Summary: Ms X complains the Council failed to provide adequate education for her child Y while excluded from school. We found fault by the Council as it delayed making alternative provision for Y resulting in a loss of educational provision for Y and distress. We recommended the Council apologises and makes a payment to Ms X.

The complaint

1. Ms X complains there were failings in way the Council provided full time education to her child Y after their permanent exclusion from school in April 2024. And to ensure Y returned to full time education at a school placement causing distress and loss of educational provision and opportunity.

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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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)
7. 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

8. I have investigated Ms X’s complaints from the date Y was excluded from school on 24 April 2024 to 29 January 2025 when Ms X made her complaint to us. If Ms X has any further complaints from February 2025 onwards then these will need to be subject to a new complaint to the Council first before referring them to us.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. 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

11. 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.
12. 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)

Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England

13. This states that for permanent exclusions, the local authority must arrange suitable full-time education for the pupil to begin from the 6th school day after the first day the permanent exclusion took place.

The Council’s Fair Access Protocol (FAP)

14. The School Admissions Code (SAC), September 2021, paragraph 3.14 states that each local authority must have a FAP to ensure that unplaced and vulnerable children, and those who are having difficulty in securing a school place in-year, are allocated a school place as quickly as possible.
15. The Council’s FAP says the allocation of pupils who fall under the FA protocols will take place at meetings of the FA panel to ensure places are allocated as quickly as possible. Council officers attend the meetings but the decisions on places are made by the headteachers on the panel.
16. It also says that in most circumstances it is expected that the most appropriate school will be agreed through discussion, and with the agreement of the headteacher of the school at the panel meeting. In these cases, this will constitute agreement that an offer can be made, and a formal offer will be sent to the parent from the Council within three working days of meeting. A copy of the letter will be sent to the receiving school. The expectation is that the pupil will be on the roll of the allocated school within a maximum of 3 school weeks.

What happened

17. On 24 April 2024 Y was permanently excluded from their school I will refer to as School B. School B told Ms X the Council would be responsible for suitable full-time education for Y from 01 May 2024 being 6 days from the exclusion. School B told the Council of the exclusion. The Council accepts it took no action after six days and the statutory 6th day provision was not arranged for Y. The Council says it was due to the officer being newly appointed on the date of Y’s exclusion and so unaware of the case.
18. Ms X contacted the Council in May 2024 for support as it had not been in contact with her about Y. An officer said they would refer Y to an academy for the 6th day provision. But the officer found there were no places available.
19. The Council responded by commissioning an alternative education provider I will call Company C. Company C is accredited by Ofsted and offers provision for secondary age pupils including those with special educational needs and Education Health and Care Plans (EHC Plan). The alternative provision for Y was online provision for 10 hours of English and Maths tuition a week in small group settings starting on 20 May 2024. The Council considered the provision suitable for Y’s needs and was based on Company B’s scheduling model. The Council says Y’s attendance was inconsistent. Ms X says the provision was not suitable for Y due to their difficulties in engaging with it which was stressful for them both. Ms X chased the Council about a school placement for Y.
20. School B’s governing body met in June 2024 to consider Ms X’s appeal against the decision to permanently exclude Y. Ms X attended the meeting. The governing body upheld the decision to exclude. This meant Y’s future school placement could be considered under the FAP as they were deemed suitable for mainstream education.
21. Ms X complained to the Council on 2 July 2024 as she considered it had failed to help her and Y who had been out of school since April 2024. Ms X raised concerns about the online tuition provided by Company C and having to oversee Y’s lessons while working.
22. The Council responded to Ms X’s complaint and:
• Apologised for the lack of communication with her.
• Noted Y had been accessing the online provision from Company C since the exclusion in April 2024 as there had been no alternative provision places available.
• Confirmed it was seeking to secure longer-term education provision for Y, and it had sent a referral to an academy for possible provision. The Council would update Ms X when it received a response.
• Apologised for the extended period taken to source an appropriate alternative provision for Y and for any distress caused.
23. Y’s alternative provision stopped for the summer holidays in July 2024 according to the academic year. The Council says Company C operates in line with the school calendar so started again in September 2024. Company C reported Y did not attend.
24. The Council accepts Ms X was not explicitly informed Company C’s online provision would pause during the holidays, and it did not send her any formal notification. It accepts this was a procedural oversight and had mistakenly assumed Ms X would be aware it would restart in September 2024.
25. Ms X escalated her complaint to stage 2 as she remained unhappy with the Council’s response. Ms X raised concerns about how she had been treated, and Y was still not in education. Ms X said she had not been told the tuition from Company C would end in July 2024. Ms X said she found out from Company C. But she and Y did not intend to engage with it again as she did not consider it suitable for Y. The Council confirmed it accepted Ms X’s issues with communication and improved it as a result.
26. The Council responded and explained as Y’s exclusion had been upheld, they became eligible to be considered under the FAP. It held a meeting each month to consider anyone eligible under this process. Due to the date of Y’s appeal, they missed the June FAP meeting. The Council did not make a decision to include Y in the FAP process in July so they would be considered at the meeting in September 2024. The purpose of the meeting was to agree a mainstream school for Y which was not a continuation of the alternative provision long term.
27. The Council confirmed the FAP process says where a child has been placed through the FAP, parents will be notified and a placement allocated within 20 school days. In Y’s case the school place allocation was due to take place in September 2024 which was over 20 school days. The Council upheld this part of Ms Y’s complaint that a school had not been identified for Y.
28. The Council apologised for the delay in identifying a school place for Y. But said while there had been a delay Y had not been without education, and they had received a suitable education as required. This would continue until the FAP identified a school and Y started at the school. It had a duty to secure suitable education (alternative provision) from the 6th day of the exclusion and Y had been receiving this provision. So, it had fulfilled its obligations. The Council said it would continue to provide this until a school was identified for Y and they started at the setting.
29. The Council said it understood when the outcome of the governing body meeting was passed on the initial placement with Company C was ended. This was done by an academy and not the Council’s team dealing with the exclusion. The Council said it was not told this and so it was unaware there was a period Ms X had been told the Company C tuition had ended. The Council has now changed its processes as a result. This means any changes to alternative provision will only be communicated through the Council.
30. The Fair Access Panel discussed Y on 18 September 2024 and offered a place at a new school I will refer to as School D. The Council told Ms X of the decision. Ms X was unhappy with the offer of the school due to distance and Ofsted rating. Ms X said she understood a Council representative did not attend the FAP meeting to discuss Y leading to the offer of School D.
31. The Council confirmed that while the officer from the Inclusion Team was unable to attend the meeting through illness, there were other Council officers present. Those officers were able to provide the panel with information on Y.
32. Y did not attend School D. The Council says School D did not begin attendance procedures against Ms X and Y as required when the child did not go to the school. It followed up the FAP decision with School D in October and was told Ms X was not engaging with the school. An officer contacted Ms X on 13 December 2024 as a courtesy call to backlog cases. The officer made a tuition request to the placement team for Y and told Ms X of their action. This was despite the provision with Company C continuing ever since Y was made an offer through the FAP in September 2024. The Council says once the FAP decided to allocate Y a school, the responsibility for provision should have transferred to the school allocated.
33. Ms X contacted the Council in January 2025 as Y’s tuition had not started. An officer chased up the tuition and explained it was due to delays with the commissioning process over the Christmas period.
34. The Council accepted one to one tuition for Y from an alternative provision provider starting 20 February 2025. It told Ms X on 20 January 2025 and moved Y from Company C’s provision to the new tuition.

My assessment

35. The Council has confirmed Y’s full-time offer consisted of 10 hours of online tuition a week in small group settings with Company C. It has explained the provision was made as it was unable to provide Y with a placement at another alternative provision provider. The Council confirms it considered it this was suitable provision for Y and was in their best interests. Due to this I am satisfied the Council discharged its s19 duty towards Y by providing the alternative provision with Company C.
36. However, the provision provided to Y was delayed. The Council should have arranged suitable full-time education for Y starting from the 6th school day after the first day of exclusion on 01 May 2024. But Y’s online provision did not start for a further 14 school days until 20 May 2024. This is fault. It has caused an injustice to Ms X and Y though the lack of provision and distress. Therefore, I recommend the Council apologises to Ms X and Y and makes a symbolic payment of £200 to Ms X for Y to acknowledge the impact of that loss of provision and the distress caused.
37. Unfortunately, Ms X was told by an academy in July 2024 the Company C provision had been stopped. However, I cannot say this was fault by the Council as it was not aware of the academy’s actions. The Council has changed its processes as a result which is suitable action for it to take.
38. It is unfortunate Ms X was unaware the online provision from Company C would stop during the school summer holidays and restart in September 2024. The Council has accepted Ms X was not formally told of this which is fault. It has already apologised to Ms X she was not explicitly told. I consider the apology is suitable action for the Council to take. This is because I consider it was reasonable for Ms X to anticipate any alternative provision would stop over the summer holidays. The provision was back in place in September 2024, and it was unfortunate that Y did not engage with it.
39. The documents provided show there was a delay in Y’s case going to the FAP and in Y being allocated a school placement. The Council says it could not send Ys case to the June 2024 meeting due to the date of the school appeal against the exclusion. Officers did not make a decision in July although the Council has not explained why. There was no meeting in August, so September was the next available date. I consider the delay to be fault by the Council as Y’s case should have been expedited to the FAP given the outcome of the exclusion was known in June 2024.
40. The delay has caused an injustice to Ms X and Y due to uncertainty as to Y’s school placement. To remedy the injustice caused I recommend the Council apologises to Ms X and Y for the delay. I consider an apology is sufficient action for the Council to take. This is because I consider that even if Y’s case had gone to the FAP in July 2024, it is likely on the balance of probability the same provision at School D would have been offered as was in September 2024. Ms X has chosen not to send Y there. So, it is unlikely Ms X would have sent Y to School D if the placement had been in place from the start of term in September 2024.
41. Once Y was allocated a place at School D in September 2024 the Council says was for School D to start attendance procedures against Ms X and Y if they did not attend. The Council says it was made aware Y was not attending in a courtesy call to Ms X in December 2024. The Council then made further alternative provision for Y through one-to-one provision even though it had no duty to do so. I do not consider the Council had a statutory duty to check about Y’s attendance at School D once a place was allocated. This is particularly as Y did not have an EHC Plan so did not require any special educational provision. In this case the responsibility for attendance would have been for School D. It was also open to Ms X to have made the Council aware about Y’s lack of attendance before the Council’s courtesy call in December 2024.

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Agreed action

42. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council will:
• Apologise to Ms X for the delay in arranging the 6th day provision and Y’s case being discussed at the Fair Access Panel. 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 in my findings.
• Pay Ms X £200 as a remedy for Y’s benefit, in recognition of the loss of educational support for 14 days and the distress caused.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I find fault causing injustice and have recommended a suitable remedy for the injustice caused in this case.

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Investigator's decision on behalf of the Ombudsman