Summary: Miss X complained the Council failed to provide adequate education for her child, Y, while excluded from school. We find the Council at fault resulting in a loss of educational provision for Y. We recommend the Council apologises and makes a payment to Miss X.

The complaint

1. Miss X complained the Council failed to provide her son, Y with adequate education while excluded from school.
2. She says the family has been physically and emotionally drained.
3. She wants the Council to provide Y with full time education.

Back to top

The Ombudsman’s role and powers

4. 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)
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. 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

How I considered this complaint

7. I spoke with Miss X and considered the information she provided.
8. Written enquiries of the Council were made. I considered its response along with relevant law and guidance.
9. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and guidance

11. 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.
12. 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)

Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England

13. This states that for permanent exclusions, the local authority must arrange suitable full-time education for the pupil to begin from the 6th school day after the first day the permanent exclusion took place.

The Council’s Fair Access Protocol (FAP)

14. The School Admissions Code (SAC), September 2021, paragraph 3.14 states that each local authority must have a FAP to ensure that unplaced and vulnerable children, and those who are having difficulty in securing a school place in-year, are allocated a school place as quickly as possible.
15. Paragraphs 5.1 to 5.5 of the Council’s FAP sets out procedures for pupils who have been permanently excluded. They state from Day 6 of an exclusion, the responsibility to provide an education falls to the Local Authority. The Council will make provision to comply with Day 6 requirements, and pupils in receipt of this will be presented at In-Year Fair Access Panel (IYFAP) after the School Governors’ Disciplinary Committee meeting has been held to decide whether to uphold the exclusion.

What happened

16. In June 2023, Y was permanently excluded from his school. Later that month, the Council referred Y to the Alternative Tuition Service (ATS) for alternative educational provision.
17. In July 2023, the School Governors’ Disciplinary Committee reviewed Y’s exclusion and upheld the decision to permanently exclude him.
18. From the following day, Y started to receive two 45-minute, one-to-one lessons per week.
19. Later that week, Y was provided with access to an online learning platform with resources for maths and English. Miss X contacted the Council, asking for extra work for Y. A range of lessons were made available, and she was advised these would only appear weekly.
20. Later in July, the IYFAP deferred Y’s case. Due to the nature of Y’s exclusion, the panel requested for intervention to be considered to support Y before reintegration into school.
21. In September, Y was assigned to two group lessons per week. However, Miss X asked the Council to cancel these because Y did not feel ready to attend.
22. The following month, the IYFAP deferred Y’s case again while waiting to confirm whether a Pupil Referral Unit (PRU) could offer support.
23. In November, the PRU confirmed that Y could start with it from January 2024, alongside a school to be named by the next IYFAP meeting, to support Y’s reintegration into school.
24. In December, the IYFAP named a school for Y, but in January 2024, the school refused to admit him due to his lack of engagement with the alternative provisions offered.
25. In February, Miss X tried to contact the Council to discuss Y’s alternative provision. She raised concern about Y’s future education and said she felt ignored. She also complained to her local MP, before complaining to the Council again in March.
26. In April, the Council responded to Miss Y’s complaint. It acknowledged the delays in getting Y back into school, explaining that this needed to involve other services and professionals. It admitted that Miss X had regularly contacted it for updates and said it has reflected on its communication and will improve its ways of working. The Council explained that, due to delays in finding a school place, it had arranged extra learning for Y, though much of this was online due to the county being rural.
27. The same month, Y began attending Setting 1, an environmental education charity, one day per week.
28. In June, Y started attending Setting 2, a face-to-face provision for six hours a week, across two days.
29. In July, Y stopped attending Setting 1 following a house move, as it was now too far away.

My findings

30. The Council has confirmed Y’s full-time education offer consisted of 1.5 hours of one-to-one tutoring, 2 hours of group lessons, and access to an online learning platform each week. Although there is no set definition for full-time education, it is generally considered to be between 22 and 25 hours per week, depending on the child’s age. However, if a Council is arranging one-to-one tuition, fewer hours may be suitable, given the increased intensity of learning. The law also allows councils to view one-to-one provision as worth more than provision delivered to groups.
31. In my view, the alternative provision provided to Y from June 2023 to April 2024, when he began attending Setting 1, was insufficient. This is fault and resulted in a loss of educational provision. My reasons for this are:
• The provision provided fell significantly short of what is typically expected.
• The Council has failed to clearly explain or provide evidence to support how it considered Y’s educational provision was equivalent to full time and tailored to his needs.
• Records show that Miss X was unhappy with the provision, raising that it was insufficient and asking for extra work. The Council failed to consider whether the provision could be increased at that time.
• Although extra provision was later offered, this came after Y had been out of school for ten months.
32. The provision provided to Y was also delayed. The Council should have arranged suitable full-time education for Y starting from the 6th school day after the first day of exclusion, however, Y’s one-to-one lessons did not start for a further 11 school days. Additionally, the full package of support was not in place until mid-September, a delay of 37 school days. This is fault.
33. Where fault results in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2400 per term to acknowledge the impact of that loss. In Y’s case, we have calculated the remedy at £1800 per term. This takes into account Y’s age, the impact on his education and development, the provision arranged by the Council, and Y’s engagement with it.

Back to top

Agreed action

34. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to: 
• apologise to Miss X in line with our guidance on Making an effective apology; and
• pay Miss X £4500 as a remedy for Z’s benefit, in recognition of the loss of educational support for approximately two and a half terms.
35. Within three months of the date of my final decision, the Council has agreed to use this case as a case study in a relevant training session for officers to ensure they understand their duty to arrange suitable, full-time equivalent education, tailored to the specific needs and circumstances of each child requiring alternative education arranged by the Council.
36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

37. I have completed my investigation. There was fault by the Council. The Council has agreed to the above action as a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman