Summary: Mr X complained the Council failed to ensure the provision in his child's Education, Health and Care Plan was provided and delayed providing suitable education following his child's permanent exclusion from school. Mr X said his child suffered significant distress and he suffered uncertainty about whether the exclusion was avoidable and if suitable alternative provision could have been provided sooner. We have found fault but consider the agreed action of an apology and symbolic payment provides a suitable remedy.

The complaint

1. The complainant, Mr X, complains the Council failed to ensure the provision in his child's Education, Health and Care Plan was provided and delayed providing suitable education following his child's permanent exclusion from school.
2. Mr X says his child suffered significant distress and he suffered uncertainty about whether his child's permanent exclusion was avoidable and if suitable alternative provision could have been provided sooner.

Back to top

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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407) 
5. 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.
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
10. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
11. We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)  
12. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699 (‘Tribunal Procedure Rules’) give the tribunal the power to do the following: 

• Regulate its own procedure. The Tribunal Procedure Rules give the tribunal extensive case management powers. 
• Take ‘such action as it considers just’ if a party fails to comply with a requirement in the Tribunal Procedure Rules, a Practice Direction or a direction by the tribunal. 
• Make an order for costs if it considers a party has acted unreasonably in bringing, defending or conducting proceedings. 
• Require the council’s response to the appeal to include the views of the child or the reasons why the council has not asked for those views. 

13. Some parents will incur significant legal and expert fees during the appeal process. We cannot investigate this as the tribunal has powers to consider and/or award costs as part of the appeal. (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, Rule 10) 

14. We can look at matters that do not have a right of appeal, are not connected to an appeal, or are not a consequence of an appeal. For example: 

• where there is support in an EHC Plan that is not being delivered to the child or young person and we decide the cause is not connected to the appeal; and
• alternative education when the reason the child or young person is not attending education is, in our view, not connected to or is not a consequence of a matter that was, or could have been, part of an appeal to the tribunal.  

15. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
16. 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)

Back to top

What I have and have not investigated

17. I have investigated Mr X’s complaint about the Council’s failure to ensure the provision in his child's Education, Health and Care Plan was provided and that it delayed providing suitable education following his child's permanent exclusion from school.
18. For the reasons set out above at paragraphs 6 to 12 I have not investigated any decisions which included a right of appeal to the SEND Tribunal or any matters which were a consequence of a decision which had a right of appeal. This includes the Council’s conduct in the run up to and at the Tribunal; Mr X’s complaints about information the Council provided about the ability of a school to meet his child’s needs based on a faulty consultation process; the OT report relied on by the Council; and not being told he could source a private report.
19. I have not investigated Mr X’s complaint about the school’s actions in relation to his child’s suspensions and subsequent permanent exclusion including being told he faced prosecution if he did not attend despite the school advising him it could not meet his child’s needs (please see paragraph 15 above).
20. I have not investigated a new issue Mr X raised about delays in securing OT provision following the outcome of his appeal to the Tribunal. Mr X would need to make a complaint about this to the Council in the first instance and allow it an opportunity to respond before making a new complaint to the Ombudsman if he remained unhappy with the outcome.

Back to top

How I considered this complaint

21. I read the papers provided by Mr X and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr X and the Council and provided an opportunity for comment.
22. 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

Background and legislation

Special Educational Needs

23. 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. 
24. 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). 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)  
25. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

26. Section 61 of the Children and Families Act 2014 provides for local authorities to consent to education being delivered elsewhere such as in the home for those children for whom education in any school setting would be inappropriate. This is known as Education otherwise than at school (EOTAS).

Alternative provision

27. 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. We refer to this as section 19 or alternative education provision.
28. 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))
29. 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)
30. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 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)
31. The Council provides alternative provision through several providers including Access to Education (A2E). This provides a flexible, short-term, education service for children who cannot attend school through exceptional circumstances which could include medical reasons and permanent exclusions.

Attendance

32. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence they can receive a fine or imprisonment of up to three months.

School exclusions

33. 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.
34. 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.
35. Where parents dispute the decision of a governing board not to reinstate a permanently excluded pupil, they can ask for this decision to be reviewed by an independent review panel.
36. An independent review panel does not have the power to direct a governing board to reinstate an excluded pupil. It may direct a governing board to reconsider its decision if the panel decides a governing board’s decision is flawed when considered in the light of the principles used for judicial review. This is a very high threshold.
37. The Ombudsman investigates complaints against the independent review panel. We do not decide whether a pupil should have been excluded or should be reinstated. Our role is to check the panel administered the appeal properly. We cannot question panel decisions taken without fault, no matter how strongly the parent disagrees.

What happened

38. The following is a summary of key events. It does not include everything that happened.
39. Mr X received a final EHCP for his child (B) in May 2022. This named B’s placement as his current mainstream primary school. The EHCP provision included two occupational therapist (OT) visits to the school each term. Much of the other provision focussed on classroom strategies and interventions to manage behaviour. The EHCP noted there had been fixed terms exclusions and B was at risk of permanent exclusion. B’s parents appealed the EHCP.
40. It was agreed following discussions with B’s parents and professionals to convene an EHCP review meeting to consider the provision arrangements. It was noted there had been a significant change in B’s needs. The outcome of a review meeting in October was that B’s current presentation of need could not be met in mainstream school and specialist provision should be sought.
41. The school wrote to Mr X to confirm B was permanently excluded from 7 November. Mr X did not appeal to an Independent Panel about the exclusion as they did not want B to return to an unsuitable placement. In these circumstances, the Ombudsman cannot investigate the school’s decision.
42. The Council was advised of B’s exclusion. The Council made a referral to Access to Education (A2E) to provide support until an appropriate setting was found. However, following a meeting between A2E and Mr X it was decided the available provision was not appropriate. The Council contacted other providers of alternative provision in December, but a particular tutoring company could not meet Mr X until January 2023. The provision started in February which consisted of three hours on four days each week. The tutoring service provided feedback to the Council in March to suggest three hours each day for four days each week may be too much for B.
43. Following Mr X’s EHCP appeal, the Council received the Tribunal Order in June which set out Education Otherwise Than in School (EOTAS).

My consideration

44. B did not receive the OT provision set out in his May 2022 EHCP which was for a twice termly visit by an OT.
45. When a pupil of compulsory school age is unable to attend school for physical or mental health reasons, or otherwise, it is accepted section 19 of the Education Act may apply as in this case. However, where the pupil also has an EHC Plan we also expect councils to try and secure as much Section F provision as is possible in the home or alternative provision setting under its section 42 duties.
46. The Council should have ensured the OT provision was available from the start of B’s EHCP in May 2022. The failure to do so is fault. I have noted B was permanently excluded part-way through the subsequent Autumn term. It is too speculative to say B’s permanent exclusion could have been avoided but for this fault given the other factors involved. However, I am satisfied Mr X will have suffered some uncertainty about whether the OT provision may have helped avoid B’s permanent exclusion.
47. B was permanently excluded on 7 November 2022, but alternative provision was not put in place until February 2023. The Council should have arranged suitable education for B from the sixth day after the exclusion.
48. I have noted the efforts of the Council to arrange suitable education during this period. On balance, I consider there was service failure by the Council in failing to ensure suitable alternative education was provided for B for the period November 2022 to February 2023. There remains a degree of uncertainty around what education provision B would have been able to engage with and access during this period. However, I am satisfied B will have missed the opportunity of some education provision during this period and Mr X will have been caused avoidable uncertainty about this.

Back to top

Agreed action

49. The Council will take the following to provide a suitable remedy within one month of my final decision:
1. write to Mr X to apologise for the failure to ensure the OT provision in B’s May 2022 EHCP was provided and for the delay in arranging alternative provision for B for the period November 2022 to February 2023; and
2. provide a symbolic payment to Mr X of £1,000 to recognise both the impact of the lost provision and the avoidable uncertainty.
50. 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.
51. We note the Council has already provided Section 19 training to its staff, and there have been other recent service improvements recommended by the Ombudsman. I have therefore not made any further recommendations as we will monitor the impact of these changes through our complaints.
52. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

53. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman