The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to provide her son, F, with suitable education following his permanent exclusion from school in March 2019. She also complained the Council delayed issuing F’s Education, Health and Care Plan and delayed approving his post-16 placement. The Council provided F with suitable alternative provision in line with the law following his exclusion from school. It was at fault for failing to issue F’s Education, Health and Care Plan in line with statutory timescales and for failing to name his post-16 placement before the start of the academic term. The Council agreed to apologise and pay Mrs X £300 to acknowledge F’s loss of educational opportunity between September and November 2020. It also agreed to pay Mrs X £100 to acknowledge the frustration and time and trouble the matter caused her.
- Mrs X complained the Council failed to provide her son, F, with suitable education following his permanent exclusion from school in March 2019. She also complained it failed to issue his Education, Health and Care (EHC) Plan in line with statutory timescales and delayed taking his current post-16 placement to panel for approval.
- Mrs X said the faults meant F missed out on education between March 2019 and March 2020 and did not start his post-16 placement until November 2020. She said the matter has caused her distress, frustration and time and trouble.
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 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)
- 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, section 34(3), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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)
- 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.
How I considered this complaint
- I spoke to Mrs X about her complaint.
- I considered the Council’s response to my enquiry letter.
- I considered relevant law and guidance including:
- The Education Act 1996
- Alternative provision statutory guidance
- The SEND code of practice.
What I found
Alternative provision law and guidance
- The Department for Education issued guidance entitled ‘Alternative Provision’. This guidance says ‘Local authorities are responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made’.
- 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)
- Councils must provide suitable full-time education for excluded pupils from the sixth school day of exclusion.
- The Courts have held that where a council has arranged for the provision of education which is suitable for a child and which it is reasonably practicable for the child to enjoy, a council would not be under a duty to provide alternative suitable education, simply because, for one reason or another, the child is not taking advantage of the existing facility.
- Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
- Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place.
Timescales for EHC needs assessments and preparation of the EHC Plan
- If a parent or school believes a child needs an EHC Plan, it can ask the Council to carry out a needs assessment to determine what special educational support the child needs.
- The whole process of carrying out the EHC needs assessment and EHC Plan development, from the point when an assessment is requested until the final plan is issued must take no more than 20 weeks.
- Mrs X has a son, F who in March 2019 was 15 years old and in year 10 at a a mainstream secondary school. During March 2019, the school permanently excluded F.
- On the sixth day following F’s exclusion the Council offered him a place at a Pupil Referral Unit (PRU). It arranged an admission meeting however Mrs X told the Council she was not happy for F to attend the PRU. Mrs X did not attend the admission meeting. The Council reminded Mrs X of her responsibility to ensure F received an education.
- Following the easter break the Council contacted Mrs X to discuss F’s non-attendance at the PRU. It said the PRU would carry out an assessment of F’s educational needs and provide him with bespoke provision. Mrs X said she wanted F’s previous school to provide home tuition instead. Mrs X reiterated she did not want F to attend the PRU.
- In May 2019 the Council issued Mrs X with a non-attendance warning letter. This warned that it may take legal action if F continued failing to attend the PRU.
- At the end of May 2019, the school upheld its decision to permanently exclude F. The Council again made the offer of the PRU as alternative provision for F. Mrs X declined stating she did not want F mixing with some of the other pupils at the PRU. Mrs X started commissioning her own private tuition for F at home.
- During July 2019 Mrs X requested an EHC assessment for F. The Council declined in August and Mrs X appealed.
- In September 2019 the PRU invited F to attend for an assessment so it could see how to meet his needs. Mrs X explained that F said he was at risk from gangs if he attended the PRU. F did not make any further disclosure about this and the school identified no safeguarding risks. Mrs X said she intended to educate F at home. The Council sent Mrs X a final non-attendance warning letter.
- In October 2019 the Council agreed to carry out an EHC assessment with F. The Council wrote to Mrs X explaining if it decided F required an EHC Plan then it would issue the final version within 20 weeks. Records show F was offered work experience at a vocational centre however he declined to attend.
- The Council said it recognised that F’s associations were continuing to prevent him having any meaningful engagement with the PRU. Therefore, it referred him to another PRU (PRU B) which was linked to a secondary school.
- At the start of January 2020 F remained on roll at the PRU B. He began attending a military training academy four days a week and then attended PRU B for a few hours on a Friday. However, the military academy ended F’s placement in February 2020 due to his behaviour.
- At the end of January 2020, the Council issued F’s draft EHC Plan. Records show Mrs X emailed the Council asking for some amendments. She requested that PRU B be named on the plan as F’s placement.
- The Council issued F’s final EHC Plan in April 2020 which was 11 weeks over the statutory timescales. F’s plan stated his placement was PRU B until August 2020 when he would then start attending an appropriate post-16 placement. The plan stated it would name the post-16 placement by the end of April 2020.
- During April 2020 Mrs X contacted F’s SEND coordinator at PRU B. She suggested an academy which specialised in mechanics and catered for pupils with SEN’s. The SEND coordinator contacted the Council SEND officer who agreed to contact the academy.
- Records show the Council contacted local colleges during May as possible post-16 placements for F. There are no records showing it contacted the academy. In June 2020 the headteacher at PRU B contacted the Council sharing concerns that it had not named F’s post-16 placement.
- At the start of July 2020 F’s social worker contacted the SEND officer at the Council and again suggested the academy as a suitable post-16 placement for F. The Council carried out consultation with the academy at the end of August 2020 and approved the placement during September 2020.
- F attended an assessment day at the academy however in October 2020 it declined to offer him a placement because it felt it could not meet his needs. Records show the Council carried out further consultation with the academy and at the start of November it offered F a place.
- F started attending the academy in November 2020 and Mrs X said he was happy and doing well.
- Mrs X however remained unhappy with the Council’s handling of F’s education since he was excluded from school in March 2019. She complained to the Council that it failed to provide him with suitable education between March 2019 and March 2020. The Council did not uphold Mrs X’s complaint. It said it offered suitable alternative provision in line with the law at the PRU following F’s permanent exclusion. The Council said there was no evidence to show why F could not attend the PRU. The Council said it made considerable efforts to engage F at the PRU and overcome barriers before transferring him to PRU B.
- Mrs X remained unhappy and complained to us.
- When F was excluded from school in March 2019 the Council acted in line with relevant law and offered F alternative provision at the PRU within six days of the exclusion. The Council decided that the PRU was suitable for F and it was practicable for him to attend. Mrs X said the PRU was not suitable because F was at risk from other pupils at the PRU. However, she provided no tangible evidence to support this and the school did not identify any safeguarding risks. There is no other evidence to show the PRU was not suitable for F which means the Council was not under a duty to provide a different placement. The Council acted in line with relevant law and guidance. It is not Council fault that F remained without education during the rest of 2019 following his exclusion.
- In line with statutory timescales, the Council should have issued F’s final EHC Plan by the end of January 2020. The Council issued F’s final plan in mid-April 2020 which was an 11-week delay and is fault. Although the delay did not impact on F’s education it the time, it caused Mrs X and F frustration and ultimately contributed to the delay in approving and naming F’s post-16 placement. The Council said it has already addressed the legal requirement to meet statutory timescales for EHC assessments and plans with its staff.
- The Council issued F’s final EHC Plan naming PRU B as F’s placement in line with Mrs X’s wishes. However, it said it would name F’s post-16 placement by the end April 2020. It did not do so which is fault.
- The Council agreed to consult with the academy as a prospective post-16 placement for F in April 2020. However, it did not so until August 2020 which meant the Council did not approve the placement until September 2020. Failing to contact and consult with the academy in April 2020 after agreeing to do so was fault. Had it consulted in April 2020 it is likely the Council would have approved the placement and resolved the issues that arose much earlier.
- On balance, the delay in issuing Fs final EHC Plan along with the failure to consult with the academy after agreeing to so in April 2020 contributed to F having no named post-16 placement before the start of the academic year in September 2020. It meant F lost out on educational opportunity for the first half term.
- Within one month of the final decision the Council agreed to:
- apologise to Mrs X and pay her £100 to acknowledge the frustration and time and trouble caused by the delay in issuing F’s final EHC Plan, failing to name a post-16 placement by the end of April 2020 and failing to consult with the academy in April 2020 after agreeing to do so.
- pay Mrs X £300 to recognise F’s loss of educational opportunity between September and November 2020. Mrs X should use the payment for the benefit of F’s education as she sees fit.
- I have completed my investigation. I have found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.
Investigator's decision on behalf of the Ombudsman