Birmingham City Council (18 009 193)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 14 May 2019

The Ombudsman's final decision:

Summary: The Council was at fault for failing to arrange education for Mrs B’s son for 19 weeks after he was permanently excluded from school. The Council has agreed to apologise to Mrs B and to make a payment of £2,650 to recognise the injustice caused.

The complaint

  1. The complainant, whom I refer to as Mrs B, complains about the Council’s provision of education to her son after he was permanently excluded from school. I refer to her son as C.
  2. Mrs B also complains about the Council’s refusal to assess C for an education, health and care (EHC) plan.

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What I have investigated

  1. I have investigated the Council’s educational provision for C after his permanent exclusion in October 2017.
  2. The final paragraph of this decision statement sets out why I did not investigate other matters.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  4. 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)
  5. 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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How I considered this complaint

  1. I spoke to Mrs B about her complaint, and considered information from Mrs B and the Council.
  2. I wrote to Mrs B and the Council with my draft decision and considered their comments.

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What I found

  1. Section 19 of the Act requires councils to provide suitable education 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”.

  1. Section 444 of the Act says councils have the power to take legal action against parents who do not ensure their child’s attendance at school. Section 444ZA of the Act says this power extends to alternative educational provision.

The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007

  1. Regulation 4 says councils must arrange education for permanently-excluded pupils from the sixth day of exclusion.

Fair Access Protocols: Principles and Process

  1. This document provides guidance to councils and schools to ensure that fair access protocols work effectively.
  2. The guidance says the purpose of fair access protocols is to ensure that – outside the normal admissions round – unplaced children, especially the most vulnerable, are found and offered a school place quickly, so the time any child is out of school is kept to the minimum.
  3. The guidance says every council should have a fair access protocol, and schools (including academies) should work together collaboratively, taking into account the needs of the child and those of the school.

What happened

  1. C’s school permanently excluded him in October 2017, and the review panel upheld the exclusion in December 2017. The Council referred C to a pupil referral unit (PRU) to receive education.
  2. Mrs B told the Council that she did not want C to attend the PRU. In January 2018, she said she had enrolled him at a private school.
  3. In mid-February Mrs B told the Council that she could not afford the private school fees, so had withdrawn C from the school. She asked the Council to arrange elective home education (which is for parents who choose to educate their children at home rather than at school).
  4. In late February the Council’s elective home education team met with Mrs B, who said C’s home education was not working. She said she wanted him to go back to school.
  5. On 1 March the Council referred C to its Fair Access team. It appears that the Council’s aim was to find a new school for C under its fair access protocol.
  6. At this point, C was not receiving an education, although Mrs B says she was spending £140 per week on home tuition.
  7. In August the Council contacted the PRU and asked for C to be put on its waiting list. It said local schools would not accept permanently-excluded children unless they had completed a reintegration programme at the PRU.
  8. The Council also emailed Mrs B in August and told her that C could not return to school unless he had been to the PRU first. It said that, if she refused a place at the PRU, she would be responsible for arranging C’s education and, if she did not make such arrangements, the Council may seek a School Attendance Order. It said the PRU was likely a short-term solution and it advised Mrs B to contact the PRU to discuss C attending.
  9. The Council contacted the PRU again in September, and suggested that it should have referred C to the PRU’s waiting list earlier in the year.
  10. Mrs B and C visited the PRU, and C started full-time attendance on 17 September.
  11. On 18 September the Council accepted (in correspondence with Mrs B’s MP) that it should have referred C to the PRU in March 2018.

Analysis

  1. Councils have a duty to provide permanently-excluded children with education from the sixth day of exclusion. It is for the Council to decide what education is suitable, although it should be full-time, unless the physical or mental health of the child is such that full-time education would not be in his or her best interests.
  2. The Council referred C to the PRU when he was excluded, but Mrs B refused the placement, saying it was unsuitable. She then enrolled C at a private school, before withdrawing him and asking for elective home education. On 28 February 2018, she told the Council that home education was not working, and asked for C to attend school again.
  3. If there is no suitable education available to a child, then the Education Act 1996 requires that councils arrange an alternative.
  4. However, if a council has arranged education for a child which is suitable and available, but – for whatever reason – the child is not making use of that education, it does not necessarily mean the council is under a duty to arrange an alternative.
  5. Up to the end of February 2018, the Council arranged a placement for C which it considered suitable, but Mrs B refused the placement and then decided to make her own arrangements. This was Mrs B’s decision, so the Council was not at fault up to the end of February.
  6. On 1 March the Council referred C to its Fair Access team, with the view to finding a school placement. However, it says local schools will not accept permanently-excluded children unless they have been to the PRU first.
  7. Until a new school placement was found, the Council was under the duty to educate C. It had already decided that the PRU was suitable and – particularly given that prior attendance at the PRU seems to be necessary to find a new school place for permanently-excluded pupils in the Council’s area – it should have re-referred C to the PRU in March 2018.
  8. The Council did not do so, and C received no education from March to September 2018 (a teaching period of 19 weeks, accounting for school holidays), other than home tuition paid for by Mrs B while she waited for a school place to become available.
  9. This was fault by the Council. Although Mrs B had previously refused a placement at the PRU, as soon as the Council told her it was the only option for C (and told her it could seek a court order if she refused), he began attending within a matter of days.
  10. I have seen no evidence that Mrs B refused, or would have refused, the PRU referral in March, after private school and home education had not worked. If she had done this the Council would have had the choice to either make alternative arrangements or seek a court order to ensure C’s attendance at the PRU. The Council took neither of these courses of action.
  11. The Ombudsman’s guidance on remedies suggests that we would usually recommend between £200 and £600 per month of education missed because of maladministration. Given that, for 19 weeks, C received no education from the Council at all, it should make a payment to Mrs B which is calculated at the top of that scale.
  12. 19 weeks of missed education, at the rate of £600 per month, is around £2,650. The Council should make a payment of this amount. This also covers Mrs B’s tuition costs for the same period.

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Agreed actions

  1. The Council has agreed to apologise to Mrs B for failing to arrange education for C for 19 weeks after he was permanently excluded.
  2. The Council has agreed to make a payment of £2,650 to Mrs B to recognise its failure to arrange education.
  3. These actions should be completed within six weeks of the date of this decision statement.

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Final decision

  1. The Council was at fault for failing to arrange education for C for 19 weeks after he was permanently excluded from school. The agreed actions remedy the injustice caused.

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Parts of the complaint that I did not investigate

  1. I did not investigate Mrs B’s complaint about the Council’s refusal to assess C for an EHC plan, because she appealed this to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman

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