Summary: Mrs Y complains the alternative provision offered by the Council was not suitable for her son, D, after he was permanently excluded from primary school. She also complains about delays in reviewing D’s Education Health and Care Plan. We find no fault in the alternative provision initially offered by the Council. However, there was delay in reviewing D’s plan which meant the type of interim provision was not changed as quickly as it should have been. The Council will apologise and pay £200 to Mrs Y in recognition of her delayed appeal rights and £1500 to D for his educational benefit.

The complaint

1. Mrs Y says her son, who I will call D, has been out of school and without suitable education since October 2023. She complains the alternative provision offered by the Council was not suitable for D as it was too far away from home and did not meet his special educational needs as outlined in the Education Health and Care (EHC) plan.
2. Mrs Y also complains about delay in issuing D’s amended final EHC plan which has frustrated her right of appeal.
3. Mrs Y would like the Council to apologise, make suitable provision and therapies available for D and ensure the family are not financially disadvantaged because of Council fault.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. 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)
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)

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What I have and have not investigated

8. I have investigated events which took place between October 2023 when D received a permanent exclusion from primary school and September 2024 when Mrs Y approached the Ombudsman.
9. I have not exercised discretion to investigate alleged failures around the April 2023 Annual Review because Mrs Y did not make a complaint to the Ombudsman within a year of the review meeting. I have considered Mrs Y’s reasons for this, including not knowing about the complaints process and the relevant time limits, however I am not persuaded there is good reason to exercise the Ombudsman’s discretion.
10. My investigation has not considered matters which happened after September 2024 such as recent refusals by the Council to increase D’s interim provision. This is because those matters post-date our involvement and would need to be raised as a new, separate complaint.

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How I considered this complaint

11. During my investigation I considered the information provided by Mrs Y and attempted to discuss the complaint with her by telephone before writing a draft decision. After Mrs Y received my draft decision, I spoke with her about the complaint and her comments.
12. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement.
13. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
14. 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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What I found

Education Health and Care Plans

15. A child or young person with special educational needs may have an 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 the council can do this. 
16. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014.
17. Amongst other points, there is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, and the school or placement named in Section I.
18. The Ombudsman can investigate complaints about matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 
• delays in the process before an appeal right started;
• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal. 

Permanent exclusions from school

19. 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 the school would seriously harm the education or welfare of other pupils.
20. Councils have a statutory duty to arrange suitable full-time education for the pupil to begin from the sixth school day after the first day the permanent exclusion took place. The education arranged must be full-time or as close to full-time in accordance with the child’s best interests or because of their health needs. (Statutory guidance ‘Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England, including pupil movement’).

Home to school transport

21. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge.
22. Government guidance notes as a general guide, the maximum journey time for a child of primary school age should be 45 minutes each way, and 75 minutes each way for a child of secondary school age. This includes any time taken to walk to a pickup point. It is noted there will be circumstances in which this is not possible, for example for children who live in remote locations. Wherever possible, a child should not be expected to make several changes on public transport

Summary of key events relevant to this complaint

23. Since June 2022 D has received the educational provision outlined in his EHC plan. The EHC plan noted D’s primary need as social, emotional and mental health (SEMH).
24. D attended a mainstream primary school until July 2022 when Mrs Y decided to move him to a different mainstream primary school which I will refer to as ‘the school’. D started at the school in September 2022.
25. Records provided by Mrs Y show that D received a diagnosis of Autism with ‘Pathological Demand Avoidance’ profile (PDA) in March 2023. D also experiences behavioural challenges, emotional dysregulation, ADHD and Anxiety.
26. Following concerns about D’s behaviour and his ability to regulate his emotions in school, the school arranged an emergency annual review. The meeting went ahead on 19 April 2023. The Council did not attend the review meeting.
27. Records provided by the Council show a discussion about D’s case on 5 October 2023. This noted Mrs Y’s request for D to receive education other than at school (EOTAS). Mrs Y felt EOTAS was necessary because D had experienced a significant decline in his confidence and self-esteem which in turn contributed to D displaying self-harming behaviour at school.
28. Mrs Y expressed her view that D cannot regulate his emotions at school and cannot stay safe. She said the school had implemented a reduced timetable and that staff were supportive. Despite this, D was working several school years below age related expectations.
29. On 13 October 2023 the school permanently excluded D following incidents of violent behaviour towards staff and pupils. The school said it had tried all possible strategies to prevent exclusion, but without success.
30. Four days after the exclusion, the Council allocated a practitioner to liaise with Mrs Y about D’s provision. The practitioner called Mrs Y to explain the next steps. The notes of the call show Mrs Y said she did not want to keep putting D in placements where he will fail. Mrs Y reiterated a preference for EOTAS.
31. On 19 October 2023 the Council arranged a meeting with management to discuss D’s case. The Council decided to offer a place within its ‘Flexible Learning Provision’. The Council intended this to be a temporary placement whilst it found a permanent offer for D.
32. Records show the Council contacted Mrs Y on 6 November 2023 to arrange for her to visit the provision and attend a pre-admission meeting. The records note that Mrs Y declined this suggestion and reiterated that D would not attend.
33. The provision allocated is set within the grounds of a specialist school for children with SEMH. Its website says the provision uses small classes and “nurturing” teachers to help pupils understand and cope with the anxieties associated with mainstream classrooms.
34. According to online maps, the provision is 23 miles from D’s address. In normal traffic the journey time is estimated to be around 40 minutes. Mrs Y says the journey time is longer during periods of heavy traffic.
35. The Council’s records show it applied for D to receive funded home to school transport, but the application did not progress because Mrs Y declined to consider the placement.
36. Mrs Y continued to request EOTAS. The Council said it would not consider EOTAS until it had consulted all other potential placements for D.
37. D remained on roll at the provision despite not attending. The Council says the provision completed weekly safeguarding checks via phone to Mrs Y and sent schoolwork to D’s home address. Mrs Y says the weekly checks did not take place and the work sent home was colouring sheets.
38. Following an updated Educational Psychologist’s (EP) report in March 2024 the Council decided to start the process of amending D’s EHC plan. This was following a change from D’s primary need being related to SEMH to ASD with PDA.
39. The Council started consulting with potential schools in May 2024.
40. Records provided by the Council show a discussion about D’s case on 20 June 2024. The Council noted that all schools consulted about a placement for D said they could not meet his needs, except for one school which had not at the time responded. That school has since said it cannot offer a place to D.
41. The Council held a complex case management meeting on 19 July 2024. Mrs Y expressed her frustrations and that she was at risk of losing her job whilst D remains out of full-time education. While the Council did not agree that D required EOTAS, it said the information from the March 2024 EP report indicated that D would benefit from specialist provision.
42. On 23 July 2024 the Council issued a final EHC plan. The plan did not name a specific placement but instead said a “mainstream school” in Section I.
43. Following the decision to seek specialist provision for D, the Council made a referral on 11 September 2024 to its ‘Interim Provision Service’ (IPS) for D to have 1:1 teaching at home. D received his first session on 14 October 2024.
44. In the meantime, Mrs Y submitted an appeal against sections B, F and I of D’s EHC plan. At the time of writing this statement the appeal hearing has not yet taken place and D continues to receive interim provision via some home tuition and once weekly attendance at a forest school.

Was there fault by the Council causing injustice to Mrs Y and D?

45. Mrs Y complains the provision allocated to D was too far from his home address. She also complains it would not have been appropriate for D to travel without a trusted adult. Having considered the distance between D’s home and the provision, I find no fault by the Council. This is because the general guidance suggests that journeys should not exceed 45 minutes in most cases. The guidance also says the duration may be exceeded in certain circumstances, for example when children live in remote areas. It goes on to say that for those with SEN, journeys may be more complex. In normal traffic the suggested route from D’s house is 40 minutes and so the Council’s decision is not contrary to guidance.
46. The Council has confirmed it did not consider whether D needed the support of a passenger assistant. This is because the transport arrangements did not proceed further than an initial application as Mrs Y made clear very quickly that D would not attend the provision. I do not find fault on this point because there was no opportunity to discuss the best travel arrangements for D as Mrs Y did not want the placement. In my view, and based on the information seen, it is unlikely that the provision of a passenger assistant would have led to a different outcome as Mrs Y was clear in her view that the placement was unsuitable for D.
47. I have also considered Mrs Y’s complaint that the interim provision initially offered was not suitable for D and did not meet his learning requirements as set out in Section F of the EHC plan in place at the time. Mrs Y did not visit the provision or attend any pre-admission meetings. This is because she said that D’s needs could not be met in any school type setting. This is something Mrs Y continues to challenge via appeal. I do not find fault on this point. At the time the Council offered the placement in October 2023, D’s primary need as outlined in his EHC plan was SEMH. Whilst CAMHS had set out a ‘care and safety plan’ regarding D’s triggers, there was no professional recommendation for D to receive specialist provision. Furthermore, information available online about the provision says that teaching is delivered to primary-aged children in small groups and is tailored to those with SEMH and school-based anxiety and trauma.
48. However, from March 2024 the Council had updated information about D and the changes to his learning needs. In July the Council agreed that the new information prompted a referral to the IPS which the Council completed in September. D then received interim home tuition from October.
49. In my view, there is fault by the Council. It was due to review D’s EHC plan by April 2024 as the previous annual review took place in April 2023. The Council did not review D’s EHC plan when it should have done, and this delayed Mrs Y’s right of appeal. Furthermore, there was a lost opportunity to consider the new EP report from March 2024 and any subsequent changes needed to D’s provision. We now know the EP report was the primary factor in the Council’s decision to fund interim home tuition. It is not clear from the available information why the Council did not make changes to D’s provision before September 2024.
50. When considering complaints, we make findings based on the balance of probabilities. This means that we look at available and relevant evidence and decide what was more likely to have happened. On the balance of probabilities, it is my view that the failure to review D’s EHC plan in April 2024 caused injustice in the form of missed provision. This is because I consider it more likely than not the Council would have arranged the IPS had it considered the EP report and reviewed the suitability of the provision in mid-2024.
51. To remedy the injustice caused by fault, the Council has agreed to apologise and make the payments outlined in the following section of this statement. I have not recommended any service improvements because the Council has confirmed that staff levels have stabilised in recent months and that it has implemented various process changes and staff training.

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Action

52. The Ombudsman can sometimes reach a balance of probability view that additional provision would have been in place sooner if there had been no delay in an annual review process. In such cases, we can recommend a symbolic payment to acknowledge the impact from missed provision. For D, the Council should make a symbolic payment of £1500 in recognition of the one and a half school terms during which he did not receive interim home tuition.
53. The Council should also apologise to Mrs Y for the failures identified in this statement and make a payment of £200 in recognition of her frustration caused by delayed appeal rights. When making the apology, the Council should consider our guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice.
54. The Council will provide us with evidence it has complied with the above actions within four weeks of our final decision.

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Decision

55. I find fault causing injustice for the reasons explained in this statement. The Council will complete the actions we have recommended to remedy the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman