Summary: The Council was at fault for failing to deliver suitable education – and special educational needs support – to Mr B’s son while he had no school to go to. The Council should make symbolic payments to Mr B and his son to recognise their injustice. It should also take steps to improve its service.

The complaint

1. The complainant, whom I refer to as Mr B, complains that the Council failed to deliver suitable education to his son, C, after he was permanently excluded from school.
2. Mr B says C missed out on education and support for his special educational needs. He says the Council offered a symbolic payment of £500 to recognise both his and C’s injustice (£250 each). He is unhappy with this offer.

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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. 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)
4. Service failure can happen when a council fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by a council to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. If we are satisfied with a council’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)
6. 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

7. I considered:
• Information from Mr B and the Council.
• Relevant law and guidance.
• The Ombudsman’s guidance on remedies.
8. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s responsibilities

9. 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’ provision.
10. If a child has been permanently excluded from school, the council should arrange section 19 provision by the sixth day of exclusion. (Statutory guidance ‘Alternative Provision’ January 2013)
11. 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.
12. The EHC plan is set out in sections which include section F (the special educational provision needed by the child or the young person).
13. Councils have a duty to make sure children receive the special educational provision set out in section F of their EHC plans. (Children and Families Act 2014, section 42)
14. The duty to arrange this provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains liable. (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)

What happened

15. The Council issued C’s EHC plan in 2022. It has been unable to find a copy of the final version of this plan; however, it has provided me with the draft plan, which said C should get:
• A personalised speech and language therapy programme, devised by a therapist and delivered by his school.
• Termly reviews by a speech and language therapist.
• Termly sessions with an occupational therapist.
• Various other teaching approaches designed to address his needs.
16. In November 2022, C’s school told the Council that it was ending his placement. This happened in early November. However, it agreed to continue delivering educational provision to C at home until Christmas.
17. The Council began trying to find a new school for C, but it was unsuccessful. As an interim measure, it referred him to its short-term home education service. This service began delivering education to C in January 2023, but only for an hour a week.
18. In March, the Council asked its home education service to increase its hours. But it had no capacity to do so.
19. Mr B complained about C’s education in April. The Council accepted that it had failed to deliver suitable education, and that this had caused C an injustice. It did say, however, that it had been trying to find a new school for C without success.
20. The Council committed to finding C additional section 19 provision with an external provider. It found such a provider in May, and it agreed to support C, including over the summer holidays.
21. The Council says it did not arrange online learning for C because Mr B had said this was unsuitable. But nonetheless, in June, its home education service arranged some online learning. C did not access it.
22. At the end of July – apparently before delivering any education to C – the external provider told the Council that it could no longer help. C did not receive any further provision over the summer holidays.
23. In September 2023 the Council found a new school for C and he began attending. Mr B raises no complaints about C’s education from that point on.

My findings

24. After C was excluded from school in November 2022, the Council had six days to find suitable, full-time alternative education.
25. The school which had excluded C agreed to continue providing him with some education until Christmas (around six weeks). So the Council was not at fault during this period.
26. However, from January to July 2023 – two full school terms – C received only one hour a week educational provision (although he could have managed more). This was nowhere near the full-time education the Council should have delivered.
27. The Council’s home education service did refer C for six weeks of online learning. He did not access this. This is unsurprising, as Mr B had already told the Council that online learning was unsuitable for C.
28. C also received none of the support in his EHC plan, including therapy, while he was out of school.
29. This means C did not receive a suitable, full-time education, or support for his special educational needs, for two terms.
30. This was not necessarily because of a lack of effort by the Council – it tried to increase the home education provision, tried to access an external provider (albeit only after five months), and tried to find a new school for C. All these efforts came to nothing (until the new term in September 2023).
31. Nonetheless, whoever was to blame, the Council had a duty to arrange educational provision and to deliver C’s special educational needs support while he was out of school, and it failed to do so. This caused C an injustice.
32. Our remedies guidance is underpinned by the principle that, when a council has made a mistake, we expect it to try and put the complainant back where they would have been without that mistake.
33. It is unlikely that this is possible in C’s case. This is because he needed the education and other support while he was out of school, and he did not get it.
34. Consequently, the Council should make symbolic payments to Mr B and C – in line with our remedies guidance – which recognise their injustice.

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Agreed actions

35. Within a month, the Council has agreed to:
• Make a payment of £4,000 to Mr B, on behalf of C, to recognise the education and support that C missed out on while he was out of school.
• Make a £500 payment to Mr B to recognise the additional pressures he faced while C was out of school.
36. Within two months, the Council has agreed to provide us with an action plan which sets out how, in future, it will avoid similar failures to secure section 19 provision and deliver special educational needs support to children who cannot go to school.
37. The Council will provide us with evidence it has done these things.

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Final decision

38. The Council was at fault for failing to deliver suitable education to C while he was out of school.

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Investigator's decision on behalf of the Ombudsman