Summary: Mrs Y complains about the Council’s failure to arrange provision for her child, D, after they were permanently excluded from school. Mrs Y also complains the Council delayed when issuing D’s EHC plan. We find there was some delay in arranging full-time suitable provision for D and some minor delay in finalising the EHC plan. The Council has agreed to complete the remedial actions listed at the end of this statement.

The complaint

1. Mrs Y complains the Council failed in its legal duty to provide suitable full-time education for her child, D, after they were permanently excluded from primary school in 2022.
2. Mrs Y also complains the Council delayed when issuing D’s EHC plan.
3. As a result of the Council’s failures Mrs Y says she has experienced distress and D has missed a significant period of primary education.

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The Ombudsman’s role and powers

4. 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)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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)

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How I considered this complaint

7. During my investigation I considered the information provided by Mrs Y and discussed the complaint with her by telephone.
8. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement.
9. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. 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

Law and guidance relevant to this complaint

EHC plans

11. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
12. 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 EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).
13. Amongst other points, 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, and the school or placement named in Section I.
14. The Ombudsman can investigate complaints about matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

Section 19 duties

15. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” (Education Act 1996, section 19(1))
16. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says the duty to provide a suitable education applies, “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”. 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))
17. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
18. Full-time education is not defined but is commonly held to be equivalent to between 21 and 25 hours a week, depending on the age of the child. However, if a Council is arranging one-to-one tuition, fewer hours may be appropriate, giving the increased intensity of learning. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)
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 mind? How councils can do more to give children out of school a good education, published in 2016). We made recommendations that councils should:
• consider the individual circumstances of each case and be aware that councils 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 in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases; and
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

Permanent exclusions

20. A head teacher may permanently exclude a pupil from school in response to a serious breach, or persistent breaches, of the school's behaviour policy if allowing the pupil to remain in school would seriously harm the education or welfare of other pupils in the school.
21. Councils have a statutory duty to arrange suitable full-time education for the pupil to begin from the sixth school day after the first day the permanent exclusion took place. The education arranged must be full-time or as close to full-time in accordance with the child’s best interests or because of their health needs. (Statutory guidance ‘Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England, including pupil movement’)

Summary of key background events relevant to this complaint

22. Mrs Y’s child, who I will call D, was nine years old and attending a mainstream primary school at the time of the matters complained about. On 9 November 2022, and whilst D was in school Year 5, they received a fixed term exclusion for two days. Mrs Y went to the school for a re-integration meeting on 13 November. Mrs Y says the school decided to permanently exclude D for breaching the school’s behaviour policy. Mrs Y appealed against the school’s decision, but the governing body upheld the headteacher’s decision and decided not to re-admit D.
23. At the time, D did not have an EHC plan.
24. For five days following the exclusion, D’s school provided access to online learning.
25. The Council wrote to the school on 11 November and again on 15 November to chase up a referral form for D. This is because the Council said it needed an academic and social profile of D’s needs, as well as any education or support plans, to arrange suitable provision.
26. From 21 November the Council became responsible for providing ‘day six’ educational provision for D.
27. On this day the Council made a referral to a local education centre which offers short-term provision for those who are at risk of permanent exclusion or have already received an exclusion. The objective of the provision is to support the young person to return to school. I will refer to this as ‘Provider 1’.
28. The Council said Provider 1 would deliver online learning, paper-based activities and face to face provision. The Council says Provider 1 said it gave D work sheets to take home, but they were torn up and not completed. Provider 1 also told the Council that Mrs Y told them she did not want D to take part in the online provision. Mrs Y says this is incorrect and she did not refuse the provision.
29. Provider 1 continued to do ‘safeguarding’ checks on days when D did not attend the centre. Provider 1 also told the Council it continued to make sure D had access to all resources.
30. On 23 November the Council contacted a local primary school to request admission for D. The Council made the approach under its ‘Fair Access Protocol’.
31. The following day the Council received a response from the school. It refused to admit D due to the high level of SEND children already on its roll.
32. In mid-December the Council emailed all other local primary schools to request admission for D under FAP. The records do not show any responses from those schools.
33. On 20 December a tuition service, which I will call Provider 2, met with D to complete an assessment. Following this, Provider 2 agreed to offer 20 hours of one-to-one tuition each week. The tuition started on 18 January 2023.
34. In the meantime, Mrs Y requested an EHC needs assessment for D on 21 December.
35. The Council wrote to Mrs Y on 31 January 2023 confirm its decision to issue an EHC plan for D.
36. On 24 May the Council issued D’s EHC plan naming a mainstream school. Mrs Y disagreed with the contents of the plan and appealed.
37. Provider 2 delivered its final tuition session to D on 21 July.
38. The Council conceded to Mrs Y’s appeal and on 28 August issued an amended EHC plan naming a specialist school. D started that school in September 2023.

Was there fault in the Council’s actions causing injustice to Mrs Y and D?

EHCP process

39. Mrs Y complains about delay in the EHC process. The law says if the council agrees to assess a young person and issue an EHC plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks.
40. In D’s case the relevant deadline was 9 May 2023. The Council issued the EHC plan on 24 May 2023. This amounts to 15 days of delay and is fault. The injustice arising from the effects of delayed provision will be dealt with in the following section of this statement.

Alternative provision

41. For the jurisdictional reasons explained in paragraph five of this statement, I have only considered the period from 21 November 2022 to 24 May 2023. This is because Mrs Y had a right of appeal against the provision named in Section I of D’s EHC plan once the Council issued the final version in May 2023. Any complaints about the quality or quantity of the provision after that date would be a matter for the SEND Tribunal and not the Ombudsman.
42. When responding to Mrs Y’s complaint the Council said, “I can only apologise that [Provider 2] was not offered to [D] more swiftly, particularly at such a difficult time for you all as a family. As a response to your experience, I will take action to ensure that all Inclusion Officers undertake additional training on arranging tuition if required. Additionally, I will ensure that all officers are reminded of the place of tuition in supplementing provision offered by [Provider 1] for permanently excluded pupils should this not be offered on a full-time basis”.
43. From the above it would seem the Council has already accepted that Provider 1 was not sufficient for D and that it needed to be supplemented with additional education from Provider 2. D received 20 hours from Provider 2 from 18 January 2023. As this provision was 1:1 it was more intense and therefore equivalent to full time education.
44. D received partial provision only for two months. The decision to offer part-time provision was not based on D’s needs or capabilities and is therefore fault. When considering a possible remedy, I am mindful that two of the affected eight weeks fell within the Christmas half-term break when schools were closed. I have also considered that D received some provision in the period. With this in mind, I have asked the Council to complete the remedial action outlined in the final section of this statement.

Free School Meals

45. Prior to their permanent exclusion, D received free school meals (FSM). Mrs Y complains that D missed out on their entitlement to FSM for the period during which they were out of school.
46. The Education Act 1996 places a duty on schools to provide free meals to pupils who meet the means-tested benefits criteria, where a claim has been made on their behalf. The law sets out that councils only have to provide FSM funding for children attending mainstream schools.
47. Children on a fixed term exclusion remain on roll at school, so the duty is on the school to arrange FSM while the child is at alternative provision. Councils do not have an obligatory duty to provide FSM to children not attending schools. This includes permanently excluded children who cease to attend a maintained school.
48. Therefore, for the reasons explained above, I do not find fault with this part of Miss Y’s complaint about the failure to continuing to provide FSM to D.

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Agreed action

49. Within four weeks of my final decision, the Council has agreed to complete the following remedial actions.
• Issue a written apology to Mrs Y and D for the fault identified in this statement. When doing so, the Council will consider the Ombudsman’s guidance on Making an effective apology.
• Pay £100 to Mrs Y. This is a symbolic payment in recognition of the significant time, trouble and distress she experienced from the fault. This is also in recognition of her frustrated appeal rights caused by the delay.
• Pay £350 to Mrs Y for D’s educational benefit. This is a symbolic payment based on £1,000 per whole school term of total missed provision. The payment recommended for D is pro-rata and for the six school weeks when they received only partial provision. The remedy also takes into account D’s age and is line with the LGSCO’s Guidance on Remedies.
50. The Council will provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The remedial actions listed in the above section will provide an appropriate remedy for injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman