Summary: Mr X complained the Council failed to provide his son with an Education Health and Care Plan (EHC Plan) within statutory timescales and failed to provide alternative education while he was excluded. We found there was delay in producing the EHC Plan. We found the Council had made an offer of alternative education but it did not properly determine if this was suitable as it did not have sufficient regard to Y’s Special Educational Needs. We recommended an apology, a payment and action to clarify procedures for its officers.

The complaint

1. Mr X complains the Council failed to provide his son, Y, with an Education Health and Care Plan within the statutory timescales.
2. Mr X also complains that the Council failed to provide alternative education for Y following his permanent exclusion in early 2023 and failed to take account of Y’s SEN when making a proposal of a temporary placement in a mainstream school. Mr X complained that the Council wrongly suggested the family had rejected an offer of education for Y. He says this was not the case.
3. Y was without a suitable education as a result of this and the situation caused difficulty and distress to the family.

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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. 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)
6. 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.

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What I have and have not investigated

7. We have considered the events of Mr X’s complaint from February 2023 when Y was excluded from school. The Council issued an Education Health and Care Plan for Y in December 2023 at around the time Mr X complained to us. We have considered the events of the complaint up to December 2023 when the complaint was brought to us.

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How I considered this complaint

8. I spoke to Mr X and considered the information he provided. I asked the Council for information and considered its response to the complaint.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education Act 1996

10. 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. 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

11. Paragraph 30 of Alternative Provision sets out guidance that councils must have regard to. It describes what the common aims of good alternative provision should be. These include proper identification and meeting of the specific personal, social and academic needs of pupils are in order to help them to overcome any barriers to attainment.

Education Health and Care Plan (EHC Plan) Needs Assessments

12. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says:
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks.
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable.
• If the council goes on to carry out an assessment, it must decide whether to issue an EHC Plan or refuse to issue a Plan within 16 weeks.
• If the council goes on to issue an EHC Plan, the whole process from the point when an assessment is requested until the final EHC Plan is issued must take no more than 20 weeks (unless certain specific circumstances apply).

DFE Guidance: Providing remote education: guidance for schools

13. This document sets out guidance for schools about providing remote education when it is not possible for a pupil to attend school. The guidance states that remote education should only ever be considered as a last resort where a decision has already been made that attendance at school is not possible, but pupils are able to continue learning.

Leeds City Council Area Inclusion Partnerships

14. Leeds City Council agreed partnerships with groups of schools in the city to act as ‘Area Inclusion Partnerships’ (AIPs). The Council delegates its statutory duty to secure alternative educational provision to AIPs. The AIP acts to ensure that any pupil who is permanently excluded receives an education from the 6th day of their exclusion, in line with the Council’s legal duties.

Equality Act

15. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
16. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
17. The ‘protected characteristics’ referred to in the Act are age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

What Happened

18. The information in this statement provides an overview of the key events most relevant to the complaint. It is not intended to set out everything that happened.

Y’s exclusion and its offer of alternative education

19. Y was excluded from a school outside the Council’s area in mid-February 2023. The school notified the Council the same day. To comply with the Council’s statutory duties, there was a requirement to provide suitable education within six days of the exclusion, by 24 February. This allowed for the half-term break between 13 and 17 February.
20. A teacher, who was part of the Area Inclusion Partnership (AIP) (Teacher Z) met Mr and Mrs X to discuss a temporary placement for Y. Mr X was told a placement would be offered. Mr X says that in the meeting he was only briefly able to discuss concerns regarding Y’s SEN and the impact of them. Teacher Z stated, at the meeting, Mr and Mrs X expressed a preference for a special school placement. He explained that this would only be available if Y had an Education Health and Care Plan, so the 6th day provision was likely to be via a mainstream school.
21. Teacher Z telephoned Mr X on 23 February after allowing some time for them to reflect. Teacher Z offered 6th day provision at his school (School One) to start the following day. This was to be in School One’s ‘Isolation Room’ until a permanent school place was secured.
22. School One’s Behaviour Management Policy states that its Isolation Room is it is used as a final consequence prior to exclusion. The policy states the rules are rigid. There is no talking, no leaving your seat or turning around, no being off task and no heads resting on desks. Warnings for breaches of the rules result in extended isolation time or being sent home.
23. The school’s policy states that if a child has Special Educational Needs or has need of reasonable adjustments under disability legislation, this will be considered. It states this will often just result in the extension of the flexibility and individual approach already taken with pupils.
24. The Council told us that, generally, upon exclusion, information would be available to the AIP staff to set out a child’s needs through information sharing arrangements between Leeds schools. When a child is referred from outside the Council’s area, the Council/AIP makes every effort to seek all necessary information about them. In Y’s case, the information the Council received appears to have been limited. It says it was aware Y was a child with SEND support needs.
25. Mr X says when speaking with Teacher Z on the phone he began to explain some concerns about safeguarding his son, school staff and other pupils. This was because Mr X was concerned to ensure the school understood the background to Y’s exclusion and significant recent events and risks. The call ended abruptly without these issues being discussed.
26. Mr X sent an email following the call seeking contact to discuss the safeguarding issues he had. He received no response.
27. In the early hours of Friday Mr X sent an email to Teacher Z explaining they had a very difficult night with Y and he could not attend school that day. He sought an opportunity to address the safeguarding and risk issues that had not yet been discussed.
28. Teacher Z accepted Y was ill, and stated the place in the Isolation Room stood. He stated he would work with secondary schools in the meantime to secure a place for Y and as soon as he had details of the placement these would be passed on. He provisionally re-organised transport for Y to start the following Monday but did not address Mr X’s wish to speak about risk and safeguarding.
29. This prompted a complaint from Mr X. Mr X was unhappy with the arrangements because he did not consider safeguarding and risk had been addressed sufficiently.
30. On 3 March 2023 the AIP were provided with a copy of a risk assessment completed by Y’s old school. This indicated there were significant risks to both Y and others as a result of his past behaviour. Y had also been involved with criminality and was at risk of exploitation.
31. Mr X began an appeal against Y’s exclusion. In early March Teacher Z stated that, as a result of the appeal, Y would remain on the roll at his original school. It seems he understood, as a result, that the original school should therefore be providing an education. The Council clarified to Teacher Z that this was not correct and the AIP (on its behalf) had responsibility to provide Y's education during the appeal process.
32. The Council went on to propose online learning for Y. It was not clear how it determined this would be appropriate. Mr X considered Y would not be able to engage with this.
33. On 27 March 2023 a second school (School Two) made contact with Mr X to discuss the option of Y joining the school roll on a permanent basis. Mr X was concerned by this contact, because he did not understand why that school was being considered. It transpired that the process by which a permanent school placement should be chosen (and the process giving Mr X an opportunity to apply for given schools) had not been explained to him.
34. In May 2023, while the appeal process was still ongoing Teacher Z appeared to still consider that Y’s Original school should be providing education. The Council provided clarification of its duties. However, there appears to have been continued confusion over this point while the appeal was ongoing. For the sake of clarity, the Council confirmed that it was not aware that any education was provided to Y by his original school following his exclusion.

Education Health and Care Plan Timescales

35. On 1 March 2023 and following Y’s permanent exclusion from school, Mr X made a request for an Education Health and Care Plan needs assessment.
36. On 5 April 2023 the Council agreed to carry out a needs assessment and requested reports from various services. On 4 August 2023 the Council received a report from an Educational Psychologist. The Educational Psychologist sent further information to the Council on 18 August following a discussion with Mr X.
37. On 28 November 2023 the Council agreed to issue an EHC Plan. It sent a draft EHC Plan to Mr and Mrs X that day.
38. The Council issued consultations to six schools in December 2023 before issuing a final plan on 22 December 2023 naming a type of school setting for Y, but not naming a specific school.
39. I note in response to the Complaint the Council offered Mr X £300 to reflect the delay in part of the EHC Plan process (the delay in receiving an Educational Psychologist’s report). It also offered an additional £100 to reflect there had been delay in following up actions it promised to take in response to the first stage of the complaint process.

Was there fault by the Council

40. I found that the Council did make an offer of 6th day provision to Mr X for Y. This is evidenced by contacts between Teacher Z and Mr X. However, the law requires that a suitable education is provided. It is not clear if the placement was suitable for him. I say this because on balance, I found that there was insufficient consideration and engagement on the issue of Y’s SEN. In its response to our enquiries the Council explained that the AIP had limited information when it offered the Isolation Room at School One, yet, when Mr X attempted to explain the background and raise Y’s SEN prior to agreeing to the placement, Teacher Z did not engage further and communication was poor. It was not clear what, if any, adjustments may have been be possible to ensure the placement worked and was suitable. This ultimately led to a lack of trust and the placement not being taken up. I note the Council acknowledged and apologised for not having taken further steps to assure Mr X of the suitability of the offer when responding to the complaint.
41. Subsequently, an offer of Online or Remote Learning was made. Guidance regarding exclusions notes that attending school can be a protective factor for children who have a social worker or are looked after children. When they are not in school they can be more vulnerable to harm. Government guidance states remote learning is only appropriate as last resort and where a decision has already been made that it is not possible for a pupil to attend school. The suitability of online learning in Y’s circumstances does not appear to have been considered properly. There is also no indication that it was not possible for Y to attend school. Rather, Y was not in a school because there had been a failure to engage and communicate fully with Mr and Mrs X about how Y’s SEN would be managed in the school environment it proposed.
42. I acknowledge that Y’s case, finding a suitable school was complex. This was because, at the time of his exclusion he had acknowledged SEN, but no EHC Plan. This limited the available options for school placements while the Education Health and Care Plan process was ongoing. There is evidence this limitation was explained to Mr and Mrs X by Teacher Z at the outset. However, the Council accepted that communication was also lacking in relation to the process for finding a more permanent school placement. The Council stated it would have expected the AIP to explain the usual process for seeking a new, permanent school placement via a common preference form. It noted it was not clear if this advice was given to Mr X. Not being clear on the process unfortunately led to confusion about why School Two had contacted Mr X stating they were considering providing a permanent placement for Y. This caused further difficulty.
43. Regrettably, there was also significant delay in assessing Y for, and completing his EHC plan. The law requires councils to complete assessments within 20 weeks. In Y’s case, the process took over twice as long, with the final plan being issued on 22 December 2023. This led to a prolonged period, during which Y’s needs were not fully understood. This only exacerbated the other issues around Y’s school place.
44. I note that Mr and Mrs X sought a specialist placement for Y, rather than a mainstream school. So, it is not absolutely clear that, even with better communication, mainstream schools offered as 6th day provision would have been accepted. However, on the balance of probabilities, I consider that, had the SEN issues been properly addressed and had communication been better, it is more likely than not that Y would have been able to attend alternative provision while awaiting a long term school placement through the EHC Plan process. As a result, I have found that a remedy is appropriate to reflect the lack of education in the period between February 2023 and December 2023.
45. The Council’s duties under the Equality Act are engaged in the events of this complaint. The Council was aware that Y had Special Education needs, but as we set out above, insufficient effort was made to establish what they were and what (if any) adjustments were needed to ensure the 6th day provision offered to Y would be suitable. The failure to recognise its duties under the Equality Act as part of this process was also fault.

Agreed action

46. Within four weeks of my final decision the Council agreed to:
47. Send a written apology to Mr X and Mrs X for the fault we have identified. The apology should adhere to our guidance on making effective apologies. This can be found on our website, within our Guidance on Remedy here.
48. Make a payment of £2400 to Mr and Mrs X to recognise the loss of education for Y between February and December 2023.
49. Make a payment of £300 to Mr and Mrs X to recognise the distress caused by the failings we have identified.
50. Circulate a briefing note to all relevant staff in its Area Inclusion Partnership to:
• Clarify the councils legal duty to provide education following a permanent exclusion, and to confirm that the council retains this duty to provide an education even if an exclusion is appealed.
• Set out what advice and information needs to be given to parents about finding a new permanent school place following an exclusion.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman