Summary: We found fault with the Council for its failure to secure alternative provision for the complainant’s (Miss X) son (Y) for a few weeks after his permanent exclusion. This caused him and Miss X injustice. We also found fault with the Council’s delay in amending Y’s Education Health and Care Plan before his move to a secondary placement but the Council’s fault did not cause significant injustice to Y and Miss X. We did not find fault with the Council’s delay in reviewing Y’s Education Health and Care Plan and the way it carried out the Personal Budget process for Y. The Council agreed to apologise and make a payment for the injustice caused to Y and Miss X by missed educational provision.

The complaint

1. Miss X says the Council failed to:
• Undertake an annual review for Y within the timescales for transferring to a secondary school;
• Actively take part in a Pupil Discipline Committee meeting;
• Provide Y with full-time education and special educational provision from the sixth day after his permanent exclusion;
• Make a decision and start making personal budget (PB) payments without delay;
• Include in Y’s PB equivalent of the cost of Free School Meals he would have received at school.
2. Miss X says the Council’s failings caused uncertainty and distress to Y, who was not sure of the arrangements for taking Standardised Assessment Tests (SATs). He also missed out on the school events in the last year of the primary school, including a school trip. Miss X says she was not sure if the Council shared updated information with Y’s secondary school.

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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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. The Ombudsman investigates complaints against the independent review panel. We do not decide whether a pupil should have been excluded or should be reinstated. Our role is to check the panel administered the appeal properly.
6. 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)
7. 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 have and have not investigated

8. I have not investigated what happened at a Pupil Discipline Committee meeting in mid-February 2023. Schools are responsible for the permanent exclusion process until parents appeal to an independent review panel. For the reasons indicated in paragraph four of this decision we cannot, therefore, look at what took place at the exclusion meeting held by the governing body of Y’s school.

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How I considered this complaint

9. I considered the information and documents Miss X provided.
10. I made enquiries with the Council and considered the information it provided.
11. Miss 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 (EHC) Plan reviews

12. Where a child is within 12 months of a transfer between phases of education, the council must review and amend, where necessary, the child’s EHC Plan before 15 February in the calendar year of the child’s transfer and where necessary amend the EHC Plan so that it names the school or type of school the child will attend following the transfer. (Special Educational Needs and Disability Regulations 2014, regulation 18 (1)(b))
13. The council and the school attended by the child must cooperate to ensure a review meeting takes place. The council can require maintained schools and academy schools to convene and hold the meeting on the council’s behalf. Reviews are generally most effective when led by the educational institution. (Special Educational Needs and Disability code of practice: 0 to 25 years, paragraphs 9.173 – 9.175)
14. The Council’s duties on EHC Plan Annual Reviews are specified in Special Educational Needs and Disability Regulations 2014:
• Councils must review an EHC Plan at least every 12 months;
• Within two weeks of the review meeting the school must provide a report to the council with any recommended amendments;
• Within four weeks of the meeting, the council must decide whether it will keep the EHC Plan as it is, amend, or cease to maintain the plan. It must notify the child’s parent and the school. If it needs to amend the plan, the council should start the process of amendment without delay;
• Where a council proposes to amend an EHC Plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The council must give the parents at least 15 days to give views on the proposed amendments;
• When the parent suggests changes that the council agrees, it should amend the plan and issue the final EHC Plan as quickly as possible;
• Where the council does not agree the suggested changes it may still issue the final EHC Plan;
• In any event the council should issue a final EHC Plan to the parent and any school named within 8 weeks of sending proposed amendments to the parents or young person. It must also notify the child’s parent of their right to appeal to the Tribunal and the time limit for doing so. (SEND Regulations 2014 regulations 18-22)
15. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs (SEN). We refer to it as the SEND Tribunal in this decision statement.
16. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan.

Permanent exclusion

17. The Department for Education guidance “Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England, including pupil movement” sets out the process which should be followed when permanent exclusions of a pupil is being considered.
18. Only the headteacher of a school can suspend or permanently exclude a pupil on disciplinary grounds.
19. Governing boards have a key responsibility in considering whether excluded pupils should be reinstated.
20. Where parents dispute the decision of a governing board not to reinstate a permanently excluded pupil, they can ask for this decision to be reviewed by an independent review panel.

Suitable alternative provision and delivery of special educational provision

21. 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.
22. Councils must arrange suitable full-time education for the pupil permanently excluded from their school from the sixth school day. (Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England including pupil movement guidance, updated in September 2023)
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
24. The council has a duty to secure special educational provision specified in an EHC Plan for the child or young person. (Children and Families Act S.42)
25. The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Personal Budget

26. A personal budget is money identified by a council to deliver provision set out in an EHC Plan where the parent or young person is involved in securing the provision.
27. A council must consider a request for a direct payment if a child’s parent made it at any time during the period in which the draft EHC Plan is being prepared or reviewed. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 4)
28. Councils may only make direct payments for special educational provision specified in an EHC Plan and not for funding a place at a school or post-16 institution. (Special Educational Needs (Personal Budgets) Regulations 2014 regulation 6(2))

What happened

29. The Council issued Y’s final EHC Plan at the beginning of May 2022, when Y was in Year 5.
30. Following concerns expressed by Y’s school (School 1) about Y’s behaviour and temporary exclusion the Council arranged with School 1 to hold a review of Y’s EHC Plan at the end of October 2022. Miss X at first thought she would not be available for this meeting. When she became available it was too late for School 1 to prepare and send all the documents needed for an annual review.
31. The review of Y’s EHC Plan was re-arranged for mid-December. The meeting did not take place due to Miss X being unwell. School 1 communicated with Miss X in mid-January 2023 trying to find a new date for a review meeting. School 1 explained it was an earlier annual review meeting as Y was in Year 6 and from September 2023 he would be moving to the secondary education. A meeting was provisionally arranged for the end of January 2023 but did not take place as Y was excluded from School 1 in the third week of January 2023.
32. At the end of January 2023 the Council started consultations with schools for a secondary placement for Y from September 2023. Miss X expressed her preference for an independent all-through school (School 2) to be named for Y for the remaining months of Year 6 and from September 2023. When responding to the Council’s consultation School 2 stated it could not meet Y’s SEN and did not offer him a place.
33. In mid-February a Pupil Discipline Committee meeting took place. School 1’s governors upheld the headteacher’s permanent exclusion decision. Miss X appealed this decision. An Independent Review Panel overturned the decision to permanently exclude Y from School 1.
34. The Council agreed a PB for Y at the end of February 2023 for the rest of his Year 6. Miss X signed a direct payments agreement with the Council. Y’s PB covered membership of sport clubs and gym as well as two educational sessions a week run in the local church.
35. At the beginning of March the Council offered Y a place at a secondary academy (School 3). The Council amended Section I of Y’s EHC Plan naming School 3 for him from September 2023.
36. A few days later Y started receiving tutoring of two hours per day from a Tutoring Agency (the Tutoring Agency) found by Miss X.
37. Following the Council’s query, the Tutoring Agency explained it would deliver to Y ten hours of tutoring for Maths and English per week at a certain hourly rate. The Council told the Tutoring Agency to send its invoices once a month. Y received ten hours of tutoring per week until the end of July 2023 with the break for taking SATs.
38. From the beginning of March Miss X was contacting the Council about the PB payments. She was concerned she would need to stop Y’s activities as could not afford them.
39. At the end of March Miss X asked the Council about the arrangements for Y’s SATs. She wanted to make sure Y had an opportunity to take these exams as he was making good progress with his tutoring and taking SATs would allow him to be placed at the right sets in his secondary school. The SEND officer responded on the same day, offering a telephone call and assuring Miss X she should receive a PB payment imminently.
40. The Council identified a junior school (School 4) where Y could take SATs. Miss X liaised directly with an executive headteacher, who met with Y and Miss X before the date of the exams, provided a timetable and supervised Y during the exams.
41. In mid-May an Educational Psychologist (EP) prepared her advice for Y. The Council sent Miss X its proposed amendments to Y’s EHC Plan prior to a meeting booked for the beginning of June 2023. Miss X accepted most of the amendments and offered her comments. She did not consider a meeting at the beginning of June was necessary.
42. The Council issued Y’s amended final EHC Plan in mid-June 2023.
43. At the end of June Miss X asked for a PB for Y to include cost of a three-day residential trip in place of the school trip Y missed due to being out of school. The Council declined this request as, it said, such provision would not be considered a proper use of public funds.
44. At the beginning of July the Council agreed to increase Y’s PB to include the cost of his lunches and travel to take his SATs.

Analysis

Delays with a review of Y’s EHC Plan

45. School 1 booked an annual review meeting for Y’s EHC Plan for the end of October 2022 and re-arranged it for mid-December 2022. This was in good time before the deadline of 15 February 2023 for naming a secondary placement for Y. The review did not take place because Miss X was unwell on the day. I have seen the evidence School 1 tried to re-arrange the meeting for the end of January 2023 but Y’s permanent exclusion complicated the process.
46. Although I recognise the Council’s ultimate responsibility for ensuring Y’s EHC Plan was reviewed, I do not find fault with the Council for relying on School 1 to make arrangements for a review meeting. As explained in paragraph 13 councils can require certain schools to arrange and lead a review meeting.
47. I do not find the Council to be at fault for a delay in reviewing Y’s EHC plan as it arranged a review in December 2022. The review did not happen for the reasons outside the Council’s control.
48. Besides Y’s EHC Plan was issued in May 2022, less than a year before the timescales for naming a secondary school. Y’s SEN would not have significantly changed within a few months. If Miss X had considered Y’s EHC Plan of May 2022 did not reflect his needs, she could have appealed to the SEND Tribunal.
49. The Council failed, however, to consult in good time with potential secondary placements for Y, which caused a three-weeks delay in naming School 3 in Section I of his EHC Plan. From the end of January 2023 the Council was consulting with secondary schools for Y, including School 2 as Miss X’s preference, and at the beginning of March identified School 3 as a suitable placement. In the second week of March it amended Y’s EHC Plan naming School 3 for Y from September 2023.
50. The Council’s failure to name Y’s secondary placement before 15 February 2023 is fault. I do not think, however, that it caused significant injustice to Y and Miss X for the following reasons:
• The delay was not excessive;
• The Council communicated with Miss X throughout, advising her of the timescales for schools’ responses and providing updates;
• After School 2 declined to offer Y a place Miss X seemed to be happy with School 3 as Y’s secondary placement and did not appeal the Council’s decision.
51. The Council secured an EP advice for Y as part of an annual review of his EHC Plan, which took place in May 2023. It decided to amend Y’s EHC Plan and sent Miss X its proposed amendments. After considering Miss X’s comments the Council issued a final amended EHC Plan for Y in mid-June 2023. There were no delays in the annual review carried out for Y’s EHC Plan in May 2023.

Suitable alternative provision and special educational provision

52. As explained in paragraph 22 of this decision the Council should have arranged alternative provision for Y from the end of January 2023. Y started receiving tutoring six weeks later, which is fault.
53. This fault caused him and Miss X injustice as Y missed a few weeks of preparation for his SATs which would have caused him anxiety. Y is academically very able and takes pride in his work, so the right support to prepare for the exams would have been important to him. Miss X was concerned about his learning at this critical time before the end of his primary education. She was aware of the impact of the exam results on placing children in sets in secondary schools.
54. There is no record of Miss X asking for more than ten hours a week of tutoring for Y. The correspondence between the Council and Miss X I have seen suggests the Council agreed the arrangements Miss X made with the Tutoring Agency. Besides the Council agreed to a PB for Y for extra activities including a membership in sport clubs and gym.
55. In view of the evidence I have seen so far I consider that by agreeing to fund Y’s tutoring and extra activities identified by Miss X the Council fulfilled its duty to provide alternative education and special educational provision to Y. As explained in paragraph 23 of this decision we would normally consider individual tutoring as more intensive than school teaching, therefore fewer hours of face-to-face provision could be seen as an equivalent of more hours of teaching at school.

Personal Budget

56. I did not find fault in the way the Council dealt with Miss X’s PB request for the following reasons:
• It is common for the process of setting up PBs as well as making payments to take a few weeks. I did not find any significant delays in the Council’s actions.
• Children who are out of school do not have an automatic claim for the cost of Free School Meals they would have received if they had been at school. As Miss X did not ask for an equivalent of Free School Meals in her original request for a PB, I do not find fault in the Council not including this element in Y’s PB. Miss X explained that when she had asked for the funding to cover the cost of meals later in the summer of 2023, the Council had agreed and had backdated the payments. This is reasonable and showed the Council’s willingness to support Miss X and Y.
• The Council also agreed to refund Miss X the cost of Y’s travel to School 4 where he took his SATs. Miss X was not happy she had to wait for this refund but councils often ask for invoices, receipts or details of costs before they agree to refund them and we would not criticise them for that.

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Agreed action

57. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Y and Miss X for the injustice caused to them by the faults identified;
• pay Miss X £800 to recognise the negative impact of the lack of alternative provision in the first six weeks after Y’s permanent exclusion.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I found fault with the Council for not securing alternative provision for Y for six weeks after Y’s permanent exclusion from school. This caused him and Miss X injustice. I also found fault with the Council’s delay in amending Y’s EHC Plan before his move to a secondary placement but the Council’s fault did not cause injustice to Y and Miss X. I did not uphold Miss X’s complaint about the Council’s delay in reviewing Y’s EHC Plan and the way it carried out the Personal Budget process for Y. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman