Summary: Ms X complained the Council failed to provide education for her child following their exclusion from school. We found fault with the Council for delaying provision of suitable alternative provision. The Council agreed to pay Ms X £1,900 to address Y’s missed educational provision caused through the Council’s delays. The Council also agreed to apologise to Ms X and pay her £250 for the inconvenience, frustration and distress caused.

The complaint

1. Ms X complained the Council failed to provide education for her child following their exclusion from school.
2. Ms X also complained when the Council did put in place alternative provision this was not a full-time equivalent.

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What I have and have not investigated

3. I have investigated Ms X’s complaint about the lack of alternative provision of education for her child.
4. I have not investigated matters about Ms X’s appeal to the tribunal. When a person appeals to the tribunal, the Ombudsman cannot investigate the complaint. The educational provision and placement detailed in the Ms X’s child’s EHC Plan is in the process of being appeal to the tribunal putting these matters outside the jurisdiction of the Ombudsman.
5. I was able to investigate Ms X’s child’s alternative provision up to the tribunal date because her child was excluded from school before production of the EHC Plan. At that time, Ms X’s child’s lack of attendance at school was not directly linked to the EHC Plan or the their special educational needs. This means we could address this matter separate to the issues considered by the tribunal.

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The Ombudsman’s role and powers

6. 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)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended).
8. 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.
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. 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)
11. 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 the final decision with Ofsted.

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How I considered this complaint

12. I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
13. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Relevant Law and Guidance

Alternative Provision of education

14. Councils must “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”. (Education Act 1996, section 19(1))
15. 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))
16. The Council must consider the individual circumstances of each particular child and be able to demonstrate how it made its decision.
17. The education provided by a council must be full-time unless a council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
18. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. (Out of school… out of mind? How councils can do more to give children out of school a good education, published in 2016)
19. We made six recommendations. Councils should:
• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (with the exception of minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence in coming to decisions;
• decide, based on all the evidence, whether to require attendance at school or provide the child with suitable alternative education;
• keep all cases of part-time education under review with a view to increasing it if a child's capacity to learn increases;
• adopt a strategic and planned approach to reintegrating children into mainstream education where they are able to do so; and
• put whatever action is chosen into practice without delay to ensure the child is back in education as soon as possible.
20. Our focus report states local authorities should not assume that schools shoulder the entire responsibility for a child’s education.
21. Statutory guidance (Children missing education statutory guidance for local authorities) sets out that the “school should agree with their local authority, the intervals at which they will inform local authorities of the details of pupils who fail to attend school regularly, or have missed ten school days or more without permission.” This applies to all schools, including academies.
22. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
23. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.
24. A compulsory school week in the UK is 32.5hours including breaks.

Council complaints procedure

25. The Council operates a three-stage complaints procedure.
26. At Stage 1 of the Council’s complaints procedure it will provide an informal response to a complaint. The Council’s policy says if its complaints team receives the complaint directly it will acknowledge a complaint within three working days. The Council will then provide a complaint response within 20 working days.
27. If a person disagrees with a Stage 1 complaint response they can ask for consideration of the complaint at Stage 2. The Council provided no maximum timescale for a response at Stage 2 but, instead, says it should agree a timescale with the complainant.
28. If the Council cannot resolve the complaint at Stage 2 it should pass the complaint to the Local Government and Social Care Ombudsman for independent consideration. The Council says this is Stage 3 of its complaint procedure.

What happened

29. On 9 January 2023, Ms X’ Child’s, who I shall call Y, school excluded Y. The School excluded Y permanently pending consideration by the Governor’s Disciplinary Committee.
30. Ms X contacted the Council on 19 January 2023 to complain that Y was out of education following their exclusion on 9 January 2023. Ms X said the Council should have provided education to Y from 17 January 2023 but has failed to do so. The Council acknowledged Ms X’s complaint.
31. Ms X chased the Council for a response to her complaint and for provision of alternative provision of education for Y on 31 January 2023, 9 February 2023, 16 February 2023 and 25 February 2023.
32. On 28 February 2023, Y started to receive 2 hours of education each week from a tuition provider, Provider 1. The Council also responded to Ms X on this date to advise she could approach the Local Government and Social Care Ombudsman (the Ombudsman) with her complaint.
33. The Governor’s Disciplinary Committee held a permanent exclusion hearing about Y on 10 March 2023 and decided to permanently exclude Y. The Council attended this meeting.
34. On 17 March 2023, the Council provided a final complaint response to Ms X. The Council said it normally provides education to a child excluded from school through its Pupil Referral Unit but decided this was not in Y’s best interest. The Council said it was consulting with schools to find a suitable placement for Y. The Council said it was now providing Y with 25 hours of education each week through a second tuition provider, Provider 2.
35. Ms X responded to the Council to advise Y was not receiving any education from Provider 2. Ms X said Y only received 2 hours of education each week from Provider 1. The Council accepted it made and error in its letter of 17 March 2023 and promised to continue to work to provide education for Y.
36. From 30 March 2023, the Council provided Y with 15 hours of education each week through Provider 2.
37. On 25 May 2023, Y stopped receiving education from Provider 1.
38. The Council increased Y education provisional with Provider 2 to 25 hours each week from 21 June 2023.

Analysis

Missed educational provision

39. Y stopped attending school on 9 January 2023 following their exclusion. While Y had been excluded on 9 January 2023, this exclusion was not strictly permanent as it was awaiting consideration by the Governor’s Disciplinary Committee.
40. Government guidance recommends councils arrange education when it is clear a child would be away from school for 15 days or more. When Ms X first contacted the Council on 19 January 2023, Y had not been absent from school for 15 days. Since Y’s exclusion was not permanent at this time, it was not “clear” that Y would be absent for more than 15 days. I do not find fault with the Council failing to provide education to Y within the first 15 days of his exclusion.
41. The 30 January 2023 was Y’s 15th day of absence from School. Ms X contacted the Council on 31 January 2023 to chase alternative provision of education for Y. It would have been clear to the Council on 31 January 2023 that Y had been absent for more than 15 days. The Council should have considered its Section 19 duty to provide education for Y on this date. The Ombudsman’s recommendations for councils say the Council should have decided whether to require Y to attend school or provide Y with suitable alternative provision. The Council could not require Y’s attendance at school due to exclusion so should have provided alternative provision. The Council failed to do so and this was fault.
42. Government guidance says the Council should look to put in place alternative provision from day 6 of it becoming clear a child had been absent for more than 15 days. Day 6 for Y was 7 February 2023.
43. From 7 February 2023 until 28 February 2023, Y missed two full weeks of education without any alternative provision when considering the school holidays during this time.
44. Y received two hours of education per week from 28 February 2023 until 29 March 2023, five full weeks. The Council must provide “full-time” education unless it decides full-time education would not be in Y’s best interest. The Council decided its Pupil Referral Unit was not in Y’s best interest but has never decided full-time education would not be in Y’s best interest. Only providing two hours of education each week to Y is fault.
45. From 29 March 2023 to 25 May 2023, a period of five weeks when considering school holidays, the Council provided Y with 17 hours of education. The Council then provided 15 hours of education for a further four weeks until 21 June 2023.
46. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
47. The average school term has 12 to 13 weeks. Overall, Y missed seven weeks with two or less hours of education each week. Y then missed a further nine weeks with inadequate education of between 15 and 17 hours of education each week.
48. Given the missed education and the potential impact this had on Y, considering the amount of tuition provided for Y, the Council should pay Ms X £1,900 for Y’s lost education.
49. Since 21 June 2023, the Council has provided Y with 25 hours of education through alternative provision each week. 25 hours of alternative provision education is equivalent to full-time education in school when considering the breaks in a school day. I do not consider a further award is appropriate once the Council put in place this level of provision.

Complaint handling and impact on family

50. Ms X has advised given the amount of time Y was without suitable alternative provision of education, she and her husband had to take annual leave from work to care for Y. Ms X and her partner also had to consider reduced hours causing stress and worry on the household about how this would impact on their finances. Additionally, Ms X has expressed the entire situation caused her, and her partner, worry and stress about her child’s educational prospects and the impact on their own careers.
51. The Ombudsman is not a substitute for the courts and cannot award compensation in the same manner. It is not always possible for the Ombudsman to provide awards for such things as loss of income or potential impact on career progression. However, we can provide symbolic awards for distress, frustration and inconvenience caused by a Council’s fault.
52. It is clear the Council’s delays in putting in place suitable alternative provision have caused Ms X, and her family, distress, inconvenience and frustration, as detailed in paragraph 50.
53. It is also of note that Ms X complained to the Council on 19 January 2023 but the Council failed to provide its first formal response until 28 February 2023. Under the Council’s complaint handling policy, it should have provided Ms X with a complaint response by 16 February 2023. The Council failed to meet this deadline and instead directed Ms X to the Ombudsman on 28 February 2023. Failure to meet this deadline was fault.
54. The Council also failed to follow its complaints procedure in how it would it handle the complaint and instead directed Ms X straight to the Ombudsman without providing any complaint responses. The Council failed to investigate the complaint before signposting to the Ombudsman and only provided its complaint response later. The Council’s failure to follow its complaint procedure is fault.
55. This failure to follow its complaints procedure and deadlines caused Ms X further frustration and inconvenience in seeking answers to her concerns about her child not receiving education.

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Agreed action

56. Within one month of the Ombudsman’s final decision the Council should:
• Provide an apology to Ms X and pay her £250 for the inconvenience, frustration and distress caused through delays in providing education to Y and poor handling of Ms X’s complaint.
• Pay Ms X £1,900 to address the Council’s failure to provide suitable Alternative Provision for Y resulting in missed education. Ms X may use this as she sees fit for Y’s educational needs.
57. The Council should provide us with evidence it has complied with the above actions.

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Final decision

58. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman