Summary: Mr X complained about the alternative education the Council arranged for his son, Y. There was fault with how the Council arranged alternative provision for Y when he could not attend his agreed school place. The Council agree to apologise to Mr X, pay him a financial remedy and review how it arranges alternative provision.

The complaint

1. Mr X complained the Council failed to arrange suitable education for his son, Y, after they moved to the Council’s area in September 2021. He said the Council took too long to arrange alternative education when the school Y was due to attend refused to admit him.
2. As a result, Mr X says Y went without education for several months and this caused significant difficulties for his family. He wanted the Council to arrange a school place for Y.

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The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))
8. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
9. If we are satisfied with an organisation’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

10. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
12. 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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What I found

School admissions

13. Statutory guidance about school admissions and appeals can be found in The School Admissions Code and School Admission Appeals Code. Both are published by the Department for Education.
14. Under the system of coordinated admissions, parents make a single application for a school place to their home council. This is the council the parent pays their council tax to. This can include applications for school places outside the normal school year start dates, such as when families move mid-schoolyear.
15. All schools must have a set of admission arrangements containing oversubscription criteria. The school’s admission authority uses these to decide which children will receive an offer of a place if there are more applications than places available. The school’s admission authority sets the admission arrangements. The Council is the admission authority for School B.
16. Every council must have a Fair Access Protocol (FAP), agreed with most schools in its area to ensure that, outside the normal admissions round, unplaced children, especially the most vulnerable, are offered a place at a suitable school as quickly as possible.

Special educational needs

17. A child with special educational needs 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.
18. Before producing an EHC plan, a council must complete an EHC assessment. Both parents and schools can ask councils to do this and councils must then decide whether an assessment is necessary.
19. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC Plan or about the content of the final EHC Plan. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC Plan has been issued.

Alternative provision

20. Councils must 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 arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
21. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
22. Full-time education is not defined, but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child.
23. If a child is excluded from school, councils should arrange suitable alternative education provision from the sixth day of exclusion.

What happened

24. Mr X’s son, Y, has special educational needs (SEN), related to sensory processing, expressing himself and social interaction. These difficulties mean that Y needs close supervision in a classroom setting.
25. Y’s former primary school had asked the council for its area to assess Y’s needs. While it assessed his needs, the council for that area arranged temporary one-to-one support for Y in his existing school. However, the assessment process was interrupted when Mr X and his family moved to the Council’s area in late September 2021.
26. Shortly before moving, Mr X asked the Council to arrange a school place for Y. In his application for a school place Mr X gave two preferences for schools, told the Council Y had SEN and he received some support for this at his previous school.
27. A place at Mr X’s second preference, School B, became available in early October 2021. The Council offered Y a place at School B, which Mr X accepted the following day.
28. The following week, Y attended School B for what the school referred to as an ‘induction’ and ‘trial’ day. Information from School B suggests that this was for it to better understand Y’s needs based on information it had gathered from his previous school.
29. After a few hours, School B asked Mr X to collect Y because it could not meet Y’s needs with its normal resources and, due to his behaviour, it was not safe for Y to remain in the classroom. The school also contacted the Council to tell it that it could not meet Y’s needs. Y did not return to School B after this first day.
30. The following day, the Council discussed the situation with Mr X. It told him it would contact his former council for information about the EHC assessment it believed had been started, to see if this could hasten its own assessment of Y’s needs. In the meantime, it told Mr X that Y’s place at School B was “secure until [the Council] received advice from its SEN team.”
31. A week later, around mid-October, the Council’s records show it decided to refer Y to its Fair Access Panel and its alternative education provision service. The Council also referred Y to its SEN service for a formal EHC assessment.
32. In early November 2021, the Council referred Y to its alternative education provision service and also decided to start an EHC assessment for Y.
33. In mid-November, the Council’s alternative education provision service met with Mr X and Y. The Council said Mr X agreed that education at home and online learning would not be suitable for Y. It also said Mr X told it Y could not access a placement at its education hub because this was too far away and Y’s parents could not transport him there safely. Instead, it agreed to explore other options to support Y during the EHC assessment process. Mr X said that he did not refuse a placement at the education hub and that this was not offered to him.
34. Between late November 2021 and January 2022, the Council negotiated with School B for the use of a room it could use to provide Y with alternative education provision. This was agreed in mid-January 2022. The following day, the Council began providing Y with one hour of face-to-face education, four days each week.
35. In March 2022, after his complaint to the Council and Ombudsman, the Council issued an EHC plan for Y. This said Y should receive 25 hours a week in-classroom support from a teaching assistant to allow him to access education in a mainstream classroom setting. However, it did not name a specific school. Since then, the Council has identified what it considers to be a suitable school which has developed a plan to integrate Y into school full-time.

My findings

School admissions

36. The evidence shows the Council correctly followed the in-year admissions process. When no school places were initially available, it told Mr X about this and his right to appeal. When a place became available, it offered this to Mr X quickly.
37. However, the Council’s records are unclear about what happened after Y first attended School B. Although Mr X had accepted the place which had been offered, it is not clear whether Y was enrolled in School B following his first visit.
38. The Council referred Y to its Fair Access Panel, which suggests that Y was not enrolled. The Council said it did not proceed with the panel referral because it decided to complete an EHC assessment for Y instead.
39. However, it also told Mr X that Y’s school place was “secure”. If Y was enrolled at School B and was not allowed to return, the Council should have considered whether this was an unofficial exclusion.
40. Although the situation was complicated and the Council was trying to focus on Y’s long-term needs, I am satisfied this lack of clarity was fault which caused avoidable confusion and uncertainty for Mr X.
41. I cannot consider the actions of School B including whether it either refused to admit, or subsequently excluded Y. However, no matter the reason Y was not in school, the Council was aware of this and had a duty to arrange alternative education for him.

Alternative provision

42. The Council’s records show it knew Y was not in school shortly after the ‘trial’ day and, a week later, accepted it had a duty to arrange alternative education for Y. However, it did not refer Y to its alternative education provision service until three weeks after this.
43. If Y had been excluded from school, the Council should have arranged suitable alternative education within a week of Y being unable to return to school. If Y was not excluded, but was otherwise without a school place, the Council should have arranged alternative education provision as soon as possible.
44. In either case, I am satisfied that there was an avoidable delay in arranging alternative provision for Y after the Council was aware he would not be returning to School B. This was fault which meant that Y went without any education for longer than he could have done.
45. While I appreciate the Council did not have full details about Y’s needs until it completed its EHC assessment, the information from Y’s previous school showed he was able to engage in a nearly full-time classroom environment if provided with one-to-one supervision. The former council had arranged this on an interim basis while it assessed Y’s needs.
46. Alternative education provision should be full-time unless this would not be in the child’s interests. While the Council was entitled to make its own decisions about what alternative education it provides, it has not explained why Y could not manage more than four hours education a week or that these four hours a week were equivalent to full-time education.
47. Based on this, I am satisfied the Council did not properly consider the options available to provide Y with alternative education or explain why the provision it arranged was suitable. This was fault which meant that Y went without a suitable education between November 2021 and the end of February 2022.
48. I have not considered any missed education after the Council issued Y’s EHC plan in March 2022. Any missed education after this is either a result of the Council’s decision not to name a specific school in the EHC plan or delays in arranging the provision named in the plan. Mr X has the right to appeal the content of the plan and I am satisfied it would be reasonable for him to use this right if he is not satisfied with the school the Council has chosen. If Mr X wishes to complain about any delays arranging the provision in Y’s EHC plan, I am satisfied it would be reasonable for the Council to have an opportunity to respond to his complaint about any delays first.
49. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. Taking into account Y’s age, his special educational needs, and that Y received some education during that time, I am satisfied a payment of £400 a month is suitable.

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Agreed action

50. Within one month of my final decision, the Council will:
• apologise to Mr X for the delays in arranging suitable, alternative education provision for Y between November 2021 and February 2022;
• pay Mr X £1,200, to recognise the education Y missed during that time;
• pay Mr X £400 to recognise the distress, frustration and inconvenience he and Mrs X were caused as a result of those delays.
51. Within three months of my final decision, the Council will review how it arranges alternative provision to ensure it provides full-time education and, where this is not in the interests of the child, it records its reasons for that decision.

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Final decision

52. I have completed my investigation. There was fault with how the Council arranged alternative provision for Y when he could not attend his agreed school place. The Council agreed to apologise to Mr X, pay him a financial remedy and review how it arranges alternative provision.

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Investigator's decision on behalf of the Ombudsman