Summary: Ms X complained that the Council failed to provide her child, Y with suitable education since November 2023. She also complained about its poor communication and delays handling her complaint. We find the Council at fault. This impacted Y’s education and caused avoidable distress and uncertainty to Ms X. The Council has agreed to apologise, make a payment to Ms X, and consider allowing Y to remain at their current school for an additional year.

The complaint

1. Ms X complained the Council has failed to provide her child, Y with suitable education since November 2023. She also complained about poor communication and delays in complaint handling.
2. She says Y has missed out on education and making friendships and has caused her considerable stress.
3. She wants the Council to apologise, provide Y with suitable education, reimburse the costs she paid for alternative provision, and improve its service.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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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How I considered this complaint

8. I considered evidence provided by Ms X and Council as well as relevant law, policy and guidance.
9. Ms X and Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and legislation

Alternative provision

10. 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.
11. 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)

Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England

12. This states that for permanent exclusions, the local authority must arrange suitable full-time education for the pupil to begin from the 6th school day after the first day the permanent exclusion took place.

What happened

13. Y has special educational needs and was first issued with an Education, Health and Care (EHC) Plan in 2019.
14. In November 2023, Y was permanently excluded from school.
15. In December, the school told the Council that it could no longer meet Y’s special educational needs.
16. In February 2024, Ms X submitted a stage one complaint to the Council, raising concerns that:
• Y was out of education;
• the Council’s Special Educational Needs (SEN) team had failed to communicate effectively; and
• she had personally funded alternative provision and wanted reimbursing.
17. Later that month, the Council upheld her complaint, acknowledging that Y was without education. It stated that it was working to find a suitable placement and arrange interim alternative provision. The Council also apologised for delayed communication but declined to reimburse Ms X, because the provision was not recommended by an educational professional or supported Y’s EHC Plan outcomes.
18. In April, Ms X escalated her complaint to stage two, raising:
• Y remained out of education;
• continued poor communication from the case worker;
• loss of an alternative provision placement due to this poor communication; and
• the caseworker had told her to book the alternative provision but now the costs incurred were not being reimbursed.
19. In May, a council officer investigating the stage two complaint met with Ms X to understand her concerns and desired outcomes.
20. Later that month, Y began receiving 10 hours of home tutoring per week until the end of the school year.
21. In June, Y started attending an alternative provision setting.
22. In July, the Council issued Y’s final amended EHC Plan.
23. In September, Ms X brought her complaint to the Ombudsman.
24. In November, Y began attending a specialist school.
25. In January, the Council issued its stage two complaint response, acknowledging the significant delay in responding. It partially upheld Ms X’s complaint, and found:
• Y received no education provision between October 2023 and May 2024;
• communication from the caseworker could have been better with stakeholders but they did provide key updates to Ms X;
• the caseworker acted on the request for the alternative provision within an appropriate timeframe, and they cannot say if they acted earlier whether this would have changed the outcome; and
• meeting minutes indicated a commitment being made by the caseworker to fund the alternative provision, and the Council should have provided more clarity that the agreement to fund was subject to a panel decision.
26. In recognition of the errors, the Council offered Ms X £200 for the time and trouble spent pursuing the complaint, and £1800 for the loss of education between November 2023 and June 2024.

My findings

Poor communication and complaint handling

27. The Council has accepted that its communication was inadequate. Ms X believes this caused Y to miss an opportunity for an earlier placement. The Council’s poor communication is fault. While I cannot say, even on the balance of probabilities, whether Y would have secured alternative provision earlier had communication been better, the uncertainty has caused Ms X avoidable distress and uncertainty.
28. The Council has acknowledged delays in handling Ms X’s complaint. Instead of responding within the 20 working days specified in its complaint’s procedure, it took 287 working days to issue a stage two response. This delay is fault and caused Ms X distress and uncertainty. In recognition of this, the Council offered Ms X £200, which I find appropriate and in line with our Guidance on Remedies.

Alternative provision

29. The Council has acknowledged that it indicated a commitment to funding the alternative provision later arranged by Ms X but did not remedy this in its complaint response. This is fault and has caused Ms X distress. As the Council has recognised this as fault, it should reimburse Ms X.
30. The Council has accepted that it did not arrange suitable alternative provision for Y, and in response, has offered £1,800 to recognise the missed education. This failure also caused avoidable distress and uncertainty for Ms X.
31. I have considered whether the Council’s remedy is in line with the expectations in our Guidance on Remedies. In my view, while the Council has considered the missed education, it has not considered the significance of Y’s special educational needs, the impact of this on their education and wellbeing, or the missed Speech and Language Therapy (SALT) provision outlined in their EHC Plan. Given these factors, an increased remedy is appropriate.
32. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2400 per term to acknowledge the impact of that loss. The figure we recommend takes account of the severity of the child’s special educational needs, whether any provision was made, whether this was a key year of education, and any loss or delayed right of appeal to the tribunal.
33. In Y’s case, the extended lack of education and alternative provision has caused significant disruption to their learning and development. They have also missed essential SALT support that would have been available had they remained in school, further impacting this period out of education. A higher remedy of £4,800 is justified.
34. Ms X has shared that a financial remedy would not be in their best interests and could negatively affect them. Instead, she has requested a more meaningful, practical solution that directly benefits Y. Although she has explored additional educational options, these would require evening or weekend learning, which is not suitable for Y as it would take away from their rest and family time. Ms X says an additional year at school would provide structured, high-quality education in an environment tailored to Y’s needs, ensuring they receive the missed education and SALT support in the most effective way. Ms X feels this would offer them the best opportunity to regain lost progress and move forward with the necessary support.
35. The Council has said it cannot agree to an additional year at the school at this time, as Y’s suitability for the school will depend on various factors to be assessed at his next review. Additionally, it is uncertain whether the school’s offer to Y will remain available next year, and any changes may, in turn, affect the Council’s position. The Council has confirmed that a review with the school has taken place, and it will consider the relevant factors before making a decision.

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Action

36. To remedy the injustice caused by the above faults, within four weeks of the date of our final decision, the Council has agreed to: 
• apologise to Ms X in line with our guidance on Making an effective apology;
• if not already done, pay Ms X its proposed remedy of £200 for the distress caused by delays in complaint handling;
• pay Ms X £300 to recognise the distress and uncertainty caused by the above faults; and
• pay Ms X £186 to recognise the cost of the alternative provision she arranged, based on the Council’s indication that it would cover this expense.
37. Within two months from the date of our final decision, the Council has agreed to consider allowing Y to remain at his current school for an additional year. If this is not possible, then the Council will pay Ms X £4,800 for Y’s benefit, to recognise the lack of alternative provision for two terms (£2,200 per term) and the lack of SALT provision for two terms (£200 per term). This is instead of the Council’s proposed remedy of £1800.
38. I have not recommended any action for the Council to take to improve its services, as the Council has already committed to improving access to education in line with its duty under Section 19 of the Education Act 1996. It has also agreed to provide training on effective complaint handling.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.  

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Investigator's decision on behalf of the Ombudsman