Summary: Ms B, on behalf of Z’s parents, complained the Council failed to provide a suitable full-time education for him between February and December 2023. This caused Z, a previously looked after child, feelings of neglect, abandonment and worthlessness. The Council failed to provide a suitable full-time education between September and December 2023 and a suitable remedy is agreed.

The complaint

1. Ms B, on behalf of Ms X and Ms Y, complains the Council failed to provide a suitable full-time education for their son, Z, between February and December 2023.
2. They say this caused distress and caused Z, a previously looked after child, further feelings of neglect, abandonment and worthlessness.

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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. 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)
5. 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

6. This complaint is only concerned with the issue of whether a suitable education was provided between February and December 2023. Ms X and Ms Y have raised other issues as separate complaints and so will not be considered here.

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainants’ representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainants’ representative;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Section 19 duty

8. 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.
9. 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)
10. The education provided by the council must be full-time unless the 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)
11. 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’)
12. A child can be placed on a temporary part-time timetable in exceptional circumstances, such as when a medical condition prevents full-time attendance. This cannot be a long-term solution, and it must be clear when the part-time timetable will end. Absences from school as part of the part-time timetable will be considered authorised.

School exclusions general duties

13. 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 school would seriously harm the education or welfare of other pupils in the school.
14. Parents can appeal a head teacher’s decision to permanently exclude their child to the school’s governors. The governors may uphold the head teacher’s decision or may decide to reinstate the pupil.

Key facts

15. This section sets out the key events in this case and is not intended to be a detailed chronology.
16. In 2023, Z was struggling to manage at school full time and so in February, he moved to a part-time timetable. The information I have seen indicates the move to a part-time timetable was discussed with Ms X and Ms Y.
17. It is my understanding Z continued on a part-time timetable until 29 March when he was suspended by the school. The Easter holiday followed and at the start of the new term, the school issued a permanent exclusion. The Council then had a duty to ensure alternative education provision was in place from the sixth day after the exclusion.
18. I am aware the school then provided an off-site placement for Z at an alternative institution. The attendance information provided by this institution indicates Z started to attend on 28 April, more than six days after the permanent exclusion. Also on 28 April, Z’s permanent exclusion was rescinded.
19. On 19 June, the new institution excluded Z for two days due to behavioural issues followed by a three day exclusion the following week. By 6 July, Z stopped attending the new institution. While he did not return to his previous school even though he was still on roll there, the school issued a new permanent exclusion. The Council says it was notified and that it would then seek a change of placement for Z which could avoid the permanent exclusion. The Council again had a duty to provide alternative provision within six days. For the last two weeks of the summer term, Z completed online work experience.
20. As a result of the permanent exclusions, the Council agreed to carry out a needs assessment in respect of Z’s special educational needs. This resulted in the Council issuing and EHC Plan in December 2023. The Council failed to meet the statutory timescales for the issuing of the EHC Plan however the delay in doing so is part of a separate complaint and so I will not comment further here.
21. On 18 May 2023, Z became a looked after child as he was accommodated by the local authority, with the agreement of Ms X and Ms Y, under section 20 of the Children Act 1989. This meant the Council was required to produce a Personal Education Plan (PEP). This would form part of Z’s care plan and is an integral part of it. The Care Planning, Placement and Case Review (England) Regulations 2010 state exactly what information must be contained in the PEP as well as stating who is responsible for which aspect of the plan and specify timescales for action and review. The social worker is required to ensure the PEP is started within 10 working days of a child becoming accommodated by the Council. The first PEP meeting was held on 9 June 2023. However, as Z left the second institution on 5 July the PEP was not completed.
22. No education placement was provided to Z for the beginning of the new school year in September 2023. The Council was in the process of completing his EHC Plan and had not named an institution. Ms X and Ms Y expressed a preference for a specific provision but it was not registered with the Department for Education and so could not be named on his EHC Plan and was only available for three days per week.
23. Some tuition started for Z on 3 October. The notes I have seen indicate this was a mentoring tutor and was not what Z wanted. An email from the tutor also noted that what Z needed was academic tutoring. It is my understanding that academic tutoring for 1.5 hours per day began on 17 November. In January 2024, Z started at the alternative provider for three days and continued with two days tutoring.

Analysis

24. This complaint concerns education provision between February and December 2023. The complainants argue the Council failed to provide a suitable full-time education during this period.
25. Z moved to a part-time timetable in February 2023 because his anxiety prevented him from attending full time. I am satisfied this reduction was agreed between the school and the complainants and that Z’s social worker was also in agreement. There was an available full-time education but Z could not manage this. I find no fault by the Council in respect of the decision to move Z to a part- time timetable.
26. After a permanent exclusion, the Council has a duty to provide an alternative education placement within six school days. In this case Z was given two permanent exclusions. After the first permanent exclusion on 19 April, a placement was agreed by the school which started on 28 April. This appears to be just outside the timescale of six school days and so while fault, I am not persuaded it caused a significant injustice.
27. However, when that placement ended in July, Z was again the subject of a permanent exclusion and again the Council had a duty to provide education within six days. The Council says that all parties, including Ms X and Ms Y agreed he would continue with the online work placement until the end of term. If all parties agreed, then I would not consider it fault that the Council did not offer any alternative education within six days after the second exclusion.
28. However, the Council then did not provide any education at the start of the new school year in September until a tutoring session on 3 October. Notes from the tutor show this was not suitable and was not academic. Further tutoring was not provided until 17 November and was for just 1.5 hours per day. The Council is required to provide full time education that is available and accessible. I am aware that earlier in the year Z had struggled with a full-time education but his attendance at the second school between April and July 2023 was over 62%. It should also be noted that during this period of time he was suspended for five days. The attendance records show that on most occasions he attended school he attended for the full day.
29. I am not persuaded the Council met its duty to provide a full-time education from September to December 2023 or that it properly considered in September 2023 whether Z could manage a full-time education. This is fault. A council can offer less than full-time education if it considers the child cannot cope with full time provision. I have not seen any contemporaneous evidence which shows this was a decision the Council made in this case. Further tutoring was provided from 17 November but this was for only two hours per week.
30. A suitable remedy is proposed below for this loss of provision. The Ombudsman normally recommends a payment of between £900-£2,400 per term for loss of education provision. In coming to a view on the appropriate quantum in this case I have taken account of Z’s SEN, his vulnerability and that some tutoring was provided.
31. During the period the Council failed to provide a suitable education, Z was a looked after child. As a result the Council had a duty to promote Z’s educational achievement and minimise disruption to his education. While it would have been advantageous if the PEP had been completed and the failure to do so may have added to the drift in this case, I am not persuaded this caused a significant injustice to Z over and above that already identified.

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Agreed action

32. To remedy the injustice caused as a result of the fault in this case the Council will, within one month of my final decision, take the flowing action:
• Apologise to Z, Ms X and Ms Y;
• Make a symbolic payment of £500 to recognise the distress and frustration caused;
• Make a payment of £2,000, to be used for the benefit of Z, to recognise the loss of one term of full time suitable education; and
• The Council should remind staff, either by training or briefing note, of the lessons learned from this case including the need to take action within six days following a permanent exclusion and to provide full-time alternative education when a child cannot attend school.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman