Summary: Mr X complained the Council failed to provide his child, Y, with appropriate education after they were excluded from school. The Council was at fault. It failed to arrange appropriate provision, its communication was poor and it delayed issuing Y’s amended Education, Health and Care Plan following an annual review. The Council has agreed to apologise and make a payment to Mr X to acknowledge Y’s missed education and specialist provision, and the distress and frustration Mr X was caused.

The complaint

1. Mr X complained the Council failed to provide his secondary school aged child Y with an appropriate education after he was excluded from school. Mr X says the Council’s communication with him was poor, it delayed issuing Y’s final Education Health and Care (EHC) Plan following an annual review and delayed responding to his complaint. He says this caused the whole family frustration and distress and it affected Y’s mental health.

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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 cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), 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). The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I considered evidence provided by Mr X and the Council, as well as relevant law, policy and guidance.
8. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant Law and Guidance

Education, Health and Care Plans

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.

Annual reviews of the EHC Plan

10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan. This must happen within four weeks of the meeting. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
11. Where the council proposes to amend an EHC Plan, the law says 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. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting. Case law also found councils must issue the final amended EHC Plan within a further eight weeks.

Exclusions

12. 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.
13. 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.
14. 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

15. 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.
16. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
17. Where a child is permanently excluded from school, the council must arrange suitable full-time education for the pupil from the sixth day after the first day the permanent exclusion took place.

The Council’s complaints procedure

18. The Council says it aims to respond to complaints within 10 working days. If a complainant remains unhappy it may conduct a review, aiming to give a full response within 20 working days.

What happened

19. Y attended a specialist school, School A and had an EHC Plan. In late May 2023, Y was excluded from School A. Mr X appealed to the Governors and then asked for an independent review of the decision but the panel upheld the exclusion.
20. The following is a summary of key events relevant to the complaint. I have considered what happened from Y’s exclusion until October 2024 when the Council issued Y’s final amended EHC Plan naming education otherwise than at school.
21. Mr X contacted the Council to ask what provision Y was to receive, following Y’s exclusion. The Council decided to arrange an emergency annual review. It held this in late June 2023. The Council then allocated a SEND officer in July 2023.
22. In July 2023 the Council approved two days a week at an alternative provision provider (provider B) for Y with effect from September 2023. It placed Y on the roll of a pupil referral unit. The Head of the pupil referral unit expressed concerns regarding its capacity to meet Y’s needs and requested a multi-disciplinary team meeting.
23. In mid October 2023 the Council issued Mr X with a notice to amend Y’s EHC Plan. It consulted eight settings. One of which (Provider C) offered to support Y with an alternative provision package whilst it was creating a new site. During this time Mr X was regularly contacting the Council, requesting an update and contact.
24. In January 2024 the Council agreed to a placement at Provider C and in mid-January issued Y’s final EHC Plan naming Provider C. Mr X raised concerns about the content of the Plan which was out of date and did not reflect Y’s attendance at School A. Provider C also responded to the Council that its offer was for an alternative provision package which it would extend to a school place if one became available in the future. It said the EHC Plan would need amending as Y would not be placed on Provider C’s roll but would be supported with alternative provision once it had met with Mr X and Y. It said it needed to assess the appropriateness of the placement. Mr X complained to the Council.
25. In early February 2024 an officer spoke with Mr X and agreed to look for his email which requested amendments to the EHC Plan and said Provider C would liaise with him about provision.
26. The following week, Provider C contacted the Council to report its new school site had fallen through and it was unlikely it could now offer alternative provision.
27. A Council manager spoke to Mr and Mrs X in early March and suggested a package of education otherwise than at school. It provided them with a copy of its alternative provision directory. Around this time the Council agreed to fund one to one sessions for Y rather than group sessions at Provider B.
28. A Council officer wrote to Mr X in late April 2024 to say they were still awaiting some information to provide a comprehensive response to his complaint. However, they upheld his complaint about the delays and limited provision given to Y. They also upheld his complaint about poor communication. They said there was a meeting planned for that month to gain a clearer understanding of the plan for Y’s provision and arrangements from September 2024.
29. Around this time Provider C met with Mr and Mrs X. It told the Council it was not the right place to coordinate Y’s alternative provision. It said the two days at Provider B was working well. It suggested some additional alternatives.
30. The pupil referral unit updated the Council that although Y was shown on its roll they had never attended. It was only done remotely to facilitate transport to Provider B. The pupil referral unit said it understood the SEND team was working to find an appropriate placement for Y and it said it could not meet Y’s needs. The Council updated Mr and Mrs X that Y would not be going to Provider C. It would look at sourcing an education otherwise than at school package.
31. In June 2024 a Council manager contacted Mr X and apologised for the delays. They said they understood Y’s attendance at Provider B had increased and consideration was being given to other alternative provision. After chasing the further response to his complaint and receiving no response, Mr X asked to go to stage two of the Council’s complaints procedure.
32. Mr X contacted the Council in July 2024 asking for an update on what was happening from the next school term.
33. The Council responded at stage two of its complaints’ procedure. It summarised what had happened and confirmed an amendment notice would be issued with the aim to finalise Y’s EHC Plan by September. It upheld that Y had not received appropriate education provision and that they had not received appropriate support from the SEND team. It acknowledged there was poor communication and significant delays in arranging support. It apologised. It said this was a service wide issue as the demand for EHC Plans and annual reviews was too great for the resource within the SEND team. It was therefore undergoing a recruitment drive with the aim of significantly increasing the staff within the SEND service.
34. It apologised for the delays in the complaints process. It said, going forward, its Customer Experience Team was working closely with the SEND Service in managing complaints to ensure timescales were met and overall case management adhered to in line with the complaints policy.
35. In early August 2024 the Council issued an amendment notice.
36. In September 2024 Provider B contacted Mr X. Although the Council had now approved three days of provision, by the time it had received funding there were no additional days available for Y. Y therefore continue to receive two days a week of provision.
37. In late September 2024 the Council approved an additional day of education support at another location.
38. In early October 2024 the Council issued Y’s final EHC Plan. This set out a package of education otherwise than at school from September 2024 to July 2025. This included:
• two days a week vocational skills,
• individual tutoring for maths and English for a minimum of one hour each a week,
• dedicated career development support for Y,
• weekly social mentoring of two hours
• weekly sporting/well being activity
• one day a week life skills learning.

Findings

39. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion. The Council was aware in May 2023 that Y was excluded from school. From day six it was therefore under a duty to arrange suitable education. The Council did not arrange any provision for Y until September 2023. This delay was fault. Although Y was placed on the roll of a pupil referral unit, this was to give Y access to Provider B and Y did not receive any education from the pupil referral unit.
40. Y has an EHC Plan. The Council was under a duty to ensure Y received the provision set out in their EHC Plan. Other than the two days at Provider B, Y did not receive any of the specialist provision set out in their plan between May 2023 and October 2024. This was fault.
41. The Council arranged an annual review following Y’s exclusion. It delayed issuing an amendment notice and a final amended EHC Plan. The Council should have issued the Plan within 12 weeks of the date of the review meeting, so by September 2023. It did not issue the Plan until January 2024, 16 weeks late. This delay was fault.
42. Mr X had a right of appeal against the provision in the Plan but I do not consider it was reasonable for him to have used that right. This is because it named a school which was not in existence, the Council agreed to another review of the Plan and proposed a package of education other than at school which Mr X agreed to.
43. The Council also delayed responding to Mr X’s complaint. This was fault. When it did respond it upheld that:
• Y did not receive an appropriate educational provision.
• The SEND Team failed to provide appropriate support.
• Communication was poor with continued delays.
• There were delays in Mr X’s service requests around SEND support.
• There were delays with the complaints process.
44. The Council apologised for the injustice caused, which was appropriate, but it did not offer any additional remedy to acknowledge the impact on Y and Mr X.
45. The Council issued a final EHC Plan setting out education other than at school for Y in October 2024. If Mr X disagreed with the Plan, it was open to him to appeal. If Mr X is unhappy with the delivery of Y’s provision as set out in the Plan from October 2024 onwards it is open to him to complain to the Council and then again to us.
46. Y missed a significant amount of education between May 2023 and October 2024, including no provision at all between May and September 2023. Even after it reviewed Y’s EHC Plan in January 2024, the Council was unable to secure the specialist provision set out in the Plan. This is likely to have impacted on Y’s education and caused Mr X distress and frustration. The Council’s poor communication with Mr X and delays in responding to his complaint added to his frustration.
47. Through previous casework, we have already identified issues regarding delay in EHC Plans and annual reviews and a failure to make alternative provision. We have made service improvement recommendations which the Council is already acting upon. It has produced an action plan and so no further service improvements are necessary at this time. We will continue to monitor its progress through our casework and through regular meetings with the Council.

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Agreed Action

48. Within one month of the final decision, the Council has agreed to:
1. pay Mr X £500 to acknowledge the distress and frustration he was caused by the faults identified.
2. pay Mr X £6,000 to acknowledge the lack of provision and appropriate alternative provision for Y from May 2023 to October 2024. This is calculated at £1,500 a term for four terms. In line with our guidance on remedies, in calculating this figure, I have considered the amount of provision in place, Y’s needs and their school year.
49. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

50. I found 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