Summary: Miss X complained the Council failed to provide a suitable education for her son following an exclusion. We found there was a lack of alternative provision. There was also a delay in completing the 2024 Education Health and Care Plan review process. We recommended an apology and a payment to recognise the injustice caused by the fault.

The complaint

1. Miss X complains the Council failed to provide suitable education for her son, Y. This caused him to miss out on education, affected their mental health and meant Miss X was unable to work.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. 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(1), as amended)
5. 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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What I have and have not investigated

6. We have investigated the period from September 2024 (the date of an Education Health and Care Plan review) to January 2025 (when Miss X brought her complaint to us). We have not investigated older events because we consider a complaint about events prior to September 2024 would be late. The older events refer to previous periods of Y’s education and historical issues with social care support and respite Miss X requested when Y was out of school. The law says we cannot investigate late complaints unless we decide there are good reasons. (Local Government Act 1974, sections 26B and 34D, as amended). While we understand the situation was difficult, we consider it would have been reasonable to have expected Miss X to complain about the events between 2023 and September 2024 sooner.
7. In addition, the law says we cannot normally investigate a complaint when someone has a right of appeal to a tribunal about the same matter. When an Education Health and Care Plan (EHC Plan) was issued in November 2023, this gave Miss X the right to appeal the content and named school. We consider that issues about the provision of education cannot be separated from the suitability of the EHC Plan content, which may be appealed when the EHC plan was issued. So, for this reason too, we could not investigate the lack of educational provision from November 2023 until the annual review in September 2024.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss X 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

Special Educational Needs (SEN) Statutory Guidance

10. Statutory guidance states that councils must arrange for an Education Health and Care Plan (EHC Plan) to be reviewed at least once a year to make sure it is up to date. Councils must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The process is only complete when a council issues a decision about the review.
11. Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

Permanent 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. 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.

Provision of Education

13. 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.
14. In cases where a child is permanently excluded from a school, the law says that alternative provision must be arranged for the child from the sixth day after the exclusion. This is set out in The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870), and accompanying statutory guidance.

Background

15. Miss X’s son, referred to as Y in this statement, is autistic and has developmental delay. Y has an Education Health and Care Plan (EHC Plan). He has significant communication needs and his communication skills are significantly affected by his emotional state. Y finds the school environment very challenging. He struggles to follow rules and requests from adults while at school. When Y is distressed, this leads to difficult behaviours.
16. The Council issued Y with new EHC Plan in November 2023 which named School A from September 2023 onwards. The EHC Plan described the support Y needed in a school environment.

What Happened

17. Y started to attend School A in September 2024. However, this was minimal attendance to begin with. He only began attending for 30 minutes per day, three days per week. On the third day, there was an incident in which Y was dysregulated and aggressive towards teaching staff.
18. That day, School A wrote to Miss X to state it had permanently excluded Y as a result of the incident. It noted the school was responsible for providing work for the first 5 days of an exclusion, until 4 October, and the Council was responsible for provision from the 6th day after the exclusion.
19. School A contacted Miss X by email on 1 October to offer a pack of work that Y could use during the initial period of his exclusion. It says it received no response.
20. On 4 October School A contacted the Council to ask if alternative education had been arranged for Y. The school also contacted Miss X asking if the Council had arranged provision. Later that day the School stated they had reviewed a list of potential alternative education providers and identified only one that may be suitable for Y; Provider B. They suggested a meeting the following week to discuss this.
21. School A stated they received no response to the 4 October email but on 14 October School A had an online meeting with Miss X and council officers. School A stated they held the meeting because they had cancelled the permanent exclusion. This was because they were aware Provider B could potentially meet Y’s needs. Miss X agreed to School A pursuing the placement.
22. An Annual Review of Y’s EHC Plan took place the following week on 21 October 2024. Miss X queried who would be named on the EHC Plan. She was concerned that School A had not provided Y with education and a new provider was now proposed. Various amendments to the EHC Plan were discussed. School A stated, as it was named in the EHC Plan, it would oversee any alternative provision. Miss X stated she had agreed to a referral to Provider B but she highlighted this would still only be part-time provision and she would need to care for Y at other times. She was clear that she did not want to home educate Y.
23. The Council says between October and December various emails were exchanged between School A and Provider B.
24. On 7 November Provider B carried out a detailed assessment to determine Y’s needs and its staffing requirements. Following this they stated they were happy to provide a placement based on 1:1 staffing, provided the sessions were done in the home and Miss X supported them and accompanied them on any outings. Miss X did not want Y’s education to be permanently in the home (she was happy for a few indication sessions there). As a result, Provider B stated they needed funding for 2:1 support and they would need to recruit a male member of staff. They stated they needed confirmation the Council agreed to the various costs involved before they started planning and looking for a venue.
25. On 11 November 2024 School A wrote to Miss X to confirm it had cancelled Y’s permanent exclusion because appropriate alternative education provision had been identified with the intention of supporting Y’s transition back into an educational setting.
26. On 12 November School A asked Miss X to reconsider if education could be at home and so she was there to support Provider B. She replied promptly on 14 November explaining her position on this was unchanged.
27. On 18 November School A (on behalf of the Council) agreed to Provider B progressing the placement on a 2:1 staffing basis.
28. On 2 December Miss X chased progress. She also questioned why School A was named on Y’s EHC Plan if they were only brokering education from another provider.
29. On 19 December Provider B explained they had been unable to find someone for the required role. They had found someone suitable but they could only work two days per week, Y needed sessions spread over three days. They suggested they could still proceed with 1:1 if it was in home with Miss X supporting or it could provide longer sessions over two not three days. This was put to Miss X on 19 December. The Council says she did not respond to the proposal.
30. The school term ended on 20 December and the Council’s records indicated that unless Miss X agreed to changes to the plans (which she had already indicated were unacceptable) the Council would have to look at it again in the new year.
31. As at 8 January, Provider B explained, despite best efforts, they had been unable to find a suitable staff member in the area. As a result, they had stopped recruiting. Unless they could work with Y from Miss X’s home or they could make the provision over less days, they could not fulfil Y’s placement.
32. On 13 January 2025 the Council issued a notice to Miss X confirming it did not intend to amend the EHC Plan. I understand this notice related to the Annual Review of Y’s EHC Plan carried out in October 2024.
33. The placement with Provider B did not begin because they had been unable to recruit a member of staff they needed. There is evidence in January 2025 the Council continued to seek another provider which eventually resulted in provision being put in place.

Was there fault by the Council

Provision

34. When a pupil is excluded, the law says they must be provided with alternative education by the Council from the 6th day after their exclusion. In Y’s case, he should have been provided with alternative education from 4 October.
35. On 4 October School A invited Miss X meeting the following week to discuss Provider B making provision. There was a slight delay in Miss X’s response, but the meeting took place on 14 October, so this was not significant. In any event, provision should have been in place by 4 October. The lack of provision from day six of Y’s exclusion represents fault by the Council.
36. When the school cancelled Y’s permanent exclusion, it made clear that this was because an alternative education provider had been identified. Y was not invited to return to School A, and he did not begin to receive any education from School A. The law states that the Council has a duty under Section 19 to provide an education if it is clear that a pupil would not receive suitable education without such arrangements. The Council was evidently aware that Y was not receiving an education while excluded, or following the cancellation of his exclusion.
37. I recognise the Council noted, at times, Miss X did not respond to communications. However, I found there was no lack of response in the period we are considering that significantly affected the progress to find alternative education for Y.
38. Despite efforts by School A on behalf of the Council, Provider B was unable to provide a placement for Y. Because this placement did not come to fruition, Y did not receive any alternative provision from the 6th day of his exclusion up to the point the Council responded to the complaint in January 2025. While the situation was difficult, the lack of provision represents fault by the Council.
39. 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 acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as the severity of the child’s SEN, whether any provision was made available and whether the school year was a significant one for the child. I understand Y received no educational provision between October 2024 and January 2025 when Miss X made her complaint. Based on this and Y’s circumstances overall, I have recommended a remedy based on £2,000 per term, for one term.

Delayed EHC Plan Review Outcome

40. SEN statutory guidance states that EHC Plans should be reviewed annually. A notice must be issued to the child’s parents within four weeks of the review meeting to confirm whether a council will maintain, amend or discontinue the EHC Plan. The review process is only complete when this has been sent. The notice also allows the parents to appeal the outcome if they disagree. In Y’s case the Council held an annual review of Y’s EHC Plan in October 2024 but it did not send a notice to Miss X confirming the outcome for three months until January 2025. This was well outside the statutory timescales and frustrated her right of appeal. The delay in issuing this notice was fault by the Council. The correspondence between the Council and Miss X indicates some disagreement about the continued naming of School A, so it was possible Miss X may have wished to appeal.

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Action

41. Within four weeks of my final decision:
42. The Council should provide a written apology to Miss X and to Y for the impact of the delay in providing alternative education and delay sending Miss X the outcome of Y’s Education Health and Care Plan review.
43. To recognise the distress caused to Miss X by the delay in providing Y with alternative education, and by the delay in providing the outcome of Y’s Education Health and Care Plan review, I recommend the Council pays her £300.
44. To recognise the delay in providing Y with suitable education between October 2024 and January 2025, the Council should make a payment to Miss X, for Y, of £2,000.
45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I have completed my investigation and uphold Miss X’s complaint. There was fault causing injustice.

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Investigator's decision on behalf of the Ombudsman