Summary: Mrs X complained the Council failed to provide her child, Y, with a suitable alternative education while they were absent from school. She also complained the Council delayed in issuing Y’s Education Health and Care Plan, failed to deliver the provision in the plan and failed to communicate with her during the process. The Council failed to review the suitability of Y’s alternative education and delayed in issuing their EHC Plan. The Council will apologise and make a payment to Mrs X to acknowledge her frustration and Y’s lack of education provision.

The complaint

1. Mrs X complained the Council failed to provide her child, Y, with a suitable alternative education while they were absent from school. She also complained the Council delayed in issuing Y’s Education Health and Care Plan, failed to deliver the provision in the plan and failed to communicate with her during the process. Mrs X says this caused her to give up work, impacted Y’s educational progress and caused her family distress and frustration. She wants the Council to compensate her and put a plan in place for Y to receive a suitable education.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. 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.
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
8. 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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What I have and have not investigated

9. I have investigated events between March 2023 and May 2024.
10. I cannot investigate the actions of Y’s schools. We cannot investigate complaints about what happens in schools.

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How I considered this complaint

11. I have discussed the complaint with Mrs X and considered the information she provided. I have also considered information provided by the Council.
12. Mrs X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and Guidance

Education, Health and Care (EHC) Plans

13. 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. 
14. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• 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.

15. 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 the following: 

• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• If the council decides not to conduct an EHC needs assessment it must give the child’s parent or young person information about their right to appeal to the tribunal.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• 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).

16. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).

School Exclusions

17. 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.
18. 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.
19. 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

20. 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. (Education Act 1996, section 19).
21. 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))
22. In cases where a child is permanently excluded from a school, provision must be arranged for the child from the sixth day after the exclusion. (The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870)).

What happened

23. In early 2023 Mrs X’s child, Y, started to display significant anxieties while attending their primary school, School A. Records show they struggled to control their emotions and behaviour around others and had tried to leave the school site. Between January and March 2023 School A suspended Y five times because of their behaviour.
24. Mrs X asked the Council to carry out an Education, Health and Care (EHC) needs assessment of Y on 14 March 2023. At the same time the Council visited Y to carry out a “barriers to learning” assessment. Later in March, Y’s primary school, School A, permanently excluded Y. Mrs X began contacting the Council to ask about arrangements for Y’s education. School A broke up for the Easter holidays on 31 March 2023.
25. The Council refused Mrs X’s application for an EHC needs assessment on
    12 April 2023. Mrs X disagreed with the decision and began mediation with the Council. The Council completed its “barriers to learning” assessment on 16 April 2023. It said Y needed an integration plan to build their resilience in attending school. It set several actions to enable Y to engage in learning and feel welcome in a school environment.
26. In late April 2023 the governors of School A confirmed Y’s permanent exclusion. They said they did not feel School A was a suitable school for Y. The Council told Mrs X it was looking into a place at a local pupil referral unit (PRU) and therapeutic provision. The PRU later told the Council it had no spaces.
27. Following the Easter holidays, the Council arranged for Y to attend an outdoor therapeutic day service for a total of two days a week as alternative provision while out of school. It told Mrs X she would need to stay nearby to act as Y’s 1:1 carer when at the provision. Y began attending the provision in May 2023.
28. In May 2023 the PRU said it now had a space for Y. The Council and Mrs X agreed Y would struggle to transition into a PRU, back into primary school and then to secondary school from September 2024. The Council began looking at alternative schools for Y and said it would carry out a Thrive assessment (a tool that helps identify a child's social and emotional development needs, and then creates a plan to address those needs) to inform next steps.
29. In July 2023 Y had a sensory and occupational therapy assessment. At the same time, an independent exclusion review found School A had not followed proper procedure in excluding Y and overturned the exclusion. Following mediation, the Council agreed to carry out an EHC needs assessment of Y on 26 July 2023.
30. Y’s end of term report from the therapeutic provision showed Y’s engagement varied from week to week but rated them highly for behaviour and enjoyment. The educational psychologist completed their report for Y’s EHC needs assessment on 14 August 2023.
31. Over the summer the Council tried to name an alternative school, School B, for Y under its school admissions fair access protocols. However, as the exclusion was overturned, Y remained on the roll at School A and so School B refused to admit Y. By the start of the new term in September 2023 it remained unclear where Y would go to school.
32. School A wrote to Mrs X in September 2023 and confirmed it would reinstate Y’s place. It told Mrs X she could refuse the placement if she wanted. Mrs X then applied for a place at School B. She said she felt the relationship between Y and School A had broken down. School B refused Mrs X’s application and the Council began working with School A on reintegrating Y.
33. The Council held an inclusion meeting to discuss Y’s case and agreed Y needed a local academic placement on a reduced timetable. The Council agreed to issue an EHC plan on 26 September 2023 and began discussions with Mrs X over Y’s provision and placement. At the start of October 2023, Y returned to the therapeutic provision. Mrs X immediately asked the Council about plans for after half-term and asked for an update on the Thrive assessment.
34. At the end of October 2023 Mrs X told the Council she no longer wanted Y to attend School B. She said she would prefer Y to attend the therapeutic provision for the rest of the year, before transitioning to a secondary school named in Y’s EHC plan. The Council agreed to fund the therapeutic provision until December and began consulting with school placements for Y’s EHC plan. School A told the Council it could not meet Y’s needs and it asked the Council not to name it as Y’s placement in the EHC plan. The Council issued a draft EHC plan on 27 October 2023.
35. Over the next two months Mrs X continued to chase the Council for an update on funding Y’s alternative provision. She said the funding expired in December 2023 and Y needed certainty over their placement. Y ended the term with no provision in place for the next term. Y’s end of term report continued to report positive behaviour and enjoyment with variable engagement at times.
36. In January 2024 Mrs X told the Council the therapeutic provision was concerned about large gaps in Y’s attendance because of gaps in funding. The Council contacted School A about providing 1:1 support for Y to attend the provision but School A refused. Y stopped attending the therapeutic provision in February 2024.
37. Mrs X complained to the Council. She said the Council had failed to provide Y with a suitable alternative education. The Council issued a final EHC plan on 15 February 2024 naming School A until 31 August 2024, and a mainstream specialist secondary academy, School C, from September 2024. Mrs X appealed to the Tribunal on 21 February 2024. School A maintained it could not meet Y’s needs.
38. The Council met with School A to discuss an action plan for Y’s education before they transitioned in September 2024. The Council contacted School C to ask about transition dates. School C said it normally started transitions in the summer term. In March 2024 the Council again asked School A to provide 1:1 support to enable Y to return to the therapeutic provision. School A refused.
39. The Council responded to Mrs X’s complaint in March 2024. It apologised for the delay in issuing Y’s EHC plan but said a plan for Y’s provision was now in place for the rest of the term. Mrs X escalated her complaint to stage two. She said the Council had not responded to her entire complaint and there was no provision in place for Y.
40. In its stage two response the Council accepted it had failed to respond to Mrs X’s entire complaint, delayed in issuing the EHC plan and its contact with Mrs X had been poor. It said the delay in Y’s provision was because of issues with its providers. It said it had now agreed a plan to continue with the therapeutic provision and supplement this with tuition and attendance at an alternative provision centre. It said the SEND Tribunal would determine Y’s placement in their EHC plan.
41. The Council continued to try to put the agreed provision in place for Y. In April 2024 Mrs X said she would continue acting as Y’s 1:1 carer while at the therapeutic provision. The Council approved funding for the therapeutic provision, tutoring and alternative provision centre on 23 April 2024. Mrs X complained to the Ombudsman. Y began the increased alternative provision in May 2024.

My findings

Alternative provision

42. School A excluded Y on 27 March 2023. Allowing for the Easter holidays the Council had until 18 April 2023 to arrange alternative provision for Y. It did not put alternative provision in place until 20 May 2023. This is fault. As a result, Y missed one month of provision.
43. When the Council did put alternative provision in place it was two days a week of therapeutic provision. The PRU was full and the Council decided the therapeutic provision was in Y’s best interests at that time. Given Y’s struggles attending School A and engaging with their education, there is no evidence of fault in the way the Council reached this decision. Y’s end of term report shows increasing engagement with the provision. The Council is not at fault for its choice of alternative provision between May and July 2023.
44. From June 2023 the Council worked to secure Y a place at an alternative primary school. When it became clear this was not possible and Y’s exclusion had been overturned, it tried to work with School A on a reintegration plan for Y. This work continued into the new school year in September 2023. At this point Y had no school placement and no alternative provision in place. While the Council was entitled to work with Schools A and B to secure Y a place, it should have also been mindful of the likelihood Y would continue to need the therapeutic provision from September 2023. Its own records show the therapeutic provision was a part of Y’s reintegration plan regardless of whether Y attended school or not. The Council failed to secure alternative provision for Y during September 2023. This is fault and resulted in Y missing a further month of therapeutic provision.
45. By October 2023 it was clear neither School A or B could accommodate Y and that Y needed suitable alternative provision until the Council completed the EHC needs assessment. While Y attended the therapeutic provision during October 2023 there is no evidence of the Council reviewing the suitability of this provision or making a long-term plan for Y’s education, with funding only in place until the end of that month.
46. By now the Council had an educational psychologist’s report, a sensory report and an occupational therapist’s report to add to its barriers to learning report. It also continued to assure Mrs X of its plan to carry out a Thrive assessment. Regardless of the EHC needs assessment process, the Council should have reviewed Y’s needs and put in place suitable alternative education until a point where they had a school placement. The Council failed to do this and continued with a term-to-term reactionary approach to Y’s education. This is fault and caused Mrs X and Y uncertainty and frustration over whether Y could have accessed increased alternative provision from September 2023.

Education and Health Care needs assessment and plan

47. 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. The Council accepted Mrs X’s assessment request on 14 March 2023. It rejected the request on 12 April 2023. This was within the six-weeks the Council had to decide whether to assess Y or not. The Council is not at fault. Mrs X had a right of appeal to the SEND Tribunal over this decision. It was open to her to use that right.
48. Following mediation, the Council agreed to assess Y on 26 July 2023. Having agreed to assess, the Council should have issued Y’s plan within 14 weeks, so by 1 November 2023. However, it did not issue a final plan until 15 February 2024, a delay of around three months.
49. The Council received advice from an Educational Psychologist on 14 August 2023, within the six weeks of its decision to assess Y. We would expect councils to issue a final EHC plan within around six weeks of receiving this report. On balance, I consider the plan issued in February 2024 is not significantly different to what it would have been had the Council issued it by 1 November 2023. Because of the delay, Y missed out on the provision within the plan between November 2023 and May 2024, when the Council finally arranged the increased alternative provision.

Communication

50. Mrs X complained the Council failed to communicate with her during the EHC process, and when arranging Y’s alternative education. The records show the Council remained in regular contact with Mrs X following Y’s exclusion. While it has not always been able to answer Mrs X’s questions it has responded quickly and kept Mrs X as informed as it could as it liaised between several schools and its inclusion team. The Council is not at fault.

Injustice

51. Because of delays in arranging it, Y missed two months of therapeutic provision in April 2023 and September 2023 which equates to around half a term. While the Council failed to review Y’s provision in September 2023, it is not possible to say whether this would have resulted in Y receiving increased alternative provision, or whether Y would have engaged with any increase. It did result in uncertainty and frustration for Mrs X and Y. I have recommended a symbolic payment to recognise the half a term of lost provision, and the uncertainty and frustration for Mrs X and Y.
52. On balance, Y should have received the provision in their EHC plan from November 2023 to May 2024. This equates to two terms (six months) of missed special educational provision.
53. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to recognise the impact of that loss. In deciding on a figure, we consider factors such as:
• The severity of the child’s SEN as set out in their EHC Plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Lost or delayed right of appeal to tribunal.
54. I have taken account of these factors and consider a payment of £1200 per term is appropriate.
55. We found fault with the Council for EHC Plan delays and alternative provision planning in other recent investigations. The Council agreed to provide or produce a plan to confirm the actions it is taking to ensure EHC Plans are issued within statutory timescales and has delivered recent training on alternative provision. Because of this, I have not made any service improvement recommendations. We will continue to monitor the Council’s progress through our casework.

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Agreed action

56. Within one month of our final decision the Council has agreed to:
1. Apologise to Mrs X for the faults identified in this decision. 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.
2. Pay Mrs X £2400 to recognise the impact of the loss of two terms of special educational provision on Y.
3. Pay Mrs X £450 to recognise the impact of the loss of half a term’s alternative therapeutic provision on Y.
4. Pay Mrs X £500 to recognise the uncertainty and frustration caused by the Council’s failure to put a long-term plan in place for Y’s education between September 2023 and May 2024.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation, finding fault causing injustice, which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman