Summary: Mr X complains the Council failed to provide a suitable school placement for his daughter who was excluded from school in October 2021. We do not intend to find fault with the Council.

The complaint

1. Mr X complains the Council failed to provide a suitable school place for his daughter, who has been out of school since October 2021.
2. Mr X would like the Council to find a suitable school placement and would like compensation for the frustration and distress and for the loss of educational provision.

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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. 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)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. The Council contracts out its SEND department to Cognus. We can investigate Cognus because it is providing services for the Council. I will refer to it as the Council in this decision.
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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)
7. 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.

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What I have and have not investigated

8. I investigated the Council’s failure to provide suitable education under Section 19 of the Education Act 1996 (see paragraph 14). I did not investigate matters after January 2022 because Mr X had a right of appeal to the SEND tribunal once he had the final EHCP. I consider it reasonable for Mr X to have used those appeal rights.

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How I considered this complaint

9. I spoke with Mr X and considered the information he provided.
10. I made enquiries with the Council and considered the information it provided.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Plan

12. A child with special educational needs may have an Education, Health, and Care plan (EHCP), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.

Appeal right

13. 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. 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 EHC Plan has been issued.

Alternative education

14. 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. Statutory guidance confirms that, while there is no legal deadline to start alternative provision, it should be arranged as soon as it is clear that a child will be absence for health reasons for more than 15 days.

Exclusion 

15. In cases where a child is permanently excluded from a school, the law is clear that provision must be arranged for the child from the sixth day after the exclusion. This is set out in The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870) and accompanying statutory guidance.

Cognus’ complaint procedure

16. Cognus has a three-stage formal complaint procedure. There is an informal resolution prior to the three formal stages.

Summary of key facts

17. Mr X’s daughter Y has mental health needs and has an EHCP dated 11 January 2022. She was excluded from the school named in her 2017 EHCP in October 2021.
18. An emergency Annual Review took place on 19 October 2021 where post-16 options were discussed and considered. Mr X wanted Y to attend a residential school. The Council had arranged for Y to attend two alternative providers as a temporary measure.
19. The Council offered a specialist ASD place for Y within the pupil referral unit (PRU) in November. Mr X refused the place as his other child had previously attended and it did not work out.
20. In response to our enquiries the Council said there was a place at the PRU held for Y, but this went to another child as Mr X did not take up the offer.
21. The final amended EHCP dated 11 January 2022 says the Council is “actively seeking a special school placement” for Y until July 2022, and from September it will seek a mainstream post-16 provider. There is no named school in the EHCP.
22. Mr X wanted to know what the Council had done to find a placement for Y before the academic year started in September 2022, as she had already been out of school for a year.
23. At the end of September 2022, Mr X complained to the Council that Y had no education for a year.
24. The Council’s informal response to the complaint gave details of the placements it was waiting to hear back from.
25. Between November 2022 and January 2023 there were various emails exchanged, with the Council updating Mr X with school consultations and Mr X saying his complaint was still outstanding.
26. The Council told Mr X in November he could escalate to stage one of the complaints procedure. He asked on at least three occasions to do this and the Council considered it at stage one on 24 January 2023.
27. The stage one response said the Council carried out many consultations with schools and colleges, but they were either full or could not meet Y’s needs. It apologised for this.
28. Mr X was unhappy with this response, so he raised his complaint to stage two at the end of February. The Council responded in mid-March and said:
• It apologised that a school placement had still not been found;
• Temporary provision had been in place for Y since October 2021. The EHCP co-ordinator was only aware that Y had stopped attending when Mr X made the complaint in September 2022, which is when it sent a list of tutors to him;
• It found a placement in early 2022 but Mr X rejected it;
• More parental preferences were sought in January and March 2022 to allow the EHCP co-ordinator to consult with other placements;
• In May 2022 it consulted with several settings, all were full or could not meet Y’s needs;
• It offered Mr X a visit to a setting in August 2022 but he declined; and
• Three further consultations had taken place recently, and the EHCP co-ordinator was also re-visiting previous settings to see if there were any current or future vacancies.
29. Mr X responded at the beginning of April saying apologies were not good enough. He made a stage three complaint. He also said he had reported to the EHCP co-ordinator when Y had stopped attending the alternative placements, so the Council should have been aware earlier.
30. The Council’s response at the end of April had the same outcome as the stage one and two complaints. It said:
• The Council is continuing to look for a suitable placement for Y;
• It sent a list of alternative settings to Mr X in February which he had not responded to; and
• If Y attended a centre the Council had put forward, she would continue to receive an education until a school place was available.
31. Mr X was unhappy with this response, so he brought his complaint to the Ombudsman.
32. The Council found a school place for Y in June 2023 and she attended in September.

Analysis

33. The Council arranged temporary provision for Y before the Annual Review. During my enquiries the Council sent copies of communication to and from Mr X. There is no evidence Mr X told the Council that Y had stopped attending the alternative provision, so the Council did not know Y had stopped attending until Mr X raised his complaint in September 2022.
34. The Council arranged alternative provision in a specialist place for children with an EHCP within its PRU. This is what councils are required to do where a child has been excluded from school. The Council acted in line with the Section 19 duty as I have set out in paragraph 14, so there is no fault.
35. This provision was identified and offered later than the sixth school day after Y had been excluded (see paragraph 15), which is fault. But Mr X refused the PRU, so there is no injustice.
36. Further, from September 2022 the duty to arrange alternative provision ended as Y had turned 16 years old. So Y had no entitlement to education under Section 19 after September 2022.

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Final decision

37. I do not find fault with the Council for failing to find a suitable school placement for Y.

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Investigator's decision on behalf of the Ombudsman