Y could not travel independently and she did not consider the provision suitable. The PRU said Y had said she did not want to attend any alternative provision or activities. She wanted to go back to School 1. The PRU had explained to Y and Ms X that this was not possible as she had been permanently excluded. There had been a Child in Need meeting in early February which agreed that the PRU would look into a referral for some home tuition through another part of the Council’s PRU service which caters for children and young people out of school because of physical and mental health problems. I will refer to this as ‘the Centre’.
- The PRU made the referral for home tuition on 16 February 2018. On 19 April 2018 the Centre told the Council it had tried to call Ms X a few times and left messages for her to contact the Centre. The PRU also spoke to Ms X over the telephone, advising her to contact the Centre if she felt home tuition would be helpful for Y and giving her the contact number. The Council says at the next Child in Need meeting Ms X said she had called the Centre once and left a message but no-one had got back to her. The Council advised that she needed to take an active role in pursuing the matter. Ms X says she called more than once and left messages, but did not feel it was her role to keep chasing.
- In early March 2018 Ms X asked the Council to carry out an EHC assessment for her daughter. The Council’s SEN Panel agreed to the request on 26 March and the Council started the assessment.
- In the meantime, on 13 March 2018, the EWS Manager visited Ms X at home. Ms X said she would not send her daughter to the PRU even though she had been warned of the possibility of legal action against her for non-attendance. The EWS Manager advised that Y should attend the PRU. This would allow for an assessment to take place and the Council would be able to consider a return to mainstream schooling. The EWS Manager explained again that Y could not return to School 1 because she had been permanently excluded. The Council says Ms X and her daughter would not consider any other option. The EWS Manager reported back to the PRU and the social worker involved in the Child in Need meetings and advised that the Council should consider some alternative provision.
- Around ten days later the Council allocated Y a place at the Centre. Ms X says she did not know about this decision.
- At the beginning of May 2018 the EWS Manager attended a further Child in Need meeting. The meeting agreed that Y could attend an alternative provision activity centre (‘AP2’) one day a week as part of phased re-integration to the PRU. The Council says Y only attended once when a member of staff took her. Although the Council offered transport for further sessions at AP2, it says Y refused to go several times and it stopped the transport.
- Ms X made a further complaint to the City Mayor in May 2018 which was referred to the EWS to consider.
- The EWS Manager visited Ms X again at the end of May 2018. Y said there was only one placement she would attend, School 2. Ms X said she had applied for a place there and was waiting for a decision. She also explained that she was waiting for a decision following the EHC assessment as to whether the Council would issue an EHC Plan for Y.
- The Council responded to Ms X’s complaint in June 2018. It said it had met its duty towards Y by offering her a place at the PRU. It acknowledged that Ms X felt the provision was not suitable for her but explained that this is the provision the Council has for pupils who have been permanently excluded from a mainstream school. It referred to the attempts to get Y to attend the PRU and the support offered and considered it had taken appropriate measures to support Y.
- In early June the Council’s SEN Panel decided that Y’s learning needs did not require an EHC Plan. It decided her needs could be met through mainstream provision with some additional support.
- The SEN caseworker discussed the decision with Ms X. Ms X was concerned about whether Y would be able to reintegrate into mainstream school. There were further discussions in the SEN Team and with the EWS. The Council’s view was that Y should attend the PRU at its specialist site (‘PRU2’) and then reintegrate into a mainstream school with extra support. In July 2018 the Council confirmed its decision that this was the plan for Y.
- After Y continued to refuse to attend PRU2, the EWS manager offered to take Y there and back but the Council says the family did not take up the offer. The Council took the view that the only avenue left would be to prosecute Ms X for Y’s non-attendance in the next academic year. However in September the PRU contacted the EWS to ask it not to take this route as it did not think it would be beneficial for Y.
- Ms X was not happy with the decision not to issue an EHC Plan and went to a mediation meeting in mid-August 2018 to discuss the decision. The Council explained the reasons for its decision and gave the view that the best way forward would be for Y to attend PRU2 for at least six weeks so staff could assess whether a reintegration to mainstream school was appropriate and what support Y would need. Ms X did not appeal against the decision not to issue an EHC Plan.
- She asked the Council to take her complaint to stage 2 of the complaints process. The Council’s response was that it had complied with its statutory duty to provide a placement for Y at the PRU and then offered appropriate alternatives. Ms X and Y had refused all offers.
- During August 2018 the Council continued to suggest ways of encouraging Y to attend PRU2. PRU2 arranged for a member of staff to see Y at home at the beginning of the next term in September. From September 2018 visits took place. The Council also arranged home tuition from the Centre from the beginning of October 2018.
- In mid-December Y began to attend PRU2 part-time. Currently there is a transition programme in place with the aim that the home tuition will end and Y will attend PRU2 full-time.
Analysis – was there fault by the Council causing injustice?
- The Council offered Y full-time alternative education provision at the PRU from the sixth day of her exclusion, in line with its statutory duty. Ms X decided not to send her daughter there while she pursued her appeal. After she lost the appeal, the Council offered education through another part of its alternative education service, AP1. Ms X at first accepted this but then Y did not attend.
- The Council continued to offer education at its other specialist PRU sites, as well as home tuition through the Centre. It responded promptly to Ms X’s request for an EHC assessment. It carried out the assessment within the required timescale. It offered Ms X mediation and the right of appeal when she did not agree with the decision not to issue an EHC Plan.
- During this time there is evidence that Ms X and her daughter insisted that Y would only accept a placement at School 1. The Council explained that this was not possible. The Council listened to Ms X and Y’s view that she wanted to attend a mainstream school. It explained that she needed to attend the PRU first in order to assess her needs with a view to reintegrating her back into mainstream education. The Ombudsman cannot interfere with this judgment which was based on the professional opinion of education officers in the Council’s Education Welfare, alternative provision and SEN services. Ms X did not provide any medical evidence indicating that Y could not attend any educational provision at all. The Council considered taking enforcement action but decided to try and continue to engage with Y instead to encourage her to accept the education offered.
- So in my view the Council fulfilled its initial duty in offering the PRU placement and then took appropriate action to offer alternative provision when Y refused to attend. It might have been possible for the Council to offer home tuition earlier. But given Ms X and Y’s refusal to engage with the provision offered I could not say this would have resulted in her receiving education earlier.
- Y was out of education for around a year. But the evidence does not suggest this was a result of fault by the Council. Once Y took up the home tuition and the place at PRU2 the Council offered, she is now on a path to re-engaging with full-time education. This will allow the Council to start preparing her for reintegration into mainstream schooling if appropriate. If Ms X and Y had taken up the education offered earlier she would not have missed out and might have been able to access mainstream education sooner.
- The Council could also have decided to take action against Ms X for her daughter’s non-attendance at school. But this is not a course Ms X would have wanted the Council to take and so the decision did not represent an injustice to her.
- I have not found that the Council was at fault in the way it dealt with Y’s education after she was permanently excluded. Ms X did not accept the education offered to Y and I do not consider the lack of education was a result of fault by the Council. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman