Summary: Mrs X complained the Council failed to provide suitable education to her daughter and did not check on her wellbeing after she was permanently excluded from school. Mrs X says the Council’s actions caused avoidable distress to her daughter and the family, and meant her daughter missed out on education. We found fault by the Council. The Council has agreed to provide an apology and a financial remedy and make service improvements.

The complaint

1. Mrs X complained the Council failed to provide suitable education to her daughter and did not check on her wellbeing after she was permanently excluded from school.
2. Mrs X also complained the school did not consider the impact of the exclusion on her family.
3. Mrs X says this caused avoidable distress to her daughter and the family, and meant her daughter missed out on education. She would like the Council to review its processes, so the same thing does not happen again.

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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 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)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. 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)
8. 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

9. I have investigated the complaint referred to in paragraph one for the period October 2023, (when the school permanently excluded Mrs X’s daughter), to mid-April 2024, (when Mrs X brought her complaint to the Ombudsman following the Council’s final complaint response).
10. I have not investigated the period after mid-April 2024 because this period is after the Council’s final complaint response and is therefore not part of the Council’s complaint investigation.
11. I have not investigated the complaint referred to in paragraph two. This is because we cannot investigate what happened in the school as part of its decision to exclude Mrs X’s daughter.

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How I considered this complaint

12. I discussed the complaint with Mrs X and considered the information she provided.
13. I made enquiries to the Council and considered the information it provided.
14. Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

School exclusions

15. 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.
16. 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.
17. Where parents dispute the decision of a governing board not to reinstate a permanently excluded pupil, they can ask for this decision to be reviewed by an independent review panel (IRP).

Alternative education provision

18. 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. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
19. Statutory guidance says the duty to provide a suitable education applies “to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school, and whatever type of school they attend”. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
20. In cases where a child is permanently excluded from a school, provision must be arranged for the child from the sixth day after the exclusion. This is set out in The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870) and accompanying statutory guidance.

The Council’s Local Offer

21. The Council’s Local Offer regarding its services and support for children and young people with disabilities or special educational needs says when a learner has been permanently excluded, it is the responsibility of the local authority to arrange alternative provision. It says when alternative provision is arranged for any reason besides permanent exclusion, the learner must remain on the school roll and the school maintains a duty of care. 

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Mrs X’s daughter, Child Y, attended a primary school, School A. Whilst attending School A, Child Y had a special educational needs plan setting out the support she required.
24. In early October 2023, School A’s head teacher made a decision to permanently exclude Child Y from the school. School A notified the Council of its decision.
25. Mrs X appealed School A’s decision to permanently exclude Child Y. Around this time, Mrs X also asked the Council to carry out an Education, Health and Care (EHC) needs assessment.
26. In late October 2023, Child Y started a temporary placement at another School, School B. School B is an alternative provision school that provides assessments of childrens’ needs prior to their transition back into a substantive mainstream placement or specialist provision.
27. At about the same time, School A’s governing board held a meeting regarding Child Y’s permanent exclusion. It decided to uphold the head teacher’s decision. Mrs X requested a review of the decision by an IRP.
28. The Council says School A removed Child Y from its school roll in late November 2023.
29. Shortly after, the IRP decided to quash School A’s decision to permanently exclude Child Y.
30. In early December 2023, School A’s governing board told Mrs X it had declined to reinstate Child Y’s placement, despite the findings of the IRP.
31. In late December 2023, the Council told Mrs X it had declined her request to carry out an EHC needs assessment. At about the same time, Child Y’s temporary placement at School B ended.
32. In early January 2024, Mrs X told the Council she had applied to two alternative schools. The Council says, in mid-January 2024, Mrs X told it that Child Y would be attending one of these schools, School C.

Mrs X’s complaint

33. On 8 February 2024, Mrs X complained to the Council that the exclusion from School A meant Child Y was unable to attend school with her siblings. She said the school had not considered the impact on her family. Mrs X also complained Child Y had struggled with her placement at School B, and that this placement had ended in late December 2023. Mrs X said Child Y had missed a large part of her education. Mrs X said the Council had not carried out any welfare checks regarding Child Y and had not arranged any alternative educational provision for the period when Child Y was waiting to start a new school. Mrs X also stated she was engaging in mediation regarding the Council’s decision to decline her request for an EHC needs assessment.
34. The Council replied on 7 March 2024. It said because School A’s governing board had maintained its original course of action, despite the IRP’s decision to quash the exclusion decision, Mrs X should apply to another mainstream school. The Council acknowledged School C had offered Child Y a place, although it acknowledged it had not provided a start date.
35. The Council offered Mrs X a further period of assessment at School B; it said this was to understand Child Y’s needs and find the most appropriate future support. The Council said it needed to secure a mainstream on-roll placement to do this; it said it had therefore agreed to plan a professionals meeting with School C to discuss next steps.
36. On 20 March 2024, Mrs X escalated her complaint to stage two of the Council’s complaints process. She said the Council had not acknowledged the negative effects of the exclusion on Child Y. Mrs X maintained Child Y had received no education since before Christmas.
37. The Council provided its final complaint response on 2 April 2024. It acknowledged Mrs X said she felt let down by the Council because Child Y had been without education. The Council said it had arranged a professionals’ meeting with School C to see if it was in a position to offer an on-roll placement; the Council said without this, it was unable to legally offer alternative provision.
38. The Council said it recognised the impact of any gap in education and said School B would offer a full assessment placement to ensure the Council had a greater understanding of Child Y’s needs. It apologised that the offer of education was delayed; it said this was due to ensuring all professionals could meet and agree an appropriate way forward. The Council said it needed to ensure it had an agreed on-roll placement in order to make provision.
39. Mrs X remained dissatisfied with the Council’s final response and brought her complaint to the Ombudsman.

What happened next

40. School C placed Child Y on its school roll in mid-April 2024.
41. Child Y attended a temporary placement at School B from early May 2024 until the end of June 2024. At about the same time, the Council agreed to provide an EHC needs assessment for Child Y.
42. Child Y’s placement at School C was agreed to start in early September 2024.

Analysis

43. Mrs X complained the Council failed to provide suitable education to her daughter after she was permanently excluded from school. The Council says it offered Child Y two placement periods at School B. It says School B is commissioned by the Council to discharge its statutory duty for day six provision. The Council says School B offers overview and assessment placements with a bespoke package of support, which includes behaviour specialism and therapeutic support. The Council says the sixth day provision for Child Y was delayed due to transport issues and the school’s half term.
44. Statutory guidance says where a child is permanently excluded from a school, provision must be arranged for the child from the sixth day after the exclusion. The evidence shows a slight delay in making provision to Child Y following the sixth day of exclusion; the Council has acknowledged this as part of its response to our enquiries.
45. I acknowledge the Council’s comments regarding the reason for the delay; however, the statutory guidance is clear about the timescales for making provision. As a result, the delay incurred is fault.

The Council’s complaint response

46. The Council’s complaint response acknowledged Mrs X’s comments that she felt let down as a result of Child Y being without an offer of education. The Council told Mrs X it had made its best efforts to resolve the issue, but said without an on-roll placement, it was unable to legally offer alternative provision.
47. In its response to our enquiries, the Council said it offered Child Y a further placement at School B; it said this was to support School C in taking Child Y onto its school roll. The Council said once a pupil comes off a school roll, it cannot place them in unregistered alternative provision.
48. The information provided to Mrs X as part of the Council’s complaint response is not in line with statutory guidance or the Council’s Local Offer.
49. Statutory guidance says the duty to provide a suitable education applies to all children of compulsory school age resident in the council area, whether or not they are on the roll of a school. In addition, the Council’s Local Offer says when a learner has been permanently excluded, it is the responsibility of the local authority to arrange alternative provision; it says when alternative provision is arranged for any reason other than permanent exclusion, the learner must remain on the school roll. This means that where a child is permanently excluded, they do not need to be on the school roll for alternative provision to be made.
50. As a result, the Council’s response to Mrs X contained incorrect information and I have found this to be fault.
51. The evidence shows a period from early January 2024 to early May 2024 where Child Y received no education. The Council’s final complaint response advised Mrs X that it could not provide alternative provision during this period because Child Y was not on a school roll. As previously stated, I have found this explanation to be flawed. The Council is at fault for not providing alternative educational provision to Child Y from January 2024 until mid-April 2024; I acknowledge the period without education ended in early May 2024 when Child Y re-attended School B, but the period of my investigation ends in mid-April 2024.
52. Mrs X says the Council did not check on Child Y’s wellbeing after she was permanently excluded from school. Having reviewed the information provided by Mrs X and the Council, the Council is not at fault regarding this aspect of the complaint. This is because I have seen no evidence of any safeguarding concerns and no evidence of involvement by the Council’s social workers. In addition, the evidence indicates ongoing contact between Mrs X and the Council regarding a school placement, the EHC needs assessment, and the two periods of alternative provision at School B.
53. Having identified fault, I must consider if this caused an injustice to Mrs X and/or Child Y. Mrs X says the Council’s actions caused avoidable distress to herself, Child Y, and the family. I acknowledge Mrs X’s comments; the period of missed education caused an injustice to both Mrs X and Child Y. Mrs X says she also incurred costs as a result of buying educational materials for the benefit of Child Y while she was unable to attend school.

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Agreed action

54. To address the fault identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mrs X and Child Y for the fault identified. 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;
2. Make a symbolic payment of £1,200 to Mrs X in recognition of the distress caused, the missed educational provision to Child Y and the cost incurred in purchasing educational materials;
3. Remind staff of the Council’s duty to secure alternative provision for children/young people from the sixth day of exclusion, in line with statutory guidance, and
4. Remind staff of the Council’s duty to arrange suitable education for permanently excluded children/young people in line with statutory guidance and the Council’s Local Offer.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman