Summary: We found fault by the Council on Mr M’s complaint about its failure to provide his son with suitable alternative education provision following his permanent exclusion in June 2021. It failed to communicate properly with him, show how it assessed his needs when allocating a placement, consider and assess different options, and review provision. The agreed action remedies the injustice caused.

The complaint

1. Mr M complains the Council failed to provide suitable alternative education provision for his son from June 2021 after his permanent exclusion from school; as a result, his son’s mental health suffered, he sat fewer GCSEs than he would have done, lost the opportunity to take mock exams, he and the family suffered increasing levels of stress and anxiety, and he lost education at a crucial point in his educational career.

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What I have and have not investigated

2. I have not investigated actions of any school involved. This is because we do not have jurisdiction to investigate schools.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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Relevant law

8. A child with special educational needs may have an EHC plan. This 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 education or name a different school. Only a tribunal can do this.

Alternative education

9. 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.
10. 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)
11. Statutory guidance ‘Ensuring a good education for children who cannot attend school because of health needs’ says councils should:

• provide suitable full-time education as soon as it is clear the child will be away from school for 15 days or more;
• address the needs of individual children in arranging provision and not withhold or reduce provision because of how much it will cost; meeting the child’s needs and providing a good education must be the determining factors; and
• arrange alternative provision as quickly as possible where it is identified it is required and make every effort to minimise the disruption to a child’s education.

12. The guidance says, if a child receives one-to-one provision, the hours of
    face-to-face provision could be fewer than provided in full-time education, as the provision is more concentrated.
13. We issued a Focus Report in September 2011, amended in June 2016, ‘Out of school…out of mind?’. This gives guidance on how we expect local authorities to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
14. In the Focus Report, we made recommendations based on examples of good practice seen. Those particularly relevant to this case are that councils should:

• consider the individual circumstances of each case and be aware that, potentially, a council may need to act whatever the reason for absence;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children back into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.

15. Local authorities should:

• Ensure the education the child receives is of good quality, preventing them slipping behind their peers and allowing them to reintegrate back into school as soon as possible.
• When reintegration into a school is anticipated, work with the school to plan for consistent provision during and after the period of education outside school. (‘Ensuring a good education for children who cannot attend school because of health needs’. Statutory guidance for local authorities. January 2013)

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How I considered this complaint

16. I considered all the information Mr M sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr M and the Council. I considered their responses.

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What I found

17. Mr M’s 15-year-old son N, who was in his compulsory school year, was permanently excluded from School A in June 2021. N was due to take up to ten GCSEs in 2022 with good, predicted grades.
18. Mr M says the Council failed to provide him with a place from the sixth day following his exclusion as required, which it does not accept. The Council provided a copy of a letter sent to him on the day of his permanent exclusion confirming it would provide suitable full-time education from the sixth school day of the exclusion. Mr M points out this is not the same as actually having education in place.
19. The Council claimed it allocated him a place at Progress School on the sixth day. Progress Schools are independent secondary schools throughout England which support local authorities and mainstream schools to work with young people who need an alternative education approach. They provide in-school, or online, full-time curriculum for those who cannot attend school for whatever reason.
20. In July, Mr M applied for an EHC plan for N following a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) the same month. Mid-July, he went to an admission meeting at Progress School to agree N’s attendance.
21. Following this, Mr M had concerns N could not complete his GCSEs at this school. This was because he was told while Progress School could provide a GCSE curriculum, this needed him to go to a mainstream school. Mr M was told no mainstream school would accept him because of the risk of N disrupting other children. Progress School wanted N to take vocational courses instead. Mr M says both he and N wanted him to take GCSEs.
22. Mr M also had safeguarding concerns about N going to Progress School. This was because N was easily led and under the influence of another boy who was also excluded from School A and now went to Progress School. The Council confirmed, following a visit to the family, Mr M refused this provision.
23. The same month, N’s GP wrote a letter confirming N had ADHD, had started treatment, and was recently expelled from school A. The GP did not consider Progress School suitable for N as he was at risk of exploitation from the other boy.
24. The Council confirmed it was aware of Mr M’s safeguarding concern but noted an alternative site could have been arranged with a personalised package of provision. Progress School, for example, discussed the possibility of N attending a local secondary school on a part time basis or attending one of its other schools in Liverpool to avoid contact with the other child. The Council failed to provide evidence supporting its claims.
25. The Council explained it is policy for permanently excluded children to go to Progress School. It said this school could meet N’s needs as it was an OFSTED registered provider and able to provide a GCSE curriculum in liaison with other local schools. It could also meet the needs of children with special needs and provide career support. The Council confirmed while it had a wide range of alternative provision for young people, Progress School is for permanently excluded young people. In response to my draft decision, Mr M confirmed they were told only vocational courses were on offer at Progress School. While it could provide a GCSE curriculum, they were also told no school would accept N.
26. When offering Progress School, the Council decided the provision was suitable and would ensure a successful transition to post-16 education. It claimed it took account of N’s mental health and his time available for study. The small learning base was close to his home which would give him some independence in terms of travelling there and for social interactions. Mr M disputes this was suitable as N needed to complete his GCSEs. He argues it took no account of whether it met N’s needs. It only placed him there because it was consistent with policy.
27. Mr M says Progress School only ever sent N copies of past papers.
28. School A provided online work until the end of July and the end of the school year. Progress School offered remote learning because of Mr M’s refusal.
29. In September, the Council agreed to see whether School B could give any support to N as an alternative. Mr M argued he only received support from this school because of his persistence. He had no option but to accept the offer as he was told N was not going to complete his GCSEs. Later that month, he started attending School B but about three weeks later, the placement ended. This was because N was bullied and assaulted by children there. I have seen a record confirming two incidents involving another child towards N. Mr M worried about N’s health and wellbeing.
30. In October, ‘twilight’ schooling was offered when N stopped attending School B. This is teaching outside normal school hours.
31. In November, Mr M told the Council N was not well enough to attend a school setting which was supported by a GP letter. He provided the letter when asked to provide evidence of N being unable to attend school. N stopped attending just before half term.
32. The Council now looked at whether its Home and Continuing Education Service (HCES) could support, by way of small groups, the online provision School B gave. HCES teaching mainly takes place within the home but encourages pupils to go to individual or small group lessons at its central base. The service offers a wide range of subject areas. N began to have access to online learning through HCES but only with Science.
33. The ‘twilight’ sessions started at School B in December. These involved N going in to school after the normal school working day and started with science tuition only. The Council received a home education application from Mr M but he does not recall sending it.
34. From January 2022, N received education from the HCES.
35. From February, N started getting additional lessons for maths. By now he had support for maths, science, and English language through the home learning hub. Mr M was concerned N was behind in his subjects because the Council failed to properly monitor provision. The Council explained while the additional support with other subjects did not start sooner after the school placement broke down in October 2021, it was provided in a way N could be successful and achieve to allow for the next steps in his education.
36. In April, it received medical evidence about his health.
37. N sat and got six GCSEs in June.
38. The Council considered the small group teaching N would have received was of a suitable nature and allowed him some opportunity for socialisation with other year 11 students. The 1:1 teaching helped prevent any slippage. Mr M confirmed N did not receive any small group teaching.
39. An officer wrote to Mr M in September following his complaint noting, ‘There is never one size fits all answer and Progress School was clearly not right for [N]’. In response to my enquiries when asked the basis for this conclusion, the Council merely said N achieved well through its HCES.
40. Mr M claims the exclusion meant N received:

• no education from June 2021 to the end of September;
• no proper education from October until the start of January 2022. Between October and December, he received online learning provision only: and
• no proper education from June 2021 until schooling ended in June 2022.

41. Mr M is unhappy with the Council’s ‘one size fits all’ response to any child permanently excluded from school getting placed automatically at Progress School, its commissioned provision. This is because it takes no account of the individual child’s needs. The Council accepted alternatives should have been considered but noted it does not have a pupil referral unit for permanently excluded young people.
42. Mr M is unhappy N lost the chance to sit mock exams as his friends at School A did, for example, receive careers advice, or information about exam content in advance. Mr M considers N was discriminated against by the Council. The Council explained he was sent past papers, had 1:1 provision, and offered online support through its HCES base.
43. The Council confirmed it received medical evidence about N including educational psychologist reports, a GP letter, ADHD pathway referral, a speech and language report, and a paediatric report as part of the EHC plan application.
44. In response to my draft decision, the Council said:

• At the time of N’s permanent exclusion, it only had provision at Progress Schools and had no Pupil Referral Unit for permanently excluded young people. It accepts alternatives should be considered;
• It informs parents of suitable full-time education after a permanent exclusion, makes home visits to discuss provision. It is committed to continuous improvement and will look again at current procedures and identify further improvements;
• It is currently market testing to have a larger range of provision for permanent exclusions. The increased provision will allow it to meet a wider range of needs;
• HCES is accessed after receipt of a supporting medical letter. N could not have accessed it earlier because of the need for a medical referral;
• The provision put in place was considered suitable, ensure transition to post 16 education, took account of his mental health, and would meet Mr M’s request for N to get support by building up his confidence in a small nurturing environment. The small learning base was close to N’s home and would allow him some independence with travel to and from lessons; and
• Small group teaching was considered suitable in a nurturing environment and allow for socialisation. It allowed for 1:1 teaching to prevent slippage and for N to successfully achieve qualification to access post 16 provision. He was given past papers and offered the option of online support or support in CHES base.

My findings

45. I found fault on this complaint and in reaching this conclusion, took account of the following:
1. The Council’s letter to Mr M at the end of June 2021 said from the sixth day of the exclusion, it would provide N with suitable full-time education. It also said it had arranged for an officer to contact him as soon as possible to discuss ‘the most appropriate Local Authority commissioned placement’ for him for N’s continued educational provision.
2. I have not seen evidence of it doing either by the sixth day. There is no evidence of it telling Mr M what it would put in place or what it had put in place.
3. In addition, the reference to it exploring the most appropriate placement implied there were different options available to N whereas the reality was, Progress School was its only commissioned service for permanently excluded pupils.
4. Mr M had two concerns about Progress School. The first was N not doing GCSEs there. There is nothing to show the Council discussed or addressed this concern with Mr M or explained if GCSEs could be done at this school or at other schools locally through it. This was important as Mr M and N wanted him to take GCSEs.
5. Nor is there evidence showing the Council looked at different options for N which it explored with Mr M or sent or gave him information about alternative options. In its response to our enquiries, the Council accepted it failed to look at alternative options for N.
6. His second concern was about safeguarding N while at Progress School. This was because the boy N was influenced by also now attended it. There is nothing to show the Council addressed this concern. While it said an alternative site could be provided for N, there is nothing to show this was considered and if it was, of officers discussing it with Mr M.
7. There is nothing to show how the Council assessed whether Progress School was suitable for N both academically and in terms of his own health needs when it allocated him a place. There is nothing to show whether it considered if it needed to make an exception to its policy in N’s case by making alternative provision for him.
8. When Mr M later made a formal complaint, a senior officer accepted Progress School was not right for N.
9. In late July 2021, N’s doctor wrote a letter explaining N’s health problem and the concern about the other boy attending the Progress School as well. It also explained N suffered from low mood, hardly left the house, and had low self-esteem. I note this was at the end of the summer school term.
10. The Council arranged for N to attend School B in September but, this placement broke down within a few weeks. After this breakdown, N received online tuition from October until he received some face-to-face limited provision during twilight sessions in December.
11. I have seen nothing showing the Council considered the medical information it had by this time, which included the medical evidence sent in support of his EHC plan. This should have alerted it to the difficulties he faced receiving largely online teaching with little support. There is nothing to show the Council reviewed N’s provision in terms of his ability to manage work online with little or no support or the impact this might have on his mental health.
12. N received wider support from about February 2022 in terms of more subjects after HCES became involved.
13. I am satisfied these failures caused N injustice. N lost the opportunity to have educational provision like that received by his contemporaries. For example, he lost the opportunity to sit mock exams before the real ones and have advance information about possible exam subjects that might have come up. He also had the uncertainty of not knowing whether proper consideration would have resulted in earlier, and more suitable, provision.

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Agreed action

46. I considered our guidance on remedies.
47. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr M a written apology for failing to: provide suitable full time education from the sixth day of N’s permanent exclusion; to communicate fully with him about what provision it had, or would have, in place for N; consider alternative options to Progress School; consider, discuss, and address his concerns about N going to Progress School and not doing GCSEs and safeguarding him; show how it decided Progress School was suitable for his needs; consider and assess how, and if, online provision could meet N’s needs in light of medical evidence.
2. Act to ensure it has procedures in place, so suitable full-time education is provided from the sixth day of a pupil’s permanent exclusion from school.
3. Review how it communicates with parents of pupils and the information it gives them about provision after permanent exclusion.
4. Review how it assesses individual pupils’ needs against its policy of allocating them a place at its commissioned service.
5. Review how it regularly monitors pupils receiving alternative provision.
6. Pay Mr M £2,400 (4 months x £600 for the period October 2021 to January 2022) for the lost educational provision N suffered.
7. Pay Mr M £250 for the distress this caused.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I found fault on Mr M’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman