Summary: Mrs X complains the Council did not provide her child with suitable alternative provision. She says this impacted her child’s education and wellbeing. We find the Council at fault which caused injustice. The Council has agreed to apologise and make payments to Mrs X and her child.

The complaint

1. Mrs X complains about the Council’s handling of her child, B’s education. Specifically she complains:
1. B was wrongly permanently excluded from school; and
2. the Council did not provide B with suitable alternative provision afterwards.
2. Mrs X says this left B without education which caused them to feel isolated, impacted their mental health, and limited their qualifications. Mrs X also says it has caused avoidable and unnecessary distress to the wider family.

Back to top

The Ombudsman’s role and powers

3. 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)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. 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)

Back to top

What I have and have not investigated

7. Mrs X complains B was permanently excluded from school in April 2023. Mrs X complained to us in August 2024. As I have said above, we cannot investigate late complaints unless there are good reasons for us to do so.
8. In this case, I have decided there are no good reasons to exercise our discretion and look back further than August 2023. I have therefore only considered the Council's actions from August 2023 onwards because this is 12 months before Mrs X brought her complaint to us.
9. Therefore, I have not considered part a of the complaint.
10. I have only considered part b of the complaint from August 2023.

Back to top

How I considered this complaint

11. I considered the information and documents provided by Mrs X and the Council. Mrs X and the Council had an opportunity to comment on a draft of this decision. I have considered all comments received before making this final decision.
12. I considered the Ombudsman’s published guidance on remedies. I also considered the relevant statutory guidance, as set out below.
13. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

What should have happened

14. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
15. 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.

What happened

Alternative provision (part b of the complaint)

16. B has several health needs and an EHC Plan.
17. Prior to August 2023, B was permanently excluded from school and the Council provided alternative provision.
18. In early September the Council issued B’s first EHC Plan. The Plan said all staff associated with B will be trained in the impact their diagnosis has on their learning and emotional dysregulation. It also said they should be made aware of B’s emotional triggers.
19. From late September 2023 the Council provided B with 15 hours of tuition at home and one session of mentoring per week.
20. In late October, the Council increased the hours of alternative provision. It reduced B’s hours of home tuition to 10 hours and added 15 hours of mentoring for B per week.
21. In January 2024, Mrs X told the Council she was unhappy with B’s alternative provision.
22. In early February, the Council held an early annual review of B’s EHC Plan. In mid-February, the Council issued an amended final EHC Plan which named a special school as B’s placement. B started at the school full time.

Analysis

Alternative provision (part b of the complaint)

23. The Council arranged alternative provision for B from late September 2023. The school term started on 1 September 2023. This means B had no education for over three weeks. This is fault which caused injustice.
24. There is no definitive number of hours required for alternative provision to be equivalent to a full-time education. It is accepted that fewer hours of one-to-one provision in comparison to group tuition is appropriate, given the intensity of the learning. In late September, the Council provided B with 15 hours of one-to-one tuition. Shortly afterwards it reduced the amount of one-to-one tuition to 10 hours per week when B’s engagement decreased and introduced 15 hours of mentoring per week totalling 25 hours of alternative provision per week. The Council considered its alternative provision for B to be equivalent to a full-time education which met B’s age, ability and aptitude. I find no fault with the Council’s decision making in the amount of alternative provision it provided to B from late September 2023 to February 2024, which was structured around B’s ability to engage with the provision.
25. The Council shared a copy of B’s EHC Plan with the home tuition provider. It also spoke to the mentoring provider about B’s needs. I am satisfied the Council took appropriate steps to ensure the alternative provision met the requirements set out in B’s EHC Plan.

Back to top

Agreed action

26. Within four weeks of this final decision, the Council has agreed to:
1. provide a written apology to B for its three week delay providing alternative provision in September 2023 and the impact this had on their education and wellbeing.
2. provide a written apology to Mrs X for the unnecessary and avoidable distress and uncertainty caused to her by its three week delay providing B with alternative provision in September 2023.
3. make a payment of £340 to B to recognise the impact of over three weeks of missed provision on their education and wellbeing. In arriving at this figure, I considered our published guidance on remedies and B’s individual circumstances. I consider this amount is proportionate and appropriate to the level of injustice caused.
4. make a payment of £100 to Mrs X to recognise the unnecessary and avoidable distress and uncertainty caused by its three week delay providing B with alternative provision in September 2023.
27. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
28. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

29. I have completed my investigation. I find the Council at fault which caused injustice. The Council has agreed to apologise and make payments to Mrs X and B.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman