Summary: There is no evidence a delay in arranging a school placement for a child with an education, health and care plan was due to fault by the Council; and nor can we say any omission by the Council was responsible for a subsequent deterioration in the child’s behaviour, which led to his exclusion. We are unable to investigate a complaint about the alternative provision subsequently offered to the child, because it is linked to a matter which carried a right of appeal. There was some fault by the Council in its handling of the independent review against the child’s exclusion, for which it has agreed to apologise and circulate guidance to staff.

The complaint

1. I will refer to the complainant as Mrs F.
2. Mrs F complains the Council did not act promptly to arrange a school placement for her son, B, when her family moved into the Council’s area in August 2022. Although the Council arranged a place for the beginning of the school year, Mrs F says the delay meant the school could not arrange the provision set out in B’s EHC plan; and this lack of support led to his permanent exclusion in November. Since then B has had little to no education.
3. Mrs F also says she asked the Council to review the school’s decision to exclude B, but she complains this process was also delayed, and that the Council based its decision on the view of an officer who did not attend the review meeting and had not met B.

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The Ombudsman’s role and powers

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

8. I reviewed Mrs F’s correspondence with the Council, B’s EHC plan, the school’s notes and records about its decision to exclude B, the school’s governors’ review of the decision, and the records of the independent review panel’s decision.
9. I also shared a draft copy of this decision with each party for their comments.

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What I found

10. The following is a summary of the key events relevant to Mrs F’s complaint. It is not intended to provide a comprehensive account of everything which happened or every detail of correspondence between the parties.
11. Mrs F has three children of whom B is the oldest. B has been diagnosed with developmental and behaviour disorders and is subject to an education, health and care (EHC) plan.
12. In August 2022 the family moved to Sheffield. Before this B had been attending a small school in a different local authority area. I understand he was well settled there, with the support set out in his EHC plan.
13. Mrs F says she contacted the Council in May 2022 to notify it of their intention to move, and that the children needed school places. Mrs F identified a particular school she wished all three to attend, to which I will refer as School 1. Mrs F says School 1 confirmed in June it had places for the two younger children, but could not offer B a place without the Council’s agreement.
14. The Council says it received formal notification from the other local authority on 4 August B would be transferring to its area. Under such circumstances councils have 15 days to consult with schools to identify a suitable placement, but as this was during the summer holiday the consultation period did not start until the beginning of the new term in September.
15. Mrs F emailed the Council to make a complaint on 2 September. She accused it of disability discrimination, because she had been unable to apply for a school placement for B via the normal admissions process. Mrs F said she had had some contact with the Council in August after it had received the formal transfer notification from the other local authority, but no placement had yet been confirmed for B which meant he would not start school at the beginning of the year, which was three days away.
16. Mrs F said that, while writing the email, she had received a call from a Council officer who had made the necessary arrangements for B to begin school on 5 September. Mrs F commended this officer and expressed gratitude for her work, but maintained that she wished the Council to investigate her complaint.
17. After receiving no response Mrs F wrote again to the Council’s Chief Executive on 15 September. The following day the Council’s Director of Education and Skills wrote to Mrs F to explain the Council had followed the correct statutory process for consulting with schools after a transfer.
18. In October School 1 contacted the Council to say B was not coping at school. He had assaulted a member of staff and another pupil, leading to a temporary exclusion, and did not spend much time in lessons. The school asked what support it could access from the Council.
19. In November B was involved in a serious incident, during which damaged school property and assaulted several members of staff, with one requiring medical treatment. The school then permanently excluded him, a decision which the school governors upheld upon review in December.
20. In December the Council held an emergency review of B’s EHC plan. During the review Mrs F said she did not wish B to attend the local pupil referral unit (PRU), which is where the Council had referred him. She named several other schools she considered would be suitable for B, including one in particular I will refer to as School 2. The Council sent consultations to these schools, but asked Mrs F to visit the PRU.
21. Between January and February, Mrs F and B’s father sent several emails raising a complaint with the Council. This complaint covered the initial delay in securing B’s placement at School 1, and a consequent inability by the school to put in place the support set out in B’s EHC plan, which they considered to be the reason for B’s behaviour and exclusion. They also complained the Council had failed to put in place suitable alternative provision for B while he was out of school, saying the PRU was not appropriate for him, and that the Council’s handling of the review of the permanent exclusion had been inadequate.
22. The Council responded to the complaints in February and March. In summary, it said:

• it had been unable to consult with School 1 until it received formal notification of the transfer from the previous authority on 4 August. It then had 15 days to consult with the school, which did not start until the beginning of the new school year;
• it had been proactive in speaking to the school as soon as it re-opened though and was therefore able to ensure B had a place at the beginning of the year;
• this process was not discriminatory as it was designed to ensure children with an EHC plan are in a place that can meet their needs;
• School 1 had responded positively to the consultation and so the Council expected it could quickly put into the place the provision B needed;
• the Council had offered B a place at the PRU as soon as he was excluded from School 1; and
• the PRU had attempted to organise some work to help B transition to a placement there, and the Council encouraged Mrs F to engage with this to allow him to access education in the interim.

23. At a professionals meeting in February, it was noted B had not been attending the PRU and was awaiting a change of placement. The PRU had suggested a range of different options to encourage B to attend and had now suggested alternative provision. One school had offered B a place but Mrs F had declined this, and School 2, which Mrs F did want, did not currently have any available space for B.
24. In April the Council arranged for B to begin attending an alternative provision placement on one day per week.
25. In June, another school, to which I will refer as School 3, offered B a placement. The Council agreed to this and wrote to Mrs F to inform her.

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Legislative background

EHC plans

26. 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 which include:

• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

27. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
28. There is a right of appeal to the SEND Tribunal against a decision not to assess, issue or amend an EHC plan or about the content of the final EHC plan. Parents must consider mediation before deciding to appeal. An appeal right is only engaged once a decision not to assess, issue or amend a plan has been made and sent to the parent or a final EHC plan has been issued.

Alternative provision

29. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

School exclusions

30. 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.
31. 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.
32. Where parents dispute the decision of a governing board not to reinstate a permanently excluded pupil, they can ask the local authority to review this decision with an independent review panel.
33. Panels cannot substitute their decision for that of the governors, and they cannot reinstate a pupil. The panel can uphold the decision to exclude, recommend the governing body reconsiders their decision, or quash the governing body's decision and direct reconsideration.

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Analysis

34. Mrs F’s complaint includes three broad points:

• that the Council delayed arranging a placement for B at School 1 when it should, with the consequent impact on the support the school could offer him;
• that the Council’s has not arranged for B to receive adequate alternative provision since his permanent exclusion from School 1;
• that the independent review panel (IRP) did not properly consider their appeal against B’s exclusion.

35. I will consider each point separately and in turn.

Delay in arranging a placement for B at School 1

36. Mrs F says she contacted the Council in May 2022 to inform it the family would be moving to the area and needed school placements for the three children. She says School 1 had arranged placements for the two younger children by the end of the school year, but B’s placement there was not confirmed until the last working day before the new year. She says, as a consequence, the school was unable to put in place the 1:1 teaching assistant support B needed, which then triggered the deterioration in his behaviour leading to his exclusion.
37. Mrs F alleges the delay in arranging B’s placement to be disability discrimination, because the other two children’s placement were confirmed sooner. Discrimination is a matter of law and so not a finding we can make anyway; but, even putting this to one side, I have no reason to believe the Council did not follow the statutory process in arranging B’s placement. As it says, it could not formally begin this until it had received the transfer notification from the previous authority, which did not come until 4 August.
38. Unfortunately this was in the summer holiday, and so it could not consult with School 1 until it re-opened for the new year; although it succeeded in arranging his placement in time for the start of the year anyway, albeit at the last minute.
39. It is true there is a different process for arranging a school placement for children with an EHC plan than for those without. The purpose of this process is to ensure a child with special educational needs is at a school which can meet and manage their needs. I acknowledge, in B’s case, this meant there was a period of some months where his placement at School 1 was unconfirmed, and I appreciate why this caused Mrs F some considerable stress, but this appears to be the result of the particular circumstances in this case, rather than due to any fault by the Council.
40. Either way, even if Mrs F considers the EHC plan process is flawed in this respect, this is not a complaint which the Council can address. The process is set out in law and statutory guidance issued by the Government, not the Council, and if Mrs F wishes to pursue this matter then she will need to approach her MP in the first instance.
41. B’s EHC plan says:

“[B] will be provided with full time one-to-one support; or learning in a nurturing, small group situation with a favourable staff: pupil ratio, throughout the school day, in order to manage his challenging behaviours, to keep him safe, and to support him in making academic progress.”

42. The issue of whether the school provided B with adequate support to manage his behaviour was subject to very lengthy debate during the IRP meeting. As part of this discussion, the school complained it had itself not received adequate support from the Council, including questions about whether it was due more funding. It also commented, at one point, that it had had to advertise for additional staff to cater for B, and it would have helped to have been able to start this process sooner than July 2022.
43. However, as I have noted, I do not consider the Council is at fault for the delay in confirming B’s placement at School 1, and so it follows that I cannot hold it responsible for the fact it could not advertise for new staff earlier than it did. The school also made the point that, even though it was seeking more funding from the Council, this did not prevent it from putting provision in place in the meantime.
44. Ultimately I do not consider I am able to resolve this point. I cannot see that the school failed to adhere to B’s EHC plan, which I note, in particular, does not make it an absolute requirement that B should have full time 1:1 support. It is not for me to make a qualitative judgement on the adequacy of the provision, and I consider it would be highly speculative to say the incident which led to B’s exclusion, or the general deterioration in his behaviour, could have been avoided by better engagement by the Council.
45. I should stress none of this is to minimise or dismiss Mrs F’s distress about these events, or the serious impact they have had on B and his family. However, I am not satisfied there is any evidence of fault by the Council here, and without this, I cannot uphold her complaint.
46. I find no fault in this element of Mrs F’s complaint.

Lack of suitable alternative provision

47. Mrs F complains the PRU was not a suitable form of alternative provision for B, and that he has received only minimal other education since his exclusion from School 1.
48. I will first note Mrs F says the PRU told her, immediately after B’s referral there, it was unable to meet his needs. However, the Council says the PRU did not inform it of this. I also note the emergency review paperwork shows the PRU encouraged Mrs F to visit, in an effort to encourage her to send B there.
49. In either event, however, upon review I am satisfied this matter falls outside our jurisdiction. This is because the Council formally named the PRU as B’s educational establishment on his EHC plan, when it reissued it in mid-December after the emergency review.
50. Various aspects of an EHC plan carry a right of appeal to the SEND Tribunal, and one of these is the establishment named in the plan. The right of appeal is triggered as soon as the plan is formally issued. The law says we should generally not investigate complaints where the substantive matter carries a right of appeal such as this, and so on that basis we cannot consider whether the PRU is an appropriate placement for B.
51. Further to this, the law also says we should not investigate any matter which is inextricably linked to an appeal right. In this case, if B were attending the PRU there would be no question of other alternative provision; and as I am unable to consider the appropriateness of the PRU (which would be the starting point for any investigation of other alternative provision), I am also unable to investigate this point.
52. For this reason I cannot consider this element of Mrs F’s complaint any further.
53. I have discontinued my investigation of this element of Mrs F’s complaint.

Conduct of the independent review panel

54. I should first note that an IRP is independent of both the relevant school and local authority, and so the local authority is not directly responsible for, and has no influence over, an IRP’s decision. However, for maintained schools, such as School 1, an IRP is appointed by the local authority to carry out a statutory duty on its behalf. For this reason, the conduct of an IRP falls within our jurisdiction.
55. This element of Mrs F’s complaint includes three points:

• the Council delayed arranging the IRP;
• the SEN expert appointed by the IRP had never met B; and
• she did not attend the review meeting.

56. The Government has issued statutory guidance on the school exclusion process, including the IRP stage. At paragraph 153, it says a review “must begin within 15 school days of the day on which the parent’s application for a review was made”, while noting the IRP can make an adjournment where appropriate.
57. Mrs F applied for a review on 22 January 2023. This was a Sunday, and so, by my calculation, the Council had until 10 February to begin the review process.
58. I have no information about what happened next until 9 February, when the Council forwarded a letter from the IRP to the school, requesting certain documents it needed for the review. The school responded to say there was no indication when the review was due to take place, to which the Council explained it had only just ‘picked up’ the request due to staff shortages.
59. On 8 March, the Council emailed the school to say the review would take place on 21 March. However, on 20 March, the chair of the school governing body complained to the Council the necessary preparations, including a promised briefing from the Council’s legal team, had not materialised. The chair therefore requested an adjournment, which the Council granted, and rearranged the review meeting for 28 March. This is when it eventually took place, and the IRP then notified Mrs F and other parties of its decision the following day.
60. I am conscious the statutory guidance says only that the review must “begin” within 15 days of the request. It does not elaborate on what it means by this, and nor does it give a deadline for when the review must be finished. But, with the Council giving ‘staff shortages’ as a reason for this delay, and then having to postpone the meeting because it had not provided information to the school, taking all these points together I am satisfied there was fault here.
61. However, there is no reason to believe a few weeks’ delay made any difference to the substantive outcome of the review. I accept this caused Mrs F some frustration, which represents an injustice to her, but I consider a formal apology by the Council is an adequate remedy for this.
62. At paragraph 194, the statutory guidance says:

“Whilst individuals are not automatically taken to be partial simply because they are an employee of, or contracted by, a local authority or academy trust, they should not have had any previous involvement in the assessment or support of SEN for the permanently excluded pupil, or siblings of the permanently excluded pupil. The local authority/academy trust should request that prospective SEN experts declare any conflict of interest at the earliest opportunity.”

63. The SEN expert appointed by the IRP is a SEN co-ordinator (‘SENCo’) working for the Council, which means this provision applies here. Therefore, not only is it not fault the SEN expert had never met B, it would in fact be fault if she had met him before. So I can find no fault on this point.
64. However, at paragraph 218, the statutory guidance also says:

“Where a SEN expert has been requested but is not present, the panel should make parents aware of their right to request that the review is adjourned until a SEN expert can attend.”

65. Having reviewed the meeting minutes, I cannot see Mrs F was made aware of this right. Rather, the IRP simply noted and apologised for the SEN expert’s absence, relying instead on her written submission to inform the proceedings. This is a clear fault.
66. I have carefully considered the implications of this fault. The SEN expert highlighted several learning points for the school in how it managed B’s behaviour, but did not criticise the decision to exclude him and agreed it had dealt with the matter in a reasonable way. I understand Mrs F does not agree with this, and so by rights she should have had the opportunity to question the SEN expert during the review meeting.
67. A failure like this could be seen to bring into doubt the outcome of a review; and under such circumstances, we might recommend the review be repeated, to remedy the consequences of the fault.
68. But I am conscious that, despite also making some criticisms of the school’s handling of the matter, the IRP found overwhelmingly in its favour. It unanimously upheld the exclusion and found no grounds to recommend the governors review their decision, much less to quash the decision. In doing so, it did not rely solely on the SEN expert’s contribution, but took into account all the evidence available.
69. This being so, I am not persuaded, on the balance of probabilities, that the IRP would have come to a different conclusion, even if Mrs F had been able to question the SEN expert. She had the opportunity to air her views in detail during the meeting, and the IRP gave these due consideration in making its decision. There is no reason to believe an opportunity to question the SEN expert as well would have made a significant difference here.
70. Consequently I do not consider it appropriate to recommend the review be repeated.
71. I still regard this as an injustice to Mrs F, but again, I am satisfied that this injustice can be addressed by a formal apology from the Council. I also consider the Council should circulate guidance to its pool of IRP clerks, to ensure they are aware of this element of the statutory guidance. I make recommendations to this effect.
72. I find fault causing injustice in this element of Mrs F’s complaint.

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Agreed action

73. Within one month of the date of my final decision, the Council has agreed to:

• write a formal letter of apology to Mrs F, acknowledging its delay in arranging the independent review of B’s exclusion, and the IRP’s failure to advise her of right to request an adjournment because of the SEN expert’s absence from the meeting;
• circulate guidance to its panel of IRP clerks, to ensure they are aware the statutory guidance says that, where they have requested the attendance of a SEN expert at a review meeting, but the expert is not present, parents may ask for the meeting to be adjourned until the expert is available; and that the IRP must explain this right to parents.

74. The Council should provide us with evidence it has complied with the above actions.

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Final decision

75. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman