Summary: Mrs X complained about the Council’s failure to provide her son with suitable education after his exclusion from school in April 2022. We have found fault because the Council failed to deliver suitable education. Mrs X has suffered avoidable frustration and distress in getting the issues resolved and her son missed out on education he should have received. To remedy the injustice caused by the fault, the Council has agreed to apologise, make a payment to Mrs X and provide guidance to relevant officers.

The complaint

1. Mrs X complains the Council has failed to provide her son, Y, with suitable education provision since his permanent exclusion from a mainstream education setting in April 2022. She also complains about the Council’s lack of progress in sourcing new, permanent on-site education provision for him. Mrs X further complains about the Council’s poor communication and its refusal to progress her complaint to stage two despite the ongoing issues.
2. Mrs X says this has had a severe mental and emotional impact on the family as a whole, in addition to the costs she has incurred buying educational resources and organising private counselling for Y. Mrs X says this has impacted Y’s education and future prospects.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have investigated

8. I have investigated this complaint from April 2022 when Y was first excluded from school A until the time when Mrs X registered her complaint with the Ombudsman in February 2023.

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How I considered this complaint

9. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
10. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

11. A child with special educational needs (SEN) may have an EHCP. This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this. Section F of the plan is about the special educational provision needed by the child or the young person.  
12. The Council is responsible for making sure that arrangements specified in the EHCP are put in place. We can look at complaints about this, such as where support set out in the EHCP has not been provided, or where there have been delays in the process.

Appeal rights

13. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHCP or about the content of the final EHCP. Parents must consider mediation before deciding to appeal. 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 EHCP has been issued.

Timescales and process for EHCP assessment

14. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHCPs. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:

• where a council receives a request for an EHC needs assessment it must give its decision within six weeks whether to agree to the assessment;
• the process of assessing needs and developing EHCPs “must be carried out in a timely manner”. Steps must be completed as soon as practicable;
• the whole process from the point when an assessment is requested until the final EHCP is issued must take no more than 20 weeks (unless certain specific circumstances apply); and
• councils must give the child’s parent or the young person 15 days to comment on a draft EHCP.

School exclusion

15. A head teacher may permanently exclude a child from school in response to a serious breach or persistent breaches of the school's behaviour policy, and where allowing the pupil to remain in school would seriously harm the education or welfare of other pupils in the school.
16. Councils must provide suitable full-time education for excluded pupils from the sixth school day of exclusion. (Statutory guidance, ‘Children missing education’)

Alternative provision

General section 19 duty

17. 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 (S19) or alternative education provision.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

Focus report

19. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time - Out of school, out of sight? published July 2022.
20. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision (AP);
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases;
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary; and
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

21. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

What happened

22. I have set out below a summary of the key events. This is not meant to show everything that happened.
23. Mrs X has a son, Y. Y has an EHCP and was attending mainstream secondary school (school A) in the Council’s area. Y has an autism diagnosis.
24. After an incident involving Y early in April 2022, school A held an emergency annual review.
25. After the review, school A decided to permanently exclude Y. Following further discussions between school A and the Council, school A decided it could not withdraw Y’s exclusion. Y was excluded from school A at the end of April 2022.
26. In May of 2022, the Council said it would update Y’s EHCP so that it had the most up-to-date information to send out when consulting with potential new schools.
27. Communication passed between Mrs X and the Council over the coming months. Mrs X emailed the Council at the beginning of August 2022 asking for an update. She re-iterated Y had not received any education for over a term.
28. Towards the end of August 2022, the Council’s placement panel met to discuss Y’s case. It agreed to:
1. develop an interim package of Education Other Than at School (EOTAS);
2. work with school A for continuity; and
3. seek a placement at an enhanced mainstream autism base (EMAB).
29. The Council did not share the panel decision above with Mr and Mrs X until mid-September 2022. It did not advise points a and b, only sharing point c with them.
30. At the end of August 2022, a Council officer (Officer J) contacted Mrs X to arrange a meeting following Y’s exclusion in April. Officer J apologised for not making contact sooner.
31. By the middle of September 2022, despite chases by Mr and Mrs X, Officer J had still not met with the family in person. It was at this point that Officer J advised Mr and Mrs X of the placement panel’s decision from the end of August.
32. Shortly after this, Mrs X complained to the Council about the lack of overall progress, poor communication and that Y still had no AP in place following his exclusion in April 2022.
33. The Council responded to Mrs X’s complaint in the middle of October 2022. In its letter, it:
1. agreed it should have organised AP for Y by now and confirmed its commitment to do so;
2. said it would update Mrs X when it had heard back from tutoring companies approached to deliver education for Y;
3. apologised it did not consult with a wider range of schools after the placement panel meeting in August;
4. apologised the placement panel did not consider Y’s case earlier as it believed the educational psychologist’s report had been sent to an individual’s email address and overlooked;
5. apologised for not sending copies of Y’s EHCP, EP report and other documents when requested but would now do so; and
6. agreed it had not effectively communicated with Mrs X and promised fortnightly update calls from Officer J.
34. In mid-November 2022, the Council issued a further response to Mrs X’s original stage one complaint.
35. In mid-late November 2022, one of the agencies asked to provide tutoring for Y said it could begin immediately and work with Y until the end of December 2022. It began to deliver one hour tutoring per week.
36. At the beginning of December 2022, Mrs X asked the Council to escalate her complaint to stage two of its process.
37. Towards the middle of February 2023, and after a chase email from Mr X, the Council contacted Mrs X to say it was declining the request to escalate her complaint to stage two.
38. In mid-February 2023, a different AP provider said it could offer Y three days provision per week. The Council agreed this and according to Mrs X it began in late February 2023, continuing until May 2023. Tutoring was increased to two hours per week in February.
39. Mrs X has confirmed that Y started at school B, on a full-time basis, in September 2023.

School consultations

40. The Council sent consultation letters to numerous schools after Y’s exclusion. These were a mixture of schools with an EMAB, a mainstream autism base (MAB) and one mainstream school.
41. It consulted with two schools in August 2022, seven schools at the end of September 2022 and a further school at the end of February 2023.
42. In October 2022, one of those consulted in September (school B) said it could offer Y a place in its MAB. The Council did not act on this or discuss it further with the school until May 2023.
43. No other school offered Y a place during the consultation process.

Analysis

Failure to deliver alternative provision after exclusion

44. S19 guidance states that alternative education should be equivalent to full time. Evidence from early May 2022 confirms the Council accepted its duty to provide AP from the sixth day after Y’s exclusion.
45. In response to my enquiries, the Council advised there was “not a great deal of contact” on file regarding the initial efforts in late April 2022 to secure AP following the permanent exclusion.
46. Having viewed the evidence available, it was clear that by the end of the school summer holidays in 2022, the Council had not provided any AP at all following Y’s exclusion in late April 2022. Neither had it made any effort to source any for the upcoming term when Y was still without a permanent school place. Despite chases from Mr and Mrs X and communication with officers via telephone and email, little progress had been made.
47. Following an approach to one tutoring agency in April 2022, the Council only began to approach other agencies in the third week of September 2022, when schools had already returned two weeks earlier and only after Mrs X had registered a complaint with it. The Council has not explained this gap or delay in its chronology to me.
48. Whilst the Council apologised in its stage one complaint response for the lack of AP and its lack of action to source it, it did not secure any tutoring for Y until November 2022.
49. I recognise that from late September 2022, the Council did make some efforts to source tutoring but progress was slow. Despite this, it still had a duty to provide Y with education equivalent to full time.
50. The initial lack of action and avoidable delay in continuing the search for AP was fault. Failing to provide Y with any education was also fault. It would have caused Mrs X and Y avoidable distress and frustration. It also meant Y was left without any education at all from the beginning of May 2022 until mid-late November 2022. I have made a recommendation below to remedy the injustice caused.

Tutoring from November 2022

51. Although the Council’s stage one complaint response confirmed it was actively working to secure AP for Y, when the tutoring did start, Y still only received one hour per week.
52. The Council has provided no rationale for why tutoring was set at this amount. Neither was it able to provide information about why the amount did not increase above this. Even if the Council had provided a rationale for tutoring to be set at this level, I am satisfied this would not have been a sufficient amount for Y. Evidence shows the Council asked the agency for 15 hours per week. Mrs X says the tutor could only offer one hour per week, so the family accepted this.
53. There is no evidence to suggest the Council reviewed this arrangement until February 2023 when it increased tutoring to two hours per week. This is fault. As per paragraph 20 above, we recommend the Council reviews part-time education and works with parents to review and amend plans where appropriate. Failure to do so was fault.
54. I recognise the Council had some difficulties in securing tutoring at all. On the balance of probabilities and with a lack of evidence to the contrary, I am satisfied it is more likely than not that the Council struggled to secure an appropriate level of tutoring to be equivalent to full time education. However, failure to provide education equivalent to full time is still fault. It meant that Y lost the opportunity to engage in receiving a more rounded education until he began to attend an AP provider for three days per week late in February 2023. I have made a recommendation below to remedy the injustice caused.

Poor communication

55. Mrs X complains of poor communication from the Council.
56. In its stage one complaint response sent in mid-October 2022, the Council admitted to and apologised for this. It said it would raise the issue with the service department and get Officer J to make fortnightly calls to update the family on progress.
57. In response to my enquiries, the Council provided a list of scheduled calls from Officer J’s calendar. No other evidence was provided. Mrs X says that of the 10 or 11 calls that should have taken place between October 2022 and February 2023, the family received only three.
58. On the balance of probabilities and with a lack of evidence to the contrary, I am satisfied it is likely that contact with the family was not made as the stage one complaint response promised. Failure to do so was fault.
59. The Council’s stage two complaint response was not sent to Mr and Mrs X until they had chased it after more than two full months of waiting. This was almost double the published response time for stage two complaints. The responding officer apologised for the delay but did not explain it. In response to my enquiries, the Council explained the delay and advised it was the fault of the responding officer. This delay and lack of communication about it is fault.
60. In the letter, the Council explained its reasons for not investigating the complaint at stage two. It was entitled to take the stance it did. A difference of opinion is not evidence of fault. On this basis I find no fault in the Council’s refusal, despite the frustration this caused Mrs X.
61. I am satisfied that poor communication continued even after this had been highlighted in the stage one complaint response. The additional faults identified above would have caused Mrs X added frustration and distress. I have made a recommendation below to remedy the injustice caused.

School consultations

62. Y was excluded from the school late in April 2022. It was not until mid-August 2022 that any new potential schools were consulted and even then letters were only sent to two schools.
63. The Council did not send any further consultation letters until a full month after the placement panel had met late in August 2022. Although it apologised for this in its stage one complaint response to Mrs X, it did not explain the delay.
64. The Council’s stage one complaint response said it would update Mrs X when the responses came back, but there is no evidence to say this happened in a timely manner.
65. When the Council sent its complaint response to Mrs X, a MAB school (school B) had already replied in the previous week to it to say it could offer Y a place in Year 9 (he was at the time in Year 8). School B is a high school which only admits pupils from Year 9 onwards. In response to my draft decision, the Council said this consultation was sent in error as the caseworker was not familiar with local provision.
66. This information was not included in the complaint response and Mrs X was unaware of it for a significant time. On the balance of probabilities, this reply appears to have been overlooked as it was never acted on. The Council eventually responded to this but not until mid-May 2023 when it asked school B if it could still offer Y a place.
67. In mid-November 2022 and a month after its stage one response, Mrs X again asked the Council for an update about consultations. She was unsure what had happened and had not been updated as promised.
68. Three of the schools consulted never replied. The Council did not chase responses from them. This is fault.
69. I am satisfied, that in the circumstances of this complaint, the Council acted too slowly when sending out consultations, failed to effectively communicate with Mrs X, failed to update her as it said it would and failed to chase up those who were consulted but did not respond. More importantly, the Council did not act when Y was offered a place by one of them, even though this would be for Year 9. This is all fault. It would have caused Mrs X avoidable distress and frustration. It also caused uncertainty for Y as to what would happen about his permanent schooling. I have made a recommendation below to remedy the injustice caused.

EHCP emergency annual review 2022

70. Mrs X complained the Council had not issued an amended final plan or advised her of her appeal rights following the emergency annual review held in April 2022 when it subsequently agreed to update Y’s EHCP.
71. In response to my enquiries, the Council provided various documents relating to amendment notices but not an updated final EHCP. The Code says the process of developing EHCPs “must be carried out in a timely manner” and that steps should be completed as soon as reasonably practicable.
72. At the time of writing my draft decision, the Council had not provided an explanation for the delay in issuing a new final EHCP following Y’s emergency review or advised when it would be issued. By the time it sent its responses to me, the Council had still not issued a final EHCP. I am satisfied the Council has not acted quickly enough or taken steps to explain any delay to Mrs X. This delay and lack of clarity is fault. It would have added to the uncertainty and frustration Mrs X felt. It also delayed any appeal rights Mrs X may wish to have exercised. I have made a recommendation below to remedy the injustice caused.
73. In response to my draft decision, the Council advised Y’s EHCP was finalised and issued in July 2023.

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Agreed action

74. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision.

Personal remedy

The Council should:

1. apologise to Mrs X for the distress caused to her and Y for its failure to:
1. effectively communicate with the family throughout;
2. effectively consult with schools in a proactive and timely manner;
3. actively try and source AP for Y from the time of his exclusion;
4. arrange suitable AP equivalent to full-time education for Y; and
5. issue an amended final EHCP in a timely manner.
2. pay Mrs X £2400 on behalf of Y to acknowledge he did not receive suitable education from May to July 2022;
3. pay Mrs X £2350 on behalf of Y to acknowledge he did not receive suitable education from September 2022 to late November 2022 or education equivalent to full time from November until the end of December 2022;
4. pay Mrs X £1100 on behalf of Y to acknowledge he did not receive suitable education equivalent to full time from the beginning of January 2022 to late February 2022; and
5. pay Mrs X £250 to acknowledge the general distress caused by the faults identified.
1. The Council should provide us with evidence it has complied with the personal remedy actions within the timeframe stated.

Service improvement recommendations

At draft decision stage, I recommended the Council should:

1. share the Ombudsman’s guidance on the principles of good administrative practice with SEN officers. This will remind them of the need for accurate and timely record keeping as a future evidence base and to communicate in a timely and effective manner with those concerned; and
2. remind officers dealing with SEN complaints of the need to handle these in line with the Council’s published policy and timescales and share the Ombudsman’s guidance on effective complaint handling for local authorities with them.
1. The Council has already provided evidence of completing its service improvement recommendations.

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Final decision

77. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman