Summary: We have found fault with the Council for not arranging suitable full-time education after Mr X’s son, Y was permanently excluded from school. This caused Y and his family avoidable distress. The Council agreed to apologise and make a remedy payment to Mr X in recognition of the missed education and distress caused.

The complaint

1. Mr X complained the Council did not provide his son with a full time education when he was permanently excluded from school.

Back to top

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. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I have and have not investigated

5. I have not investigated the school’s decision to permanently exclude Y. This is out of our jurisdiction and Mr X has appealed.

Back to top

How I considered this complaint

6. I considered Mr X’s complaint and spoke to him about it.
7. I also considered the Council’s response to Mr X and to my enquiries.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

The law and guidance

Education, Health and Care (EHC) Plan

9. 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.

Alternative provision

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.
11. Councils have a duty to arrange suitable full-time education for permanently excluded pupils from the sixth day of exclusion.

Part-time timetable

12. The DfE guidance (Working together to improve school attendance) 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.

Exclusions

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.
15. 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.
16. An independent review panel does not have the power to direct a governing board to reinstate an excluded pupil. It may direct a governing board to reconsider its decision if the panel decides a governing board’s decision is flawed when considered in the light of the principles used for judicial review. This is a very high threshold.
17. 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. We cannot question panel decisions taken without fault, no matter how strongly the parent disagrees.

What happened

18. Mr X’s son, Y has Special Educational Needs (SEN). The Council had issued a draft EHC Plan in early February 2024 when Y’s primary school permanently excluded him. Y was in year 6 at that time.
19. The Council asked the school whether it would consider rescinding the permanent exclusion. The headteacher explained it was not possible due to this being the second permanent exclusion. The first was rescinded in 2023 and an attempted intervention had failed.
20. Mr X appealed the school’s decision to exclude Y.
21. Y started a part-time timetable with an alternative education provider (AP) on the 15th day after his exclusion. The Council pursued other AP providers to secure Y a full-time and varied education. For the majority of February-July 2024, Y was receiving 13.5 hours a week of AP.
22. Mr X was keen for Y to attend a full-time school placement until the end of the school year. Two months after his exclusion, the Council consulted primary schools to try and secure Y a placement. These schools could not offer a placement. This was due to a variety of reasons including:
• already high number of pupils with EHC Plans, could not meet Y’s needs.
• the final term of year 6 includes lots of ‘memory activities’ that Y could not participate in – could exclude him.
• residentials booked that Y could not attend.
• Established friendship groups which could make Y feel excluded.
23. The Council issued a Final Amended EHC Plan in July 2024.
24. Y had a secondary school placement before he was excluded and before the EHC Plan process began. This was through the normal admissions process. The school arranged additional transition sessions to help Y after being out of a school setting for 6 months. Y is now attending a full-time mainstream secondary school.

My findings

25. The Council should have secured a suitable education for Y on the sixth day after his exclusion. This did not happen until day 15. This was fault. This caused Y to miss 9 full days of education.
26. When the Council secured alternative provision, this was on a part-time basis. The part-time timetable was not a conscious decision because Y could not manage a full-time one. It was because the Council struggled to find suitable, available and accessible provision. I have found fault with the Council.
27. In total, Y did not receive a full-time education for one and half school terms. Y was receiving a part-time education (13.5 hours per week) for most of this period. The Council has agreed to pay Mr X £750 in recognition of the missed education. This is in line with our Guidance on Remedies. I have taken into account that Y was receiving a part-time education and at this stage his EHC Plan was at draft stage so his SEN provision was not confirmed.
28. I also recognise the distress caused to Y and his family during this time. The Council has agreed to apologise and pay £250 in recognition of this.

Back to top

Agreed action

29. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mr X for the missed education and distress this caused the family.
2. Pay Mr X £250 in recognition of the avoidable distress caused.
3. Pay Mr X £750 for the missed education Y experienced after being permanently excluded from school.
30. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

31. I have completed my investigation. I have found the Council at fault for not securing suitable full-time education after Mr X’s son, Y was excluded from school.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman