Summary: Ms X complained that the Council failed to provide suitable education to her daughter after she was permanently excluded from school. We have found no fault with the Council. It met its statutory duties to Ms X’s daughter by offering what it considered to be suitable education and considering Ms X’s objections before making its decision. As there was no fault in how the Council decided the education was suitable for Y, we have no power to question its judgment.

The complaint

1. Ms X complains that, after her daughter, Y, was permanently excluded from school, the Council left her without suitable education for five months. Ms X says the Council tried to provide education to Y, but it was unsuitable for her complex needs.
2. Ms X says this matter caused Y to miss out on education and caused the whole family distress.

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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 a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We 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)
6. 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.
7. If we are satisfied with a council’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

8. I considered evidence provided by Ms X and the Council as well as relevant law and guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

10. Councils must arrange suitable education for children 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). We refer to this as ‘alternative provision’.
11. Full-time education for excluded pupils must begin no later than the sixth day of the exclusion. (Archived statutory guidance, ‘Alternative provision’, 2013)
12. When a council is considering whether to deliver alternative provision, the “acid test” is whether the education already on offer to the child is “available and accessible” to them. (R (on the application of DS) v Wolverhampton City Council 2017)
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.
14. Statutory government guidance (the ‘SEND code of practice’) says that, within four weeks of an annual review, the council must write to the child’s parent and tell them whether it has decided to keep the EHC plan as it is, amend it or cease it.
15. If the council has decided to amend the plan, it must do so and issue a new one within a further eight weeks.

What happened

16. In mid-June 2023, Y was suspended by her school. The school offered online tuition to Y while she was suspended.
17. The Council told Ms X that, while Y’s school continued to make education available to her, the Council would not put any alternatives in place. It did, however, agree to amend Y’s EHC plan. It also agreed to deliver Y’s speech therapy either at home or online while she was not in school.
18. The following week, Y’s school permanently excluded her. Ms X informed the Council and asked for a package of ‘education other than at school’ (EOTAS). She said she did not want Y to go to the local alternative academy (‘School A’), which delivers education to children who have been permanently excluded. She said:

[School A] is not an option and will destroy my daughter and her education [and her ability] to meet her full potential … [Y] has [severe] communication and interaction needs … [and] staff in mainstream schools are not upskilled to support a child with … needs as severe as [Y’s].

19. The Council told Ms X that it would not agree EOTAS for Y, because her needs could be met in a school setting. It said Y would attend School A until it could find a new, permanent school for her, and it would deliver her speech therapy online.
20. In July, the Council met with Ms X, who said she did not want Y to go to School A. She said she was appealing the permanent exclusion and would only consider Y either returning to her previous school or receiving EOTAS.
21. Two days later, the Council met with Ms X again, with School A. Ms X raised concerns that, as Y was vulnerable, she would not have a suitable peer group there. School A’s view was that she would, in fact, have a suitable peer group on-site.
22. Following this meeting, Ms X told the Council, again, that she was “strongly against” Y going to School A. She said she believed Y would not cope.
23. In response, the Council told Ms X that School A offered a full-time timetable which was a much better offer than the tuition she was seeking. It said it believed School A was suitable and could meet Y’s needs, so it would not offer an alternative while it found a new permanent school for Y.
24. The Council put Y on School A’s roll in mid-July.
25. The Council consulted several permanent schools for Y, but, by mid-September, had not yet found anywhere. Ms X continued to express her preference for EOTAS and her objections to School A as an interim placement.
26. Later in the month, Y’s previous school upheld her permanent exclusion, ending any chance that she could return. The Council confirmed to Ms X that School A remained available to Y while it consulted permanent schools.
27. In late September and early October, Ms X provided more information to the Council about her preference for EOTAS. She also provided a letter from Y’s GP in support of this.
28. In mid-October, the Council found a suitable permanent school for Y and issued her amended EHC plan, with the new school named. The Council told Ms X that it had needed to wait until her appeal against Y’s permanent exclusion had been exhausted before it could do this.

My findings

29. Ms X’s preference for EOTAS must, for the purpose of my investigation, be separated into two parts: her wish for Y to receive home tuition as an interim measure following her exclusion, and her wish for Y to receive EOTAS on a permanent basis.
30. The Council’s decision to name a new school in Y’s amended EHC plan in October 2023 – and therefore to deny her EOTAS on a permanent basis – was something which, had Ms X been dissatisfied, she could have appealed to the Tribunal (and may well have done).
31. For this reason, and because our role cannot overlap that of the Tribunal, I cannot comment on the Council’s refusal to put EOTAS in Y’s EHC plan.
32. However, it is also clear that Ms X wanted Y to receive home tuition (even if this was not formalised as ‘EOTAS’) as an interim measure following her exclusion.
33. It is for councils to decide what education is suitable for permanently excluded pupils. The Ombudsman cannot overrule a council’s judgment as long as it has met its statutory duties – and acted reasonably – in offering education.
34. In Y’s case, the Council made School A – which it believed was suitable for her – available to her following her exclusion. Ms X did not like School A, and did not want Y to go there. But this did not mean it was unsuitable.
35. The Council considered Ms X’s views, but disagreed with her, and explained why. Ms X did not provide any evidence (such as medical evidence) why Y could not go to School A, other than her own personal objections. Although she provided a GP letter later on, this was too late to have had any bearing on the Council’s interim offer of education.
36. For these reasons, I have found no fault with how the Council decided that School A was suitable for Y, and therefore I have no power to question its judgment.
37. The Council did cause some delays in its handling of Y’s case. It was around three weeks late finalising her interim education. And it was around six school weeks late finding her a new permanent school.
38. However, these matters were not significant enough to justify finding that the Council was at fault. This is because:
• There is no reason, from Ms X’s correspondence, to suggest that she would have been more likely to send Y to School A if it had been available three weeks earlier. This means Y suffered no injustice from the delay.
• The Council’s explanation for the delay amending Y’s EHC plan – that it could not do this until Ms X’s appeal against Y’s permanent exclusion had been resolved – was reasonable.
• There was no significant delay after Y’s exclusion had been upheld in late September.
• Y had suitable education available to her while she was waiting for the Council to find her new school.
• Y received the speech therapy she needed throughout the period she was without a permanent school.
39. With this in mind, I will end my investigation without finding fault with the Council.

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Decision

40. The Council was not at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman