Summary: Mr and Mrs X complained the Council failed to arrange alternative education for their son Y, amend his Education Health and Care plan and arrange a new school place after he was permanently excluded from school in February 2019. We find the Council was at fault for failing to review Y’s Education Health and Care plan, delaying arranging a new school place and in how it dealt with Mr and Mrs X’s complaint. The Council has agreed to pay a financial remedy to Mr and Mrs X for the uncertainty and frustration caused by its faults and to issue a final amended Education Health and Care plan without delay.

The complaint

1. Mr and Mrs X complained the Council:
1. failed to arrange alternative provision when their son Y was permanently excluded from school in February 2019 and therefore failed to deliver the educational provision specified in his Education, Health and Care (EHC) plan;
2. failed to amend his EHC plan after he was excluded;
3. failed to consult with another school (or tell them the results of the consultation); and
4. victimised them because they made an earlier complaint, which resulted in them being paid £3,000.
2. As a result, Mr and Mrs X say Y missed the education and support he needed between February and October 2019 and they had to educate Y at home, causing them added stress which impacted on Mrs X’s health.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

6. I read the papers provided by Mr and Mrs X’s representative and spoke to Mr X about his complaint.
7. I considered the Council’s comments about the complaint and the supporting documents it provided.
8. I considered the relevant law and guidance.
9. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
10. 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 found

Alternative education

11. Councils must arrange suitable, alternative education for children of school age who have been permanently excluded from school. The education must start on the sixth school day after a child is excluded. (Education Act 1996, section 19 as amended; The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007, regulation 4)
12. The education can be at a school or elsewhere but must be suitable for the child’s age, ability and aptitude, including any special educational needs (SEN). It should be fulltime, unless the physical or mental health of the child means that full-time education would not be in their best interests. (Education Act 1996, section 19 as amended)
13. Full-time education is not defined in law but pupils in alternative provision should receive the same amount of education as they would receive in a maintained school. This is commonly held to be equivalent to between 22 and 25 hours a week, depending on the child’s age. (Alternative provision statutory guidance, paragraph 4)
14. Councils should also keep a full record of all placements they make, including a pupil’s progress, achievements and destination following the placement. (Alternative provision statutory guidance, paragraph 33)
15. The Council provides education for pupils permanently excluded from school though its Pupil Referral Units (PRUs). PRUs are a type of school that caters for children who cannot attend a mainstream school.

Education health and care plans

16. An EHC plan is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
17. The Special educational needs and disability code of practice: 0 to 25 years (the Code) says:
• Councils must review EHC plans at least yearly.
• Following a review, councils must send parents a decision notice within four weeks confirming if the EHC plan is to continue, be amended, or if it is to end.
• If the EHC plan needs amendments, the Code states councils should “start the process of amendment without delay”. The council must send the parents a copy of the existing plan with a notice explaining the proposed amendments and the evidence for these. It must then issue the amended EHC plan within eight weeks of the amendment notice.
• Where parents ask for a particular school, councils must name that school in the EHC plan unless:
1. the school would be unsuitable for the child, or,
2. the child’s attendance would be incompatible with the efficient education of other children at the school or the efficient use of resources.
• Councils must consult the parent’s preferred school and consider its comments before deciding whether to the name the school in the EHC plan. Schools consulted should respond within 15 days.

The Ombudsman cannot change the contents of the EHC plan or name a different school. These are appealable to the Special Educational Needs and Disability Tribunal (SEND).

Council’s complaints policy

18. The Council has a three stage complaints policy:
• Stage 1 – an informal stage which aims to resolve a complaint immediately;
• Stage 2 – the relevant service will investigate the complaint and respond within 15 days;
• Stage 3 – if someone is not satisfied with the stage 2 decision, an independent officer will review the complaint and respond within 20 working days.

Background

19. Y has special educational needs and the Council issued his first EHC plan in 2015. The EHC plan was reviewed in July 2018; before Y transferred to School A, a mainstream secondary school, from September 2018. That plan said Y needed support to concentrate and complete tasks, extra staff to build a rapport with Y and one-to-one time to discuss challenging situations.
20. School A carried out an emergency review of Y’s EHC plan in November 2018. However, the Council did not provide a final amended EHC plan following that review meeting.

What happened

21. School A permanently excluded Y in February 2019, just before the half-term holiday. School A told the Council about the exclusion on the day it excluded Y.
22. The Council offered Y a place at its local PRU on 21 March 2019, 5 weeks after the exclusion. Mr and Mrs X told the Council the PRU was not suitable for Y because of his needs and they wanted Y to attend another mainstream school, School B. Mr and Mrs X’s solicitor also said it asked the Council to consult with School B and to amend Y’s EHC plan.
23. The following day the Council consulted School B about admitting Y. School B responded to the Council after 12 days saying that it did not think it was a suitable school for Y.
24. On 27 March 2019, the Council asked a home tutoring agency to arrange full-time home tuition for Y. The Council did not have further contact with Mr and Mrs X.
25. In early June, Mr and Mrs X’s solicitor complained to the Council about the lack of education for Y and that the Council had not amended his EHC plan after he was excluded. The solicitor also alleged the Council was victimising Mr and Mrs X.
26. The Council replied in early August, two months later. It said it had consulted with School B in March 2019 but it had stated they could not meet Y’s needs. It said it had offered Y home tuition but Mr and Mrs X had not accepted the offer. It said it had referred Y for home tuition again until the Council identified a permanent placement for Y. It said it intended to contact School B again after the summer holidays to identify the level of support it would need to admit Y. It did not mention reviewing Y’s EHC plan or the claimed victimisation.
27. Mr and Mrs X’s solicitor asked the Council to review the complaint under stage 3 because it had not addressed all Mr and Mrs X’s concerns and so they could complain to the Ombudsman.
28. However, the Council decided, “to avoid escalating [the complaint] to a Stage 3”. Instead, it told Mr and Mrs X’s solicitor it would issue a response to the November 2018 EHC plan by the end of August and it still intended to discuss a place for Y with School B. It then closed the complaint without telling Mr and Mrs X or their solicitor. The Council did not send a response or the amended EHC plan for the November 2018 review.
29. In September 2019, the Council directed School B to admit Y from the start of November 2019. It told Mr and Mrs X, who agreed to home tuition for Y until he started at School B. The Council provided home tuition between the end of September and the end of October 2019.
30. Y attended School B from the start of term in November 2019.

My findings

a) Lack of educational provision and failure to provide education as set out in Y’s EHC plan.

31. Councils must arrange alternative education within six school days following a permanent exclusion. Y was excluded on 14 February 2019. Therefore, allowing for the half-term holiday, the Council should have made alternative provision by 28 February.
32. The Council first offered Y a place in the PRU however his parents rejected that as unsuitable. The Council appears to have accepted the PRU was unsuitable and offered Y home tutoring from 25 March. That was a delay of three and a half weeks following his exclusion. This was fault.
33. Although the Council’s delay in arranging suitable alternative education was fault, I cannot say that fault caused Y an injustice. That is because Mr and Mrs X refused to accept the offer of home tuition until 13 September 2019; therefore even if the Council had offered it earlier, it is unlikely they would have accepted it.
34. Councils should keep a record of alternative provision placements they make, including a pupil’s progress.
35. The Council did not follow up on the first referral it made for home tuition and there is no record of what action the Council took when Mr and Mrs X did not engage with the referral. This was also fault.
36. However, for the reason given in paragraph 35, I cannot say this caused Y and injustice.

b) Failure to review Y’s EHC plan

37. The Code says councils should review the EHC plan at least yearly. However, they can also consider an early review where there is a change in the young person’s circumstances. The Council said it did not consider reviewing Y’s EHC plan when he was excluded. This was fault.
38. We would have expected the Council to have considered holding an urgent review of Y’s EHC plan following his exclusion from School A because:
• the named provision in Y’s EHC plan was no-longer available;
• the exclusion suggested a possible change in Y’s needs; and
• Mr and Mrs X’s solicitors asked it to amend the plan.
39. Following Mr and Mrs X’s complaint in June 2019, the Council said it would consider amending Y’s plan following the November 2018 review. The Council did not acknowledge it should have already sent a decision notice four weeks following that review; and it had already significantly delayed in issuing the final amended EHC plan. That was fault. In addition, the Council did not contact Mr and Mrs X about amending the plan following the November 2018 review. The Council also failed to complete Y’s annual review in November 2019. That was also fault.
40. The failure to review Y’s EHC plan did not cause Y to miss out on education. This is because the Council offered suitable alternative education but Mr and Mrs X refused to accept the offer of home tuition until 13 September 2019. However, the lack of review meant the Council did not have an up-to-date assessment of Y’s needs. Although the Council says it reviewed Y’s EHC plan again in July 2020, it has not yet provided a final, amended plan.
41. The Council’s delays in issuing any decision notices, or the final amended EHC plan has deprived Mr and Mrs X of their right to appeal the content of the EHC plan. However, I cannot say what other injustice this caused to Mr and Mrs X or Y. This is because Y does not have an up-to-date EHC plan, so it is not clear if they would want to appeal. However, it has caused avoidable frustration and uncertainty about what provision should be specified in the EHC plan.

c) Failure to consult with school B

42. The Council consulted with School B immediately after School A excluded him. School B told the Council it did not want to admit Y. The Council failed to tell Mr and Mrs X about School B’s response. That was fault which caused Mr and Mrs X avoidable frustration as they were not told about the outcome until after they complained.
43. If parents of a child with an EHC plan request a specific school, the Council must comply with that request unless it would:
1. the school would be unsuitable for the child; or
2. the child’s attendance would be incompatible with the efficient education of other children at the school or the efficient use of resources.
44. School B did not give either of these reasons for not wanting to admit Y.
45. It is not clear what steps the Council took between April and September 2019 to secure Y a place at School B. However, there was a delay of over five months in the Council arranging the place. That delay was fault.
46. Had the Council acted more quickly in directing School B to admit Y, it is likely Y could have attended School B sooner. The delay caused Mr and Mrs X avoidable frustration, distress and uncertainty about when Y would be able to return to school.
47. However, I cannot say the delay caused Y to miss education. This is because the Council offered suitable alternative education but Mr and Mrs X refused to accept the offer of home tuition until 13 September 2019.

d) Victimisation of Mr and Mrs X

48. Mr and Mrs X say the Council victimised them because they previously made a successful complaint.
49. I do not find the Council deliberately delayed either reviewing the EHC plan or finding a school place for Y and the faults are the result of wider service failures.

How the Council dealt with Mr and Mrs X’s complaint

50. Mr and Mrs X’s solicitor complained to the Council in June 2019. It is clear from their letter that this was a formal complaint, so the Council should have responded under stage 2, within 15 days.
51. However, the Council took two months to respond to the complaint. In its response the Council did not address Mr and Mrs X’s request to amend Y’s EHC plan or the claim of victimisation. That was fault.
52. When Mr and Mrs X’s solicitor asked the Council to review the complaint under stage 3, the Council deliberately tried to avoid moving the complaint to stage 3. It did not carry out an independent investigation. Instead, it sent a short reply to Mr and Mrs X’s solicitor and closed the complaint. That was fault
53. In its response my enquiries, the Council accepts that “not all previous complaints were responded to in a timely manner” and offered its apologies to Mr and Mrs X.
54. How the Council has responded to Mr and Mrs X’s complaint contributed to the avoidable uncertainty and frustration caused to Mr and Mrs X. They have been put to avoidable time and trouble having to chase the Council for not resolving their complaints.

Agreed action

55. Within one month of my final decision the Council has agreed to:
• Apologise to Mr and Mrs X and pay Mr and Mrs X a financial remedy of £200 to recognise the avoidable frustration, distress and uncertainty to Mr and Mrs X caused by the delay in finding a suitable school place for Y.
• Pay Mr and Mrs X a financial remedy of £100 for the Council’s complaint handling and lack of communication that put them avoidable time and trouble in pursuing their complaint.
• Remind staff of the need to consider an emergency review of EHC plans if there is a significant change in young person’s circumstances.
56. The Council has also agreed to issue Y’s final, amended EHC plan without delay.
57. I have not made other wider service improvement recommendations because the Council is currently reviewing its Special Educational Needs Assessment and Review service. The Council says this includes:
• assigning link professionals to ensure communication and processes are followed in a lawful and timely way;
• providing staff with extra training; and
• a new leadership structure.

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Final decision

58. The Council was at fault for failing to review Y’s Education Health and Care plan, delaying arranging a new school place and in how it dealt with Mr and Mrs X’s complaint. It has agreed to my recommendations and this remedies any injustice caused, therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman