Summary: Miss X complained the Council did not deliver appropriate education to her son after his exclusion from college and that its communication was poor. We found fault because the Council failed to adequately consider its statutory duties, consult with other providers in a timely manner or communicate with Miss X appropriately. Miss X suffered avoidable frustration and distress and her son missed out on some of the education he should have received. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Miss X, issue reminders and guidance to relevant staff and consider reviewing some of its policies and procedures.

The complaint

1. Miss X complains the Council did not secure appropriate education for her son, Y, after an initial period of tutoring following his permanent exclusion from college in September 2022. She also complains of poor communication from the Council when trying to sort the issues out.
2. Miss X says this has caused her distress and frustration and that Y has missed out on the education he should have received.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. 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)
6. 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.
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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What I have and have not investigated

8. Paragraph four (above) applies to this complaint. I have exercised discretion to investigate back to when Y was permanently excluded from college in September 2022. I am satisfied it is reasonable to include this period in my investigation. I have not investigated any matters prior to this date.
9. My investigation ends when Y started at a new college in September 2023.
10. Although not part of Miss X’s original complaint to us, I have also exercised discretion to include the Council’s actions in relation to sending consultations to new education providers for Y. It became apparent during the course of my investigation that there had been a delay in taking action. I have therefore included this in my investigation.

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How I considered this complaint

11. I have considered all the information Miss X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
12. Miss X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Special educational needs

13. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them.
14. The EHC Plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this. Section F of the plan is about the special educational provision needed by the child or the young person. Section I is about the name and/or type of educational placement set out in the plan.
15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act 2014 (S42)). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the 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)  
16. We can look at complaints about where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Annual reviews of EHC plans

17. The Department for Education publishes statutory guidance, the SEND Code of Practice, which sets out the duties of councils. The guidance says:
1. councils should arrange for EHC Plans to be reviewed at least every 12 months;
2. if a child attends a school, a council can ask the school to carry out the review; and
3. if the plan needs to be amended, a council should start the process of amendment without delay.

Early reviews of EHC plans

18. A request can be made for an early review (sometimes referred to as an emergency or interim review) of an EHC Plan if there is a change of circumstances, such as a change in need or the current EHC Plan is no longer meeting needs.
19. The council does not have to agree to this request and there is no statutory right of appeal of this decision.

Alternative provision

General section 19 duty

20. 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 S19 or alternative education provision (AP).
21. 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)
22. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
23. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’)

Exclusion 

24. In cases where a child is permanently excluded from a school, the law is clear that 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.

Available and accessible

25. The courts have considered the circumstances where the S19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under S19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)

Focus report

26. 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 sight? published July 2022
27. Where councils arrange for schools or other bodies to carry out the functions on their behalf, the council remains responsible. Therefore, a council should retain oversight and control to ensure its duties are properly fulfilled.

Looked after children

Section 23ZZA of the Children Act 1989 says that it is the duty of the local authority to promote the educational achievement of previously looked after children in their area.

What happened

28. I have set out below a summary of the key events. This is not meant to show everything that happened.
29. Ms X has a son, Y, who is secondary school age. Y was previously a looked after child. He has SEN and an EHC Plan was in place throughout the investigation period.

2022

30. In September 2022, Y began attending College A. By October 2022, Y had been permanently excluded from the college.
31. Miss X met with the Council in November 2022. It agreed to organise a package of AP to begin in December 2022 for six weeks. This was a package of tutoring to be delivered at Miss X’s home. The package was set at one hour per week.

2023

32. During various contacts made in January 2023, Miss X chased the Council to discuss what other AP could be put in place for Y, what was happening with finding him a new permanent placement at a school or college and progress in updating his EHC Plan. Miss X also requested an interim review of Y’s EHC plan.
33. The Council apologised for its delayed replies and said Y’s tutor hoped to increase from more than one hour per week in line with Y’s ability to engage and stay focussed. The Council confirmed it had allocated Y’s case to an officer to look into beginning the consultation process and that it would be beneficial if Y was able to increase his hours of tuition.
34. At the beginning of February 2023, Miss X called the Council to ask for an update regarding schools for Y. She was concerned about the lack of structure to his day as he was not attending any formal education placement.
35. In mid-February 2023, the Council sent consultation letters to five providers to see if they could offer Y a placement. The Council says it sent Y’s draft EHC Plan to Miss X on the same day.
36. A week later, Miss X called the Council voicing her concerns that Y was still not attending an educational setting. She advised that Y no longer wished to carry on with the tutoring in place. Miss X complained the Council had said it would be able to organise Y a school or college placement within six weeks but this had not happened. Miss X again voiced her concerns about the lack of structure to Y’s days as he was not in formal education. She asked the Council about what had happened to a suggested AP referral to an outdoor pursuits centre, Provider C.
37. Tutoring formally ended in February 2023.
38. Over the first two weeks of March 2023, Miss X called the Council twice to ask for an update. The Council advised it was waiting for the results of the consultations to come in.
39. Towards the end of March 2023, the Council sent initial consultations to four more providers and re-sent them to three providers previously consulted.
40. By the end of March 2023, there had not yet been any offers of a placement for Y from those consulted. Miss X had been contacted by one of the colleges consulted (College B) to discuss a potential placement for Y, but this would not begin until September 2023.
41. Miss X asked the Council what would be put in place for Y if the course at College B did not start until September 2023. The Council suggested it would contact Provider C to look at what provision it could offer Y. The Council also suggested it would be beneficial to get Y to begin working with the tutor again, in preparation for any college courses.
42. In mid-April 2024, Miss X again chased the Council for an update. The following day, a course beginning in September 2023 was confirmed at College B.
43. Around this time, Y sustained an injury which meant he would be unable to access outdoor-based activities at Provider C.
44. By mid-May 2024, the Council had received a formal offer from College B and agreed the necessary funding for Y’s September placement.
45. In mid-August 2023, the Council issued a final EHC Plan naming College B in Section I of the EHC Plan.
46. On the same day, the Council responded to a complaint Miss X had made. In its response, it said:
1. a package of alternative provision (tutoring) was put in place to start in December 2022 with a plan to review this after six weeks;
2. the review did not happen, engagement with tuition had been sporadic and tutoring ended earlier than planned, in February 2023;
3. it had been active at this time in searching for other AP to support Y’s aspirations;
4. that other AP (Provider C) was offered and not accepted; and
5. the Council had always encouraged Y to engage with the tutoring on offer as identifying an education placement for him had proved to be difficult.
47. The Council ended the letter by confirming that it had a responsibility to provide full-time education for Y and that it had not been possible. It said it had tried several consultations with providers (for a permanent placement) and did have an offer of AP at Provider C in addition to tuition which had not been taken up.
48. Y started at College B in September 2023 and is still attending.
49. Miss X made further complaints to the Council during late 2023. She was signposted to the Ombudsman in the Council’s final response sent early in January 2024.

Analysis

Sourcing a new education placement for Y

50. Although not part of Miss X’s original complaint to us, during the course of my investigation, it became clear the Council had not acted swiftly to secure a new placement for Y.
51. When Y was excluded from College A in September 2022, the Council should have begun to try and find him a new permanent placement. The Council’s complaint response to Miss X sent in October 2023 says that during the time from October 2022 to February 2023 consultations and placement searches were underway. However, the only evidence of this is a letter from one provider, at the beginning of January 2023, saying it could not meet Y’s needs.
52. On the balance of probabilities and with a lack of evidence to the contrary, I am satisfied the Council did not act decisively enough to consult with a range of new or previously approached providers (from before College A was organised) at this time. Evidence shows the Council began to send a range of consultations from mid-February 2023 and only after Miss X had started to chase progress early in February 2023. This lack of decisive action is fault. The Council left things to drift which meant little action took place until four months after Y’s exclusion. This would have caused Miss X and Y avoidable delay and uncertainty about what the next steps might be and where Y might secure a permanent placement. I have made a recommendation below to remedy this injustice.

Initial alternative education provision

53. Miss X complains the Council did not source appropriate alternative education provision for Y when he was not attending a permanent setting due to his exclusion.
54. When Y was first excluded from College A in October 2022, the Council acted to secure a package of AP to begin in December 2022. The Council has offered no explanation or evidence to account for the delay in the package being sourced or why it did not begin until December.
55. The Council had a duty under S19 to deliver some form of educational provision for Y, equivalent to full time, from the sixth day after his exclusion. Not doing so was fault. It would have meant there was an avoidable delay in Y having the opportunity to access some form of AP and will have caused frustration and distress to Miss X. I have made a recommendation below to remedy this injustice.
56. When considering the tuition organised for Y, the Council has provided no evidence of its rationale for setting this at one hour per week and whether it considered this to be a sufficient level of AP equivalent to full time. This is fault. The Council should have had a clear rationale for how and why the package was arranged as it was. When tuition ended, the Council did not carry out the scheduled review or any other review. This is also fault. I am satisfied this lack of rationale or review leads to uncertainty for both Miss X and Y as to what might have happened if the Council had both a clear rationale for the package and had carried out a review as it was supposed to. I have made a recommendation below to remedy this injustice.

End of tutoring

57. From mid-February 2023, the Council was aware that Y was finding it increasingly difficult to engage with the tutoring. I acknowledge the Council began at this time to more widely consult with education providers for a permanent placement for Y. However, there is no evidence to suggest it looked to source any other interim AP for him, apart from at Provider C. Provider C was approached at the end of March, five to six weeks after the Council had become aware tutoring was not working and at least one month after the tutoring had formally ended.
58. The Council agreed AP to start at the beginning of May 2023 at Provider C. There is no evidence to suggest the Council discussed this with Miss X and she was therefore not advised of this until the day before it was due to start and Provider C contacted her. By this time, activities at Provider C were unsuitable for Y due to injury.
59. As part of my enquiries, I asked the Council what action it took when it realised this provision was unsuitable for Y. The Council was unable to provide any evidence or comment on any actions taken.
60. I disagree with the Council’s insistence in its responses to Miss X that as tutoring was available there was suitable AP on offer to Y throughout the time he was not attending formal education. I am satisfied, in the circumstances of this complaint, the Council should have acted more decisively to consider its S19 duties to arrange suitable AP for Y and investigate other ways this could be met than via home tutoring, or the eventual offer at Provider C which was by then unsuitable. This lack of consideration is fault. It would have caused further distress and frustration to Miss X and meant that Y was denied the opportunity to engage in other forms of AP when his tutoring ended until the time he started at College B. I have made a recommendation below to remedy this injustice.

Y’s EHC Plan

61. It is unclear whether there was a recently updated final EHC Plan in place during the period of investigation as no evidence of any EHC Plan annual review completed during this time has been provided. Evidence does show that Miss X chased the Council in February 2023 for a copy of Y’s EHC Plan which she said should have been sent in May 2022, but was not provided. I have seen no evidence of a copy of any final EHC Plan in place when Y was excluded from College A.
62. There is no evidence to suggest the Council acted on Miss X’s January 2023 request for an interim review of Y’s EHC Plan. Although the Council did not have a specific duty to carry out an early annual review of Y’s plan, it should have considered it. I am also satisfied, that in the circumstances of this complaint, it would have been good practice for it to have considered whether a review was required due to Y’s exclusion from College A and subsequent difficulty engaging with AP.
63. This lack of review or consideration of holding one is fault. It meant that there was the uncertainty as to whether the EHC Plan being sent to providers during the consultation process was an accurate reflection of Y’s needs. It also meant that there was the uncertainty as to whether a new final EHC Plan might have been issued earlier than August 2023, bringing with it associated appeal rights for Miss X. I have made a recommendation below to remedy this injustice.

Delivery of Section F provision in Y’s EHC Plan

64. The Council has a non-delegable duty to deliver Section F provision to Y.
65. As part of my enquiries to the Council, I asked it to explain how it had delivered provision outlined in Section F of Y’s EHC Plan whilst he was not attending formal education in the time period between College A and College B (October 2022 to July 2023).
66. The Council provided no comment or evidence as to any Section F provision that had been delivered.
67. I am satisfied that Y had no opportunity to access Section F provision from October to December 2022 and from February to July 2023. The Council did not have oversight as to whether any Section F provision was delivered through the tutoring Y was able to access. This lack of Section F provision and oversight is fault. It would have added to Miss X’s frustration and distress. As the Council had not fully considered its S19 duties, this in turn meant that Y also missed out on the opportunity to access any Section F provision as outlined above. I have made a recommendation below to remedy this injustice.
68. In relation to the period of tutoring, I am satisfied, that on the balance of probabilities, it is more likely than not Y would have had difficulty in accessing any Section F provision available via the tutoring from December 2022 to February 2023, given his difficulties in engaging. During this time period, I consider the injustice to him was therefore limited and will make no further recommendation linked to this.

Communication

69. Miss X complains of a lack of communication from the Council.
70. Evidence provided by Miss X demonstrates she had to chase for responses to emails and to see if actions agreed or discussed in telephone conversations had been carried out. There is also the lack of evidence the Council has been able to provide in relation to its record keeping, communications, actions and considerations of Y’s individual case.
71. On the balance of probabilities and with a lack of evidence to the contrary, I am satisfied the Council’s communication, including its record keeping, was poor. This is fault. It will have added further to the distress and frustration Miss X felt at the situation and meant that things did not progress as swiftly as they might have done if decisive action, clear communication and adequate record keeping had taken place throughout. I have made a recommendation below to remedy this injustice.

Looked after children

72. The Council had a duty to promote Y’s educational achievement as he was previously a looked after child.
73. In response to my enquiries, the Council was unable to provide comment or evidence as to any consideration given in Y’s case. This lack of consideration is fault. It will have added to the distress and frustration Miss X felt and lost Y the opportunity to have this considered. I have made a recommendation below to remedy this injustice.

The Council’s SEN transformation plan

74. In response to my enquiries, the Council advised it had a SEN transformation plan in place with a clear action plan for improvement. Whilst I welcome this step, part of the summary of actions for the transformation plan shows a report regarding AP was shared with the Council’s cabinet members in December 2022.
75. Considering the lack of sufficient oversight in relation to its S19 duties both at this time and for the seven months after this, I am satisfied the transformation plan had therefore had little impact in this area. I have made various recommendations below in relation to the Council sharing relevant information and considering reviewing some of its policies and procedures.

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Agreed action

76. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks of the date of my final decision:
1. apologise to Y and Miss X for the injustice caused by the lack of timely consultations to providers, the lack of AP from October to December 2022 and February to July 2023, its failure to fully consider its S19 duties, the lack of oversight for its S42 duties from October 2022 to July 2023, its poor overall communication and record keeping, and for its failure to properly consider its duties relating to a previously looked after child;
2. make a symbolic payment to Miss X of £1600 to remedy the lack of appropriate AP in place for Y and the lack of opportunity to access relevant Section F provision from his EHC Plan from October to December 2022;
3. make a symbolic payment to Miss X of £1800 to remedy the lack of appropriate AP in place for Y and for the lack of opportunity to access relevant Section F provision from his EHC Plan from February to July 2023;
4. make a symbolic payment of £300 to Miss X to remedy the distress and uncertainty caused by the identified faults;
5. remind relevant officers and managers of the Council’s statutory duties under S19 of the Education Act 1996;
6. consider reviewing its policies and procedures to ensure it retains oversight and control for its S19 duties;
7. share with relevant officers and managers, the Ombudsman’s focus report Out of school, out of sight?;
8. remind relevant officers and managers of the Council’s statutory duties under S42 of the Children and Families Act 2014;
9. consider reviewing its policies and procedures to ensure it retains oversight and control for its S42 duties;
10. remind relevant officers and managers of the Council’s duties to promote educational achievement for previously looked after children;
11. remind relevant officers and managers of the need to communicate in a timely and transparent manner; and
12. remind relevant officers and managers to make and store appropriately detailed and contemporaneous records regarding SEN casework and communications.
77. Within six months of the date of my final decision, I recommend the Council review its SEN transformation plan in relation to AP and submit this review to the relevant committee to ensure cabinet oversight and scrutiny.
78. The apology written should be in line with the Ombudsman’s guidance on remedies on making an effective apology.
79. Payments made are in line with the Ombudsman’s guidance on remedies.
80. The Council should provide us with evidence it has complied with the above actions.

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Final decision

81. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman