Summary: Miss X complains that the Council failed to meet its duty to make alternative educational provision for her daughter when she was permanently excluded from school. The Ombudsman has found no fault by the Council.

The complaint

1. Miss X complains that the Council failed to meet its duty to make alternative educational provision for her daughter (Y) when she was out of education from December 2018. She says because of the delay, Y missed three months of education and this has had a detrimental impact on her GSCE exam prospects. Miss X says she had to fight for the support that is now being provided, which involved conducting her own research, writing to the Council and initiating meetings and actions to get the issues resolved.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
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)

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How I considered this complaint

5. I considered Miss X’s complaint and spoke to her on the telephone. I made enquiries of the Council and considered its response and the documents it provided. I gave Miss X and the Council a copy of my draft decision and invited their comments. I considered all the comments I received.

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What I found

6. Councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, “by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them”. (Education Act 1996, Section 19). For children excluded from school the duty begins on the sixth school day of absence.

What happened in this case

7. I have set out below a brief chronology of events. It is not intended to show everything that happened.
8. Y was in year 11 at School A. On 17 December 2018, the school permanently excluded Y and informed the Council.
9. On the same day the Council informed Miss X that it would be approaching a pupil referral unit (PRU) and two other education providers in the local area, to secure a placement for Y. Miss X asked the Council not to approach the PRU because it was not a suitable placement for Y. She said that the two other options were also unsuitable.
10. The Council also offered four hours home tuition to Y in the interim period. Miss X said that tuition time of more than four hours would be ‘tricky’ on the basis that she could not go to work and be at home at the same time. The Council contacted the tutoring service and asked if it could provide tutoring to Y and her sister, who was already receiving tuition at home, at the same time in order to minimise disruption to Miss X. This was agreed.
11. The Council’s records show that it recognised that it needed to reduce the time Y spent out of education and therefore proceeded with an application to the PRU.
12. On 20 December 2018 the Council wrote to Miss X. The letter said:

“As previously explained, it would be difficult to place [Y] in another mainstream school at such a late stage in year 11 should an appeal for reinstatement at [School A] be rejected, as it would be difficult to match exam options. Ordinarily at such a stage in a young person’s education we would approach [PRU] but we recognise that this may not be your preferred option and we also offered to consult with [two other education providers] both of which you declined.

Once again, you are able to apply to another mainstream provider and this would be considered under the fair access protocol and should another school agree to take [Y] we would support this. However due to limited spaces and exam options we still feel it appropriate to pursue our application for [PRU] for her.

Arrangements are being planned for tuition so that both girls receive the same tutor and a level of continuity”.

13. On 4 January 2019, tuition was increased from four hours to six hours. The Council explained that it recognised Miss X’s concerns about the level of education provision for Y and the exams she was due to take in May 2019. It had offered to increase the number of hours of tuition to ten hours, but Miss X declined this due to work commitments.
14. On 17 January 2019, the PRU agreed to allocate Y a place on a trial basis. It said if this did not work it would offer tuition to cover english, maths and science. The PRU could not match any of the exam boards that Y had been entered for but said it would work with School A in order to help Y. Miss X declined the offer.
15. On 22 January 2019, the Council contacted the Oxford, Cambridge and RSA (OCR) exam board and requested information of local centres that provided the exams that Y needed to sit. The Council contacted ten schools and two exam boards in an attempt to match the provision with Y’s exams. The Council said that “all provision either could not match the exam boards [Y] was due to take and a combination of schools which could have met some of the exam board were rejected by the parent”.
16. On 28 January 2019 the Council contacted School B and asked for information on GCSE science. School B said it could offer a bespoke package for Y to complete the science exam. This was rejected by Miss X on the basis that it was not a higher-level paper and the qualification would not reflect the work that Y had done over the last five years at School A. The Council told Miss X that Y had the option to take some of her exams in year 12.
17. On 29 January 2019, Miss X sent an email to the Council, stating that any provision provided should be on the basis that Y would take nine GCSE’s as planned that year. She said that the Council held full responsibility for Y’s education after permanent exclusion, six weeks ago, and should provide her with appropriate full-time education.
18. On 12 February 2019, the Council was notified that the independent review panel had quashed the exclusion and had asked School A to reconsider its decision.
19. On 15 February 2019, Miss X requested that the Council provide her with an action plan for Y. The purpose of the plan was to ensure that ‘everything was in place for [Y] to take her exams and have appropriate support in place to support her revision timetable’. An action plan was sent to Miss X two days later. Miss X said that the plan did not provide a timeline and did not demonstrate commitment from the Council.
20. On 28 February 2019, Miss X contacted the Council and requested funding for tutoring she had sourced for biology and english. This was agreed by the Council and tuition hours were increased from six hours to eight hours.
21. On 5 March 2019, School A informed the Council that the governors ‘decided unanimously against reinstatement’ and were therefore upholding the decision to permanently exclude Y. However, it agreed to make off-site arrangements for Y to sit her exams as an external candidate. Miss X was satisfied with this.
22. On the same day Miss X met with the Council and discussed the action plan for Y. The plan was amended, and a draft copy was sent to Miss X on 8 March 2019. Miss X had the opportunity to comment on the plan before it was finalised on 11 March 2019.

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Analysis

23. The Education Act 1996 as amended says councils must offer full-time educational provision for permanently excluded children from the sixth day after the exclusion. School A permanently excluded Y on 17 December 2018.
24. The evidence I have seen shows that on the same day the Council told Miss X that it would approach a PRU and two other options in the local area, but Miss X declined the Council’s proposals. This is not fault by the Council. The evidence shows Miss X took the view that a PRU was not suitable for Y and all three options could not offer advanced teaching as Y was very academically able. It is not for me to comment on the suitability of the placements.
25. The evidence the Council has supplied showed it offered a range of one-to one tuition from Y from December 2018. The Council agreed ten hours private tuition for Y in January 2019, but this was declined by Miss X. This is not fault by the Council. Miss X initially agreed to four hours and over a period of eight weeks this was increased to six hours then eight hours.
26. The evidence shows that the Council made further attempts to secure alternative educational provision so that Y could sit her exams. It acknowledged that it was proving difficult to match exam options. Where it did identify a combination of schools which could have met some of the exam boards, they were declined by Miss X. This is not fault by the Council.
27. Miss X is of the view that the Council should have agreed and implemented an action plan for Y sooner. There is no statutory requirement for the Council to produce an action plan and therefore I cannot find fault in the process. Even if the action plan had been produced sooner, I cannot say that alternative provision would have been secured sooner, because the Council had made several offers of provision, which Miss X had declined.
28. I appreciate that Miss X feels strongly that the Council failed to meet its duty to make alternative educational provision for her daughter, within statutory timescales. The Council’s duty was to offer suitable full-time education for Y from the sixth day. For the reasons stated in paragraphs 23 to 28, I find the Council met that duty and do not find it at fault.

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Final decision

29. I find the Council met its statutory duty to offer suitable full-time education to Miss X’s daughter. I do not find the Council at fault and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman