Summary: There was no fault in the way the Council discharged its duty to secure educational provision for a child who had been excluded from school. The Council was at fault for a delay in issuing an amended education, health and care plan for him, but this did not cause any injustice beyond some frustration for the complainant, for which the Council has already apologised. The Council was also at fault because it failed to recognise it had issued an earlier version of the education, health and care plan, but we cannot investigate the consequences of this because it is outside our jurisdiction. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Miss B.
2. Miss B complains the Council maintained its decision that her son, D, should attend a pupil referral unit, after being permanently excluded from school, despite evidence she believed showed it was not suitable for him. She says that, by extension, this meant D was denied education because he did not attend the PRU. Miss B also complains the Council did not initially name a mainstream school on D’s EHC plan, despite having the power to do so. She says that, as a consequence of this, D missed a significant period of education at a critical time.

Back to top

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. 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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
6. 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.

Back to top

How I considered this complaint

7. I reviewed Miss B’s correspondence with the Council, D’s EHC plan and review documents, and sought further information from the Council on certain points.

Back to top

What I found

8. The following chronology will summarise the key events relevant to this complaint. It is not intended to cover everything that happened.
9. D has been diagnosed with learning and development disorders and is subject to an education, health and care (EHC) plan. He was attending a mainstream secondary school, but was permanently excluded on 28 April 2023.
10. On 3 May the Council arranged a place for D at a pupil referral unit (PRU). The PRU was to provide interim ‘day 6’ provision for D, consisting of one hour of tuition per day for up to four weeks, to identify his learning attainment levels; and then to decide whether to provide a full-time placement for him.
11. The PRU inducted D on 15 May, but Miss B then told it D would not attend a full-time placement there.
12. On 8 June an annual review of D’s EHC plan was held, and it was agreed the plan needed to be amended. As part of this, the Council agreed to consult with other schools to find a new placement for D, and it sent consultations to three schools on 25 July, including the school Miss B had stated was her preference (which I will refer to as School 1).
13. On 29 August Miss B submitted a stage 1 complaint to the Council, in which she alleged the Council had failed to discharge its duty, under section 19 of the Education Act, to provide alternative education to D after his exclusion.
14. The Council responded on 12 September, to say it was satisfied the PRU was an appropriate placement for D, and it therefore considered it had discharged this duty. The Council acknowledged, however, there had been a delay in issuing his amended EHC plan. It said it was currently waiting for responses to its consultations, with the aim of naming a new school on the plan.
15. In September, each of three schools, including School 1, the Council had consulted responded to say it could not meet D’s needs.
16. On 25 September, the Council issued D’s amended EHC plan. It named the PRU as his educational placement.
17. On 28 September, Miss B submitted a pre-action protocol letter to the Council through her solicitor. She reiterated her allegation the Council had failed to provide a suitable education for D, providing evidence she considered showed the PRU was not an appropriate placement for him. She also claimed the Council had failed to secure the provision set out in D’s EHC plan. Miss B said she would initiate a judicial review if the Council did not address these matters and issue D’s amended EHC plan.
18. The Council responded on 12 October. It said it remained of the view the PRU was an appropriate placement for D, and therefore rejected Miss B’s claims it had not arranged suitable education or secured his EHC plan provision. The Council said apologised it had not yet issued D’s amended plan, which it said was because of the difficulty in finding a school willing to take him. However, it said it intended to name School 1 on the plan anyway, and asked her to confirm this was still her preference.
19. On 31 October Miss B told the Council School 1 was no longer her preference.
20. On 9 November the Council sent a consultation to another school, which I will refer to as School 2.
21. On 13 November Miss B referred her complaint to the Ombudsman. We decided it was premature for investigation because she had not yet completed the Council’s complaint process, and so referred it back to the Council.
22. On 17 November School 2 responded negatively to the Council’s consultation. Despite this, on 21 November the Council issued an amended EHC plan for D naming School 2 as his educational placement.
23. On 21 December the Council responded to Miss B’s stage 2 complaint. It noted Miss B complained the Council had named the PRU on D’s EHC plan, but said it had not done this at any stage; rather, the Council said it had inadvertently sent a letter to Miss B on 28 September saying it intended to name the PRU, for which it apologised.
24. However, the Council again rejected Miss B’s complaint it had not provided D with a suitable education, and that it had not secured his EHC plan provision, because it had arranged a placement at the PRU. It also did not accept, as Miss B alleged, it had failed to seek a mainstream school placement for D.
25. The Council again acknowledged it had not issued D’s EHC plan on time, but said this was because it had been waiting for information from several parties, including Miss B’s own feedback.
26. Miss B referred her complaint back to the Ombudsman on 10 January.

Back to top

Legislative background

27. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or council can do this.
28. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
29. Within four weeks of a review meeting, the 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) 
30. There is a right of appeal to the Tribunal against:

• a decision not to carry out an EHC needs assessment or reassessment;
• a decision that it is not necessary to issue a EHC Plan following an assessment;
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment; and
• a decision to cease to maintain an EHC Plan.

31. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
32. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
33. The period we cannot investigate starts from the date the appealable decision is made and given to the parents or young person. If the parent or young person goes on to appeal then the period that we cannot investigate ends when the tribunal comes to its decision, or if the appeal is withdrawn or conceded.

Section 19 duty

34. 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.
35. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Back to top

Analysis

36. The Ombudsman’s role is to review how a council has made its decision. We may criticise it if, for example, it has not followed an appropriate procedure, not considered relevant information, or failed to properly explain the reason it has made a decision. We call this ‘fault’ and, where we find it, we can consider the consequences of the fault and ask the council to address these.
37. However, we do not provide a right of appeal against council decisions, and we do not make operational or policy decisions on a council’s behalf. Where a council has made its decision without fault, then we cannot criticise it, no matter how strongly a complainant thinks it is wrong. We do not uphold complaints simply because someone believes the council should have made a different decision.
38. Miss B complains the Council did not provide suitable education for D after his exclusion and until he started at School 2 in January. This is because she does not consider the PRU was an appropriate placement for him, because of the negative influence she believed other pupils would have on D. Miss B provided the Council with evidence from D’s psychiatrist and a social worker, which she says proved the PRU was not suitable for D.
39. Miss B is entitled to her opinion on the suitability of the PRU, and I do not seek to dismiss her concerns. However, this does not mean the Council was obliged to accept her view. In its response to Miss B’s stage 1 complaint, the Council said:

“I cannot agree that [the PRU] is not an appropriate provision following exclusion for [D]. [The PRU] is a good specialist school supporting many vulnerable children, many of which have similar needs to [D]. I have asked officers and they are clear [the PRU] are not stating they cannot meet [D’s] needs and have offered a placement. In terms of the needs you have outlined in your letter, I am clear that these can be put in place at [the PRU] provision. I have asked officers in relation to concerns being raised by the allocated social worker, and can confirm there are no concerns on the system. I have also checked in relation to the feedback from [the psychiatrist] and cannot find anything in which he states [the PRU] is inappropriate.”

40. I am satisfied the Council has properly explained why it maintained its view the PRU was suitable. While I understand Miss B will continue to disagree, there is no evidence of fault here on which I could uphold her complaint. The Council was entitled to make this decision and it is not for the Ombudsman to decide otherwise.
41. This being so, it follows I cannot find the Council failed to discharge its duty to arrange alternative provision for D after his exclusion. The Council made arrangements for a full-time placement at the PRU, which was open to D to attend throughout the period between his exclusion and his enrolment at School 2.
42. By extension, I also cannot say the Council failed to secure the provision required by D’s EHC plan during his period out of education. The Council’s expectation was that the PRU would make this provision. Therefore, the reason D did not receive the provision was because he did not attend the placement the Council had arranged for him, not because it had failed to secure the provision.
43. Miss B also complains the Council failed to name a mainstream school for D to attend after his exclusion, despite having the power to do this.
44. This is something of a misconception. It is true the Council has the power to name a school on an EHC plan, even if the school declines to take a pupil in response to a consultation. However, the Council must first go through the EHC plan review process, and consult with the school in question as part of that process; it cannot simply tell a school it must accept a new pupil, without any prior process or discussion, which is what Miss B is effectively complaining it did not do here.
45. I am conscious the Council missed the deadline to issue D’s amended EHC plan, which was 31 August (12 weeks from the date of the review on 8 June). The Council has explained this delay arose because it was still waiting for some information, including the responses to its consultations.
46. On this point, I asked the Council why it took approximately six weeks from the date of the review before it sent out the consultations on 25 July – which, being right at the start of the school summer holiday, means it appears inevitable the responses would be delayed. The Council responded:
47. “The reasons for the delay were that the EHCP was being updated by the EHCP Co-ordinator in the 6 weeks following the annual review. A draft EHCP was issued to parent on 25 July 2023. Parent had requested time to amend Section A of [D’s] EHCP and had provided the LA with the amendments they requested. The LA was also waiting for updated social care advice to update the relevant sections of [D’s] EHCP. It was vital that the EHCP therefore accurately reflected [D’s] needs, his and his family’s view and any updated advice.”
48. I consider this is a reasonable explanation for the delay in issuing the consultations. The fact remains the Council did not issue D’s amended EHC plan by 31 August, and as this is an absolute deadline I must find fault for this reason.
49. This brings me onto another point. On 25 September, the Council issued an amended final EHC plan for D, naming the PRU as his educational placement. Miss D has confirmed she lodged an appeal with the SEND Tribunal about this, although she then withdrew her appeal before it was heard.
50. However, in its stage 2 response, the Council denied issuing an EHC plan naming the PRU, either in draft or final form. The Council did accept it had sent Miss B a letter on 28 September, which indicated it intended to name the PRU on D’s plan, but said this had been done in error.
51. We have a copy of the September EHC plan – and in fact it was the Council itself which provided us with this – and I can confirm it names the PRU as D’s placement in Section I. The Council’s statement in response to Miss B’s complaint is therefore definitely inaccurate.
52. I asked the Council to comment on this. It replied:

“We are aware that a mistake was made in the covering letter of 28 September 23 when we referred to [the PRU]. We believed we have named mainstream as the type in the EHCP dated 25 September 2023.”

53. Unfortunately this response simply creates more questions. Apart from the fact it is difficult to understand how the Council could issue an EHC plan without knowing what it contained, the Council’s response to Miss B’s pre-action protocol letter made no reference to the plan, implying instead that an amended plan was yet to be issued (and apologising for the delay). This was despite it being approximately three weeks after the Council had issued the plan naming the PRU. There is also no explanation why the Council denied issuing the plan after Miss B challenged it in her stage 2 complaint, when it clearly formed part of the Council’s records.
54. I have no answer to any of this.
55. In the narrow sense, I cannot criticise the Council for naming the PRU on D’s EHC plan. Quite apart from the fact the Council was entitled to decide this was a suitable placement for him, we have no jurisdiction to investigate this point anyway, because Miss B lodged an appeal with the SEND Tribunal about it (this restriction remains even though she then withdrew the appeal).
56. So what remains is simply the Council’s failure to recognise it issued the plan when it responded to Miss B’s complaint. This, inevitably, is also fault, but without being able to make findings on the wider context, I am unable to find this caused Miss B any significant injustice.
57. This does, however, have implications for another element of Miss B’s complaint, that of the delay in issuing the EHC plan.
58. The Council issued the first amended plan – that naming the PRU – on 25 September, which was approximately three weeks after the deadline of 31 August. This was late, but not by a significant margin. The Council then issued the second plan on 21 November, which, at nearly 12 weeks after the 31 August deadline, was a more significant delay.
59. Given the Council’s comments about the first plan, I consider it appropriate to put this to one side, for the purposes of considering the Council’s adherence to the deadline. I will therefore work on the basis the delay in issuing D’s amended EHC plan was approximately 12 weeks.
60. This was also fault, but again it is difficult to see what material difference this made. I am particularly conscious the Council had not consulted with School 2, let alone received a response, by the 31 August deadline; and so D would not have started there any sooner had the Council met the deadline.
61. It is arguable the Council could have named one of the schools from the first round of consultation, but even then it would still inevitably have missed the deadline, given these responses did not come until September. In any case, deciding to name a school against its wishes is not an easy choice for the Council, as it must carefully weigh up the school’s reasons for rejecting an approach. I cannot say the Council was wrong for not doing this earlier.
62. This all being so, for the Council to have met the deadline, it appears most likely it would have had to issue D’s EHC plan without naming a specific school at all. It is lawful for the Council to do this, but it clearly would not have changed D’s situation – the Council would then still have had to find him a school, and, in the meantime, he would still not have been attending the PRU.
63. I do accept the delay caused Miss B some frustration. However, I note the Council has already apologised for this, and I consider this represents an adequate remedy. Beyond this, I do not consider the delay in issuing D’s EHC plan caused any significant injustice.

Conclusions

64. The Council was not at fault in the way it discharged its section 19 duty. It was entitled to decide the PRU was a suitable placement for D, and while I understand Miss B’s reasons for disagreeing, this does not give me grounds to uphold her complaint. By extension, there was also no fault by the Council in securing the provision in D’s EHC plan, because it expected him to attend the PRU for this reason also.
65. The Council was at fault because of the delay in issuing D’s EHC plan. However, beyond some frustration for Miss B, I do not consider this caused any injustice, because it is clear it did not make any substantive difference to D’s situation.
66. The Council was also at fault because it wrongly insisted it had not issued an EHC plan naming the PRU as D’s placement. However, I cannot consider any wider consequences of this point, because Miss B’s use of her appeal right places it outside our jurisdiction.

Back to top

Final decision

67. I have completed my investigation with a finding of fault causing injustice, but which the Council has already remedied.

Back to top

Investigator's decision on behalf of the Ombudsman