Summary: Miss X complains the Council failed to provide suitable education to her son Y following his exclusion. The Ombudsman finds the Council at fault and recommends it provides an apology and makes a payment for loss of education.

The complaint

1. Miss X complains the Council failed to provide suitable education to her son Y following his exclusion. Y has missed education and she has suffered stress managing with a child at home alongside work and other commitments.

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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. 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.
5. 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

6. I spoke to Miss X and I reviewed documents provided by Miss X and the Council. I gave Miss X and the Council the opportunity to comment on a draft of this decision.

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What I found

7. Parents can ask for a review of a school’s decision to exclude. An independent appeal panel carries out the review.
8. Where a school excludes a child for a fixed period longer than five days it is responsible for arranging alternative educational provision for that child. However, if it excludes a child permanently, the duty to make alternative educational provision falls on the local council.

Right to Education

9. Section 19 of the Education Act 1996 says councils must make suitable educational provision for children of compulsory school age who, because of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made for them.
10. The council should provide educational provision from the sixth day following the exclusion.
11. The provision can be at a school or otherwise, but it must be suitable for the child’s age, ability and aptitude, including any special needs. The only exception to this is where the physical or mental health of the child is such that full-time education would not be in his/her best interests.
12. Full time education is usually between 22 and 25 hours per week unless it is clear a child cannot cope with full time education. The law allows councils to view 1:1 provision as worth more than provision delivered in groups.

What happened

13. Y attended a mainstream primary school. On 27 March 2019, Y’s school told the Council it had permanently excluded him. The Council says it contacted an Academy on the same day, however it had no space.
14. On 28 March the Council told Miss X the Academy could not take Y and it would look for alternative provision. The Council says it made a referral to an education provider, Company A, the same day.
15. There is no evidence the Council then followed up with Company A or updated Miss X, before Miss X chased the Council for a response.
16. On 15 May Miss X called the Council to complain Y was still out of education.
17. The Council says it then made attempts to contact Company A. On 31 May 2019 Company A told the Council it could not support Y.
18. On 3 June the Council made a referral to another education provider, Company B.
19. On 5 June Miss X complained to the Council that Y was out of education and there had been poor communication.
20. I note Company B began supporting Y from 12 June 2019.
21. In response to Miss X’s complaint, the Council outlined its contact with companies A and B. It accepted it should have provided education to Y from the sixth day of exclusion and apologised that it did not do so. The Council said it would review its processes considering the concerns Miss X raised.
22. When I spoke to Miss X she said Y received 1 hour’s tuition per day up to 17 September 2019, however, she was unhappy with the quality of the tuition offered. Y started a long term placement from 18 September.
23. In response to enquiries the Council said it made many attempts to chase Company A until it finally responded on 31 May 2019. It had since discussed the matter with Company A to prevent recurrence. It had also launched a new procurement system in April 2019 which would enable it to source educational support more efficiently in future.
24. The Council explained it funded 3 hours’ 1:1 tuition for Y per day. It also provided information from Company B about its tuition service.
25. Company B explained Y’s EHCP, issued in May 2019, emphasised the need to incorporate games into Y’s learning. It said Miss X agreed for the tutor to use play to build rapport with Y before introducing formal learning. Weekly reports show the tutor intended to start with one hourly sessions per day with a view to increasing the hours over time. The reports show Y was initially reluctant to engage and only became keen to extend his time with the tutor in the final sessions before his placement started.

Findings

26. The Council is not responsible for the school’s decision to exclude Y and I have no remit to look at what happens in schools.
27. The Council had to provide education to Y from the sixth day following exclusion, at school or otherwise. It is not always possible for a council to find a school place immediately but it remains responsible for providing education.
28. The Council did not provide Y with education from the sixth day and Y received no education for the next two months. This is fault. Y missed out on education as result. I note the Council has taken steps to prevent this fault recurring in future.
29. The Council did not keep Miss X informed of its progress in finding alternative provision for Y. This would have been good practice and the failure to do so meant Miss X had to chase the Council. I consider this amounts to fault causing injustice.
30. From June the Council says it made available three hours’ 1:1 tuition for Y per day. Given Y’s age and noting 1:1 tuition is worth more than provision within a class, I consider the Council met its duty to provide suitable education for Y from June. I note Y only engaged in one hour’s tuition per day however, the Council has provided evidence to show he was unable to manage more hours than this.
31. I note Miss X was unhappy about the amount of play the tutor and Y engaged in. However, the provider has explained the reasons for this approach with reference to Y’s EHCP. It is not within my remit to say the tutor’s judgement in this respect was wrong; a proper decision making process was followed.
32. The Council arranged a full time placement for Y from September 2019. I do not consider it unreasonably delayed in doing so. I acknowledge Miss X was inconvenienced in having Y at home. However, I find this situation arose due to the school’s decision to exclude Y, rather than because of fault by the Council.

Agreed action

33. To remedy the injustice set out above I recommend the Council carry out the following recommendations within one month of the date of my decision:
• Provide Miss X with an apology for failing to keep her updated;
• Pay Miss X £400 in recognition of Y’s loss of education.
34. The Council has accepted my recommendations.

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Final decision

35. I find the Council delayed providing education to Y. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman