Summary: Mr X complained about the support the Council provided after his son, Y, was excluded from school. There was fault in how the Council arranged alternative education for Y, failed to consider reviewing Y’s Education, Health and Care plan and delays in arranging a new school place. The Council also communicated poorly with Mr X. This caused Y to not receive a full-time education for several months and significant avoidable distress to Mr X. The Council agreed to apologise, pay Mr X a financial remedy and review its practices.

The complaint

1. Mr X complains about the action the Council took after his son, Y, was excluded from school in November 2021. He says the Council:
1. failed to arrange a full-time education and other provision in Y’s Education Health and Care (EHC) plan while he was out of school;
2. failed to review Y’s EHC plan after his school placement collapsed;
3. took too long to arrange, and failed to consult him about, a new school place for Y; and
4. failed to tell him what was happening, or reply to his emails.
2. As a result, Mr X says Y missed out on education for several months, causing significant distress to Y and his family and his return to a full-time school place was delayed. He wants the Council to apologise and pay his family compensation.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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. 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)

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How I considered this complaint

10. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
12. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Education health and care plans

13. A child with special educational needs 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. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
14. Councils must review EHC plans at least every 12 months and can review EHC plans at any time. The procedure for reviewing and amending EHC plans is set out in legislation and government guidance.
• Within four weeks of a review meeting, a council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC plan. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176)
• Where a council proposes to amend an EHC plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194)
• The Special Educational Needs and Disability Code states if a council decides to amend the plan, it should start the process of amendment “without delay”. (SEN Code paragraph 9.176)
• Following comments from the child’s parent or the young person, if the council decides to continue to make amendments, it must issue the amended EHC plan as soon as practicable and within eight weeks of the date it sent the EHC plan and proposed amendments to the parents. (Section 22(3) SEND Regulations 2014 and SEN Code paragraph 9.196)
• Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC plan. The right of appeal is only engaged when the final amended plan is issued.
15. Councils can also amend EHC plans, at any time, without carrying out a review. If a council chooses to do this, it should still issue a draft plan and invite comments as if a review had been carried out.
16. When a council sends a draft plan to a child’s parent or young person it must give them at least 15 days, beginning with the day on which the draft plan was served, in which to:
• make representations about the content of the draft plan, and to ask that a particular school or other institution be named in the plan; and
• require the council to arrange a meeting between them and an officer of the council at which the draft plan can be discussed. (Special Educational Needs and Disability Regulations 2014)

Alternative education provision

17. 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.
18. Statutory guidance (Alternative Provision – Department for Education) makes it clear that while ‘full-time’ is not defined in law, pupils in alternative provision should receive the same amount of education as they would receive in a maintained school. Full-time can be made up of two or more part-time provisions.
19. Full-time education is not defined but is commonly held to be equivalent to between 22 and 25 hours a week, depending on the age of the child. The law also allows councils to view one-to-one provision as worth more than provision delivered to groups (such as in a classroom setting).

What happened

20. Mr X’s son, Y, has special educational needs (SEN) and has had an Education Health and Care plan issued by the Council since October 2019. Until November 2021, Y attended School B, a mainstream secondary school.
21. In late November 2021, School B permanently excluded Y. School B told the Council about the exclusion on 29 November 2021 and the Council referred Y to its alternative education provider, School H, the following day.
22. School H had some contact with Mr X during December 2021, during which time it discussed Y’s needs with Mr X and completed a risk assessment. School H arranged six hours (2 hours a day, three days a week) one-to-one tuition via video chat. The tuition started on 10 January 2022.
23. Evidence from the Council shows several of the sessions during the first weeks ended early or were disrupted. This was recorded as either being due to technical difficulties with the connection or Y struggling to fully engage and asking to end the session early. In these cases the tutor arranged for Y to receive work to complete by himself and, on most occasions, Y completed and returned this work. In later sessions the technical problems were mostly resolved and Y’s ability to complete the full sessions improved.
24. There were also some periods between January and April 2022 during which sessions were cancelled either due to illness or at Mr X’s request when he asked for a change of tutor. In total, this amounted to around two weeks of the planned tuition.
25. In early March 2022, the Council consulted with three special schools to find a new school place for Y. The Council emailed Mr X, told him which schools it was planning to consult and asked Mr X if he had a school he would like Y to attend.
26. Mr X says that, because the Council told him his preferred schools were already fully, he asked the Council about arranging home tuition for Y instead. The Council believed Mr X was asking about choosing to educate Y at home and it provided Mr X with information about this option.
27. On 21 April 2022 the Council issued an amended EHC plan naming one of the schools it consulted, School C, as Y’s educational placement on, at first, an outreach basis. School C developed a plan of part-time at home tuition with the aim of reintegrating Y into a school environment.
28. Mr X complained to the Council on the same day it issued the amended EHC plan about both the education Y had received and the approach being taken by School C.
29. The Council responded to Mr X’s complaint around five weeks later. The Council apologised for poor communication from the Council’s SEN team, including failing to reply to some of Mr X’s emails.
30. Mr X asked the Council to consider his complaint at stage two of its complaints procedure, which it did in early June 2022. The Council repeated its apology for the poor communication and for some delays with arranging alternative education.
31. Mr X was not satisfied with the Council’s response, so he complained to the Ombudsman, also in early July 2022.

My findings

Alternative education provision

32. Councils must arrange alternative education provision for excluded pupils from the sixth day following the exclusion. Since the Council was first aware Y had been excluded on 29 November 2021, we would expect the Council to have arranged alternative education from 7 December 2021. However, the alternative education only started on 10 January 2021, around a month late. This delay was fault which caused Y to miss out on education during that time.
33. The law required alternative education to be full-time unless a Council decides that full-time education is not in a child’s interest. The Council said the education it arranged was what Y was assessed as having capacity for at the time. However, it has not provided any details of how it made this decision or that it decided a full-time education was not in Y’s interest. Therefore, I am satisfied that the Council had a responsibility to arrange a full-time education for Y.
34. The law allows councils to view one-to-one education as worth more provision than that delivered to groups, such as in a classroom setting. The Council’s view is that one hour of one-to-one provision is equivalent to three hours of ‘typical’ education. Therefore, by the Council’s calculation it arranged the equivalent of 18 hours a week education for Y between January and April 2022. Since full-time education is typically regarded as between 22 and 25 hours a week, there was still a shortfall of between four and seven hours a week. I am satisfied that shortfall was fault which meant that Y went without a suitable education between January and April 2022.
35. The evidence shows the Council attempted to resolve the technical issues with the online tuition, including replacing the laptop it provided as part of the tuition. Where sessions could not go ahead due to technical issues, tutors provided individual work for Y to complete which, in most cases, he did. I am satisfied the Council made reasonable efforts to resolve these technical issues.
36. Similarly, the evidence shows that some of the sessions were shorter than intended. However, this was based on Y’s ability to engage with some of the sessions and the tutor in each case offered an alternative based on their professional experience and judgement. The evidence shows that Y’s ability to engage improved towards the end of the alternative education which suggests this approach was successful. Therefore, I am satisfied there was no fault with how the Council provided the alternative education that it did.
37. From the point the Council issued an amended EHC plan and arranged for Y to attend School C (including through its outreach programme), the Council’s duty to arrange alternative education came to an end. I appreciate Mr X has concerns about the suitability of School C for Y and School C’s plans for reintegrating Y into a classroom environment. We cannot investigate the Council’s decision to name School C in Y’s EHC plan, since Mr X could appeal about this to the SEND Tribunal. We also cannot investigate the actions of schools including the internal management or the giving of tuition.
38. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss.
39. Considering Y’s age, the content of Y’s EHC plan and the stage of Y’s education, I am satisfied a remedy of £400 a month is suitable for the period between 7 December 2021 and 10 January 2022.
40. After the Council arranged some alternative education provision for Y between 10 January and 21 April 2022, I am satisfied a remedy of £120 a month is suitable to recognise the shortfall between full-time and the education the Council arranged.

Reviewing Y’s EHC plan

41. Councils have the power to review EHC plans at any time where there are reasons to do so. Where a school placement named in an EHC plan permanently breaks down, including in cases of permanent exclusion, we would expect councils to consider whether to hold an early review. There is no evidence the Council considered an early review of Y’s EHC plan after Y was excluded. In its response to my enquiries the Council accepted that it should have considered doing so. I am satisfied the failure to do so was fault.
42. Had the Council carried out an early review, it would have had to seek Mr X’s views about Y’s future education and given him an earlier opportunity to share his views with the Council. I am satisfied that the Council’s failure to consider an early review of Y’s EHC plan caused Mr X avoidable distress and frustration about the future of Y’s education.
43. An early review would also have made the Council subject to the legal timescales for amending Y’s EHC plan. While I cannot say that holding a review would have meant Y had a new school place earlier than he did, I am satisfied there is a remaining uncertainty about what would have happened.
44. The Council should also have arranged an annual review of Y’s EHC plan before May 2022, since this was 12 months since the last review in May 2021. The Council accepted it failed to do this. However, I do not believe this failure caused Y a significant injustice. Around the time the review should have taken place, there were extensive discussions with School C about Y’s needs and his start at School C. This included planning for an annual review within a few months of Y starting at School C.

Arranging a new school place for Y

45. Although the Council was aware Y had been permanently excluded in late November 2021, the Council did not take any steps to arrange a new school place until March 2022. I am not satisfied that the Council’s explanation of pressures on its service at this time provide adequate justification for those delays. Therefore, I am satisfied the delays were fault and that this fault caused Mr X further avoidable distress and frustration. However, Y received some education during this time and I have already address the shortfall in hours.
46. The evidence shows the Council did inform Mr X about the schools it was consulting and that it asked Mr X if he had a preferred school for Y to attend. However, this was after a period of several months of, to Mr X, apparent inaction by the Council and without discussing Y’s future education or school options with Mr X in advance. I have addressed the impact of those delays above.
47. There is no evidence the Council sent Mr X a draft plan or invited his comments when it changed the name of Y’s school. This was fault. However, since the only change was to the school placement and Mr X had the opportunity to both suggest a different school and then to appeal the final plan, I do not consider this caused Mr X or Y an injustice.

Communication and complaints handling

48. In its complaint responses to Mr X, the Council accepted and apologised for its poor communication. I have found this included not seeking Mr X’s views before searching for a new school, along with the Council’s acceptance that its communication following issuing the amended EHC plan was also sporadic.
49. Although the Council has apologised for its poor communication, I am not satisfied that an apology is an adequate remedy given the significant time over which the Council’s communication with Mr X was poor.

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Agreed action

50. Within one month of my final decision the Council will:
• apologise to Mr X for the fault I have found above;
• pay Mr X £820, intended for Y’s educational benefit, to recognise the education Y missed between December 2021 and April 2022; and
• pay Mr X £500 to recognise the avoidable frustration, distress and uncertainty caused by the Council’s failures.
51. Within three months of my final decision the Council will:
• review how it arranges alternative education for permanently excluded pupils to ensure it arranges a full-time education form the sixth day following exclusion unless it decides this is not in a pupil’s interests. Where this is the case, it should ensure it fully records its decision about this and shares the reasons for its decision with parents; and
• review its approach to reviewing EHC plans following the permanent exclusion from schools named in those plans. It should ensure it properly considers whether to review EHC plans when it becomes aware such a school placement has permanently broken down.

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Final decision

52. I have completed my investigation. There was fault in how the Council arranged alternative education for Y, failed to consider reviewing Y’s EHC plan and delays in arranging a new school place. The Council also communicated poorly with Mr X. This caused Y to not receive a full-time education for several months and significant avoidable distress to Mr X. The Council agreed to apologise, pay Mr X a financial remedy and review its practices.

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Investigator's decision on behalf of the Ombudsman