Summary: The Council took too long to make alternative educational provision for Miss B’s son when he was excluded from school and while he was waiting for a new school place to be confirmed with special educational provision. The Council also did not always communicate with Miss B properly. This caused Miss B distress and frustration and meant that her son went without the education he was entitled to. The Council has agreed to my recommendations to remedy the injustice it has caused.

The complaint

1. Miss B complains that the Council:
• Failed to provide her son with an education for 17 weeks when he was excluded from school;
• Did not intervene when he was excluded unlawfully for reasons connected to his disability; and
• Did not communicate with her properly or keep her informed of its actions.
2. Miss B says the Council’s shortcomings meant that her son missed out on education, her partner could not work and the family lost income, and they were caused distress and frustration.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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 and have not investigated

6. Miss B’s son was excluded from school. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended). This means I have not investigated the school’s or the governors’ actions with regard to her son’s exclusion.

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How I considered this complaint

7. I considered the information provided by Miss B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all comments received before issuing this final decision.

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What I found

The law and government guidance

8. 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.
9. Parents can appeal a head teacher’s decision to permanently exclude their child to the school’s governors. The governors may uphold the head teacher’s decision or may decide to reinstate the pupil. If parents appeal the exclusion, councils must constitute a panel of independent members to review the governing body’s decision.
10. 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. For permanently excluded children, alternative education provision should start no later than the sixth day after the exclusion.
11. 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)
12. The courts have considered the circumstances where the section 19 duty applies. Case law has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
13. The DfE non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 
14. Schools should notify the local authority of any cases where a child is accessing reduced/part-time education arrangements. Our focus report, “Out of school…out of mind?”, says councils should keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases.

What happened

15. Miss B and Mr H have a son, K. K is compulsory school age and has special educational needs. He was excluded from his school at the beginning of February.
16. The school was a voluntary aided school maintained by the Council. The school’s board of governors held a disciplinary meeting to decide whether to uphold the headteacher’s decision. Miss B and Mr H attended the meeting, along with an officer and manager from the Council’s Special Educational Needs team. The meeting heard that the school had followed the advice of various educational professionals who had assessed K and made specific recommendations to tailor school for K. However, the school said that K needs a specialist provision and it could not meet his needs. The meeting notes say that Miss B and Mr H did not wish to appeal the exclusion.
17. The Council told the governors’ meeting that it was assessing K’s educational health and care needs, but frustratingly this process had not yet been completed, It had issued a draft EHC Plan for K’s parents to comment on the day before the meeting. The governors decided to adjourn its decision to permanently exclude K to allow the EHC Plan process to be completed.
18. K was entered onto the roll of an alternative provision school at the beginning of March. However, Miss B visited the school and raised concerns that it would not meet his social and emotional support needs. Emails from the school say that Miss B was frustrated that she felt the Council was not communicating with her. Miss B said the school told her that it could not provide 1:1 support for K and could not make the provision in his draft EHC Plan. Miss B asked the Council to consider another school. The Council consulted the second school.
19. Miss B called the Council to chase progress on K’s school place, but there is no record that it returned her call. The case notes show that at the end of April, Miss B and the second school had not been able to meet to see if they could meet K’s needs. By mid-May, the school confirmed it could not meet K’s needs.
20. In the meantime, K still was not attending the alternative provision school. It had offered to send work home, but K could not manage this, and it made some welfare checks.
21. The Council consulted another school, Miss B’s preference. The Council was able to place K at the school from the beginning of June. In total K had spent 14 weeks out of education. The Council issued K’s final EHC Plan.

Analysis

22. The Council has accepted that it took too long to arrange alternative educational provision for K while it was organising a permanent placement and finalising the EHC Plan. The Council also took longer than the statutory time frame to issue the final EHC Plan. This meant K missed out on education and also became distressed. Miss B has described that this also impacted on the family and meant they lost income as their ability to work was restricted.
23. The Council also failed to communicate sufficiently with Miss B so that she was not sure whether progress was being made at this very worrying time. The Council has offered to apologise to Miss B and to make a symbolic payment in recognition of the impact of the Council’s shortcomings on her, and her son.
24. The Council has taken steps to improve its Special Educational Needs and Disability (SEND) Service. It has:
• Developed its Alternative Educational Provision Strategy with a clear vision for continuous improvement.
• Joined the national SEND and Alternative Provision Change programme to develop a new multi-agency Alternative Provision taskforce to support young people who are accessing alternative provision
• Implemented a SEND advice line
• Recruited a Team leader in the SEND service, and invested in training and development for staff to develop and streamline its processes.
• Regular listening events for parents and carers
• Increased the capacity within the EHCP team
25. Miss B complains the Council did not intervene when her son was excluded. She says this was unlawful because it was for reasons connected to his disability. It is clear that all parties agreed that the school could not meet K’s needs. The actions of the headteacher and the governors are not within the Ombudsman’s remit and I cannot investigate this. The Council could only intervene if the parents appeal and it must then hold a review panel to consider the governors’ decision. In this case, Miss B understandably did not appeal, and so there was no Council-run review. The Council did go to the governors’ meeting and contributed to this. There was no fault by the Council relating to K’s exclusion.
26. The Council’s proposed remedy is a reasonable way to resolve the complaint, and is in line with the Ombudsman’s guidance on remedies.

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Agreed action

27. The Council has offered to take action to remedy the complaint. Within one month of the date of this decision, the Council will:
• Apologise to Miss B. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Miss B £1,050 in recognition of the educational provision her son missed. Miss B should use this money as she thinks fit for the benefit of her son.
• Pay to Miss B £300 in recognition of the distress to her and the additional time and trouble she was put to when provision was delayed and the Council did not communicate with her properly.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation. There was fault by the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman