Summary: Mr F complained the Council failed to provide suitable education for his son after he was permanently excluded and about delay in the education, health and care needs assessment. We found fault. The Council has agreed to make a payment to Mr F to remedy the injustice caused.

The complaint

1. Mr F complained the Council failed to provide suitable education for his son, J, who has special educational needs after he was permanently excluded from school. He also complained about delay in the education, health and care needs assessment.
2. Mr F says this has severely affected his son’s education, caused distress to the family, and affected their ability to work.

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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 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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
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.
8. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
9. 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)
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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How I considered this complaint

11. I spoke to Mr F about his complaint and considered the information he sent, the Council’s response to my enquiries and:
• The Special Educational Needs and Disability Code of Practice ("the Code")
• The Special Educational Needs and Disability Regulations 2014 (“the SEND Regulations”)
• Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’
• Statutory guidance, Alternative provision
12. Mr F 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

Relevant law and guidance

Permanent exclusion

13. 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.
14. 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. 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.

Alternative provision following permanent exclusion

15. Under section 19 of the Education Act 1996 councils have a duty to 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. Education must begin no later than the sixth school day of the exclusion. (Education Act 1996, section 19(4A))
17. 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))
18. Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’ says 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)

Special educational needs

19. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place and reviewed each year.
20. Children and young people may require an EHC needs assessment for the council to decide whether an EHC plan is necessary. If, following the assessment, 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 from the date of the request for an assessment.
21. In order to complete an EHC needs assessment the Council must seek advice from certain professionals, including an educational psychologist (EP). (SEND Regulations 2014, regulation 6(1))
22. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named.
23. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.

Home to school transport

24. Councils must make suitable home to school travel arrangements as they consider necessary for eligible children of compulsory school age to attend their ‘qualifying school’. (Education Act 1996, 508B(1) and Schedule 35B)
25. Where the child is attending the nearest suitable school, they will qualify for free transport provided any other relevant conditions are met. Not every child with an EHC plan, or who attends a special school, will be eligible for free travel to school. A child will not normally be eligible solely because their parent’s work commitments or caring responsibilities mean they are unable to accompany their child themselves.

What happened

26. I have summarised the key events. This is not meant to be a detailed chronology of everything that happened.
27. Mr F’s son, J, has difficulties with social communication and emotional regulation and anxiety. He was attending a mainstream primary school but was on a part-time timetable and had other support strategies in place.
28. The School asked the Council to assess J’s EHC needs on 10 July 2023. The Council agreed to do so on 15 August. This meant that if it decided to issue an EHC plan, it should have been issued by 27 November 2023.
29. In September, the School suspended J and on 4 October it permanently excluded him. This meant the Council had to put alternative provision in place on 12 October (the sixth school day after exclusion).
30. The Council spoke to its alternative provision provider (“the PRU”) about putting support in place for J. The PRU’s on-site facility was full so there was discussion about different options.
31. The School’s governors upheld the exclusion and Mr F appealed to the independent review panel.
32. The PRU accepted the Council’s referral of J on 19 October. It considered information about J’s needs from the School. On 26 October, the PRU offered to provide J with 15 hours a week of mentoring with education at its site and placed J on its roll.
33. Mr F and J’s mother (Ms B) did not consider this provision was suitable and did not want J to attend the PRU. They asked for the provision to be made at J’s home as they could not provide transport to the PRU and J would not access a taxi. They also did not consider that mentorship was a suitable education. Mr F complained to the Council that alternative provision had not yet been made.
34. During November the PRU discussed the provision with Mr F and Ms B. Ms B agreed to a mentor for three days a week and the PRU commissioned a mentor. Ms B asked for any mentoring not to start until after the independent review panel had concluded in relation to the exclusion.
35. The Council replied to Mr F’s complaint on 21 November. It apologised there had been challenges finding alternative provision to start on 12 October but said the PRU had accepted a placement for J on 19 October.
36. The independent review panel upheld the decision to exclude J on 23 November.
37. The mentor met Ms B, she asked for one hour a day at J’s home but the mentor was not able to provide this and told the PRU it was therefore unable to meet J’s needs. The PRU commissioned a second mentor provider.
38. On 13 December, Mr F complained to the Council that they had not yet received a draft or final EHC plan. He also asked to escalate the complaint about alternative provision to stage two of the Council’s complaint procedure.
39. The EP submitted their report to the Council on 14 December. The Council now had all the advice it needed to issue a draft EHC plan. The Council replied to Mr F’s complaint on 29 December. It apologised for the delay in issuing an EHC plan. It said it was using locum EPs and had recruited staff to help reduce delays. The draft EHC plan was issued on 8 January 2024.
40. The second mentor provider asked for the EHC plan but the Council said it could not be shared as it was not yet finalised.
41. The Council spoke to the PRU on 26 January. The second mentor had not yet started providing support to J and there was no start date for J to receive support at the PRU’s site. The Council asked the PRU to provide full-time on-site provision to J. It called Mr F to arrange a tour and induction. Mr F said they could not transport J to the PRU. It was agreed that J should initially receive mentorship with education and that this would start after the February half-term.
42. The Council sent a stage two response to Mr F’s complaint about alternative provision on 9 February. It accepted that alternative provision had not started on the sixth school day after exclusion. It offered to pay Mr F £500 to cover the costs of free school meals which J had missed out on. (This was increased to £600 on 19 March.)
43. The PRU told the Council that the mentorship was working well and J was attending two afternoons a week.
44. The final EHC plan was issued on 23 February. It said J should attend a mainstream primary school that was yet to be named. Mr F appealed to the SEND Tribunal. In June 2024, the Council agreed to name a special school for J but the appeal continued in relation to J’s EHC needs and SEND provision.

My findings

EHC needs assessment

45. We expect councils to follow the statutory timescales set out in the law and the Code. We are likely to find fault where there are significant breaches of those timescales. Following the Council’s decision to assess, it had to progress the assessment so it could issue J’s final EHC plan within 20 weeks of the request, i.e. by 27 November 2023. The final plan was not issued until 23 February 2024.
46. EHC plans must include advice from an EP, so the Council could not issue it until after the EP report was received in December 2023. I acknowledge there is currently a national shortage of educational psychologists which is causing delays in providing EP advice for EHC assessments. But the law nonetheless says that plans must be issued within 20 weeks. The Ombudsman can make findings of fault where there is a failure to provide a service, regardless of the reasons for that service failure. I therefore find it was service failure not to issue the final plan on time.
47. The final EHC plan was issued three months late. This caused avoidable distress and uncertainty about the special educational provision J was entitled to and a delay in the opportunity to appeal to the Tribunal. This is injustice.
48. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we remedy any loss of special educational support as J did not have an EHC plan.
49. Our guidance on remedies says that for delays in issuing a first EHC plan, a symbolic payment of £100 per month of delay is appropriate to remedy the uncertainty and distress caused.
50. The Council has said it is using locum EPs, recruiting staff and redesigning its service to address the issue, so I do not make any service improvement recommendations.

Alternative provision following permanent exclusion

51. The Council has accepted that it failed to put alternative provision in place on the sixth school day after a permanent exclusion. This is fault.
52. The PRU put J on its roll on the 16th school day and offered to provide 15 hours a week of mentorship with education at its site. Mr F and J’s mother did not consider that to be suitable.
53. It is not the Ombudsman’s role to decide what is suitable education for J; that is the Council's role. My role is to consider how the Council has determined that the alternative provision offered to J was suitable, taking into account his age, ability and aptitude, any special educational needs and his physical and mental health. If a council considers this properly, I cannot find it at fault just because Mr F disagrees with its decision.
54. In response to my enquiries, the Council said the PRU’s offer of mentorship was made after it had considered relevant information from J’s school. This is in line with its normal practice.
55. There were issues about transporting J to the PRU. I have not seen evidence that Mr F applied for transport for J but note that he said J would not access it anyway. Councils are not required to provide transport to education except for eligible children in line with their transport policy. So a lack of transport does not make the provision unsuitable.
56. I find there was no fault by the Council in the offer of alternative provision made on 26 October 2023. This means there was a 10-school day delay in making provision.
57. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of at least £900 per term (13 weeks) to acknowledge the impact of that loss.
58. Mr F says his work was affected and he was caused costs on complaining and appealing. We do not recommend repayment of the costs associated with making a complaint. Nor do we normally recommend remedies that reimburse loss of earnings. This is because we cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. In any case, I have found that the delay caused by fault was two weeks.

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Agreed action

59. Within a month of my final decision, the Council has agreed to pay Mr F:
• £300 to remedy the uncertainty and delay to appeal rights cause by the delay in issuing the final EHC plan.
• £200 to remedy the 10-day loss of education for J. This should be used for J’s benefit.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman