Summary: The Council failed to arrange a suitable full-time education for Ms B’s son, K, when he was unable to attend school. It has agreed to apologise and makes payments to Ms B and K. It has also agreed to make service improvements.

The complaint

1. Ms B complains that the Council has failed to arrange a suitable full-time education for her son, K, since he was forbidden from attending school in September 2023.
2. Ms B says that K has missed out on education and social interaction and the situation has caused her stress and has affected her mental health.

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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 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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
7. 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)
8. This means that if a child or young person is not attending school, and we decide the reason for non-attendance is linked to, or is a consequence of, a parent or young person’s disagreement about the special educational provision or the educational placement in the EHC Plan, we cannot investigate a lack of special educational provision, or alternative educational provision.
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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What I have and have not investigated

10. I have investigated Ms B’s complaint that the Council has failed to arrange a suitable full-time education for K. I have not investigated the school’s decision to not allow K to return to school, or Ms B’s complaint that an annual review meeting was held without her knowledge. This is because we cannot investigate the actions of the school.

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How I considered this complaint

11. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council, the school and the complainant the opportunity to comment on my draft decision.
12. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Education, health and care plans

13. A child or young person with special educational needs (SEN) 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.  
14. There is a right of appeal to the SEND Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified.
15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
16. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 
17. If the council decides not to amend an EHC Plan or decides to cease to maintain it, it must inform the child’s parents or the young person of their right to appeal the decision to the tribunal.

School exclusions and alternative education

18. Telling or forcing a pupil to leave school, or not allowing them to attend school, is a suspension (if temporary) or permanent exclusion (if permanent). Whenever a pupil is made to leave school, or forbidden from attending school, on disciplinary grounds, this must be done in accordance with the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 and with regard to relevant parts of the guidance. (Government guidance ‘Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England’ August 2024)
19. Unofficial exclusions are when a school asks parents to keep a child at home without the child being formally excluded. Even if the parents agree to this, unofficial exclusions are unlawful. Where a council becomes aware of an unofficial exclusion, we would expect it to raise this with the school and point out that the exclusion is unlawful.
20. 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.
21. 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)
22. For permanent exclusions, the council must arrange suitable full-time education for the pupil to begin from the sixth school day after the first day the permanent exclusion took place. Where a pupil has an EHC Plan, the council may need to review the plan or reassess the child’s needs, in consultation with parents, with a view to identifying a new placement. (Government guidance ‘Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England’ August 2024)
23. Schools may direct pupils off-site for education to help improve their behaviour. The focus should remain on ensuring that a child continues to receive a good education on par with their mainstream peers whilst the needs which require intervention are being addressed. Schools should have a plan and processes in place to reintegrate the pupil at the end of the placement when he or she returns to the school. (Statutory guidance ‘Alternative Provision’ January 2013)
24. Any use of alternative provision should be based on an understanding of the support a child or young person needs in order to improve their behaviour, as well as any SEND or health needs. Off-site direction may only be used as a way to improve future behaviour and not as a sanction or punishment for past misconduct. Off-site direction should only be used where in school interventions and/or outreach have been unsuccessful or are deemed inappropriate and should only be used to arrange a temporary stay in alternative provision. (Government guidance ‘Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England’ August 2024)

Background and key events

25. K has special educational needs and an EHC plan. Until September 2023, he attended a specialist school which caters for boys who have significant social, emotional, and mental health (SEMH) needs.
26. In January 2023, when K was 13 years old, he was suspended from the school. The headteacher told Ms B that K was on the verge of being permanently excluded and it was trying to organise a managed move to a more appropriate setting.
27. An urgent annual review was held and the school recommended that changes be made to K’s EHC plan, including a change of placement.
28. A draft amended plan was sent out in February and the final plan was issued in April. It named K’s current school. The Council told Ms B about her right to appeal to the SEND Tribunal if she disagreed with the EHC Plan. Ms B did not appeal.
29. In May, a case was presented to the Council’s Education, Health, and Care plan Governance Board to change K’s placement. The panel did not agree to a change of placement but said that it would consider consulting other SEMH provisions.
30. K was offered a place at another school for children with SEMH needs in August 2023. Ms B said that the school would not be appropriate for K because it could offer nothing more than his current school and because he would benefit from being in a mixed school, rather than a boys school. The Council decided that K should remain at his current school.
31. K continued to attend school until September 2023 when he was suspended for five days. At the end of the five-day suspension, the school refused to allow K to return. The headteacher told Ms B that they did not consider the school was an appropriate setting for K due to the significant health and safety risk K posed to himself and others. It said that it would provide alternative provision until a suitable placement was found.
32. An urgent annual review meeting was held on 20 September. Ms B says that while she attended a meeting that day, she was not aware that it was to review K’s EHC Plan. The school sent the annual review documents to the Council and asked it to amend K’s EHC Plan and name a different school.
33. Ms B complained to the Council in December 2023 that the school was unlawfully refusing to allow K to attend school. She said that he was receiving less than two hours of education and three and a half hours of support each week. She asked that he be provided with full time education until a suitable placement could be found.
34. In the Council’s response, it accepted that K was not receiving sufficient support. It said that it was consulting other schools to secure full time education for K and would also speak to K’s school about arranging more support.
35. The Council consulted 11 schools between October 2023 and February 2024 but none of them offered K a place. In January 2024, the school which had offered a place to K in August 2023 decided it could not meet K’s needs.
36. After the Council responded to Ms B’s complaint, she emailed explaining why she was unhappy with its response. The Council then sent Ms B a final response to her complaint.
37. Ms B was unhappy that her complaint had gone to the final stage of the Council’s procedure without her knowledge. The Council accepted that it should not have sent Ms B a final response and it escalated her complaint to the second stage of its complaint procedure.
38. In the Council’s further response, it said that the school had exercised its right to provide K with off-site provision due to the risk of him being permanently excluded. It apologised for K not receiving sufficient support and it provided details of the action it was taking to secure additional education for K.
39. In March 2024, Ms B asked the Council to send her a copy of any correspondence relating to the annual review held in September 2023. The Council then sent Ms B a copy of a letter it had sent to Ms B in December 2023 which stated that no changes would be made to K’s EHC Plan. Ms B says she had not seen it before. The letter explained that Ms B could appeal to the SEND Tribunal if she disagreed with the decision to not make any changes to K’s EHC Plan.
40. The Council has been unable to find an alternative placement for K and it has not put any additional alternative provision in place. K has not returned to school.

Analysis

41. While the Council consulted several schools between October 2023 and February 2024, it has taken little action since then to secure a suitable school placement for K. This is fault.
42. The Council’s records do not show why the Council decided to name K’s current school in his EHC Plan in April 2023, or why it decided not to amend K’s EHC Plan in December 2023, despite the school recommending a change of placement and knowing that, since September 2023, the school had not allowed K to attend. This was fault.
43. When the Council wrote to Ms B to tell her that it would not be amending K’s EHC plan, it incorrectly stated that it had accepted the school’s recommendations and did not explain why it had decided not to accept its recommendation to change his placement. This was fault.
44. The law says that councils must make suitable full-time educational provision for children who are unable to attend school. 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. However, if a Council is arranging one-to-one tuition, fewer hours may be appropriate, given the increased intensity of learning.
45. The school says it has been providing K with two hours with a tutor each week. It says it also offered to provide an additional hour with a tutor and two hours of online daily tutoring but Ms B refused this. K has also been provided with around five hours of support each week from a youth organisation.
46. I do not consider K has received all the provision set out in his EHC Plan, or sufficient suitable education. This is fault.
47. The Council made some efforts to secure additional alternative provision. Ms B refused one offer because it would mean K would have to come off the roll of his school, which she had been advised not to do, and because she believed the education would be mainly online. The Council’s records show that the suggested alternative provision would be unlikely to provide much support with GCSEs.
48. In January 2024, the Council found a tutor who could provide 15 hours of education each week and support K to complete his GCSEs but it decided against offering this to Ms B.
49. We will not usually seek a remedy for loss of education after the date a right of appeal exists for the reasons explained in paragraphs 5 to 8 above. However, in this case, I have decided a remedy for the whole period that K was not receiving a suitable full-time education is appropriate. This is because I consider there are good reasons why Ms B did not use her right of appeal. Ms B’s main concern was that she wanted K to move to a different school. The Council had already agreed to this and was consulting several schools and so Ms B would not have considered there to be any need to appeal the Council’s decision to not change K’s EHC Plan.
50. The Council’s failings in this case have resulted in a loss of educational provision and social interaction for K, and have caused Ms B distress, frustration and inconvenience.
51. Where fault has resulted in a loss of educational provision, we will usually recommend the Council makes a payment to the parent for the child’s educational benefit. I have decided a remedy payment based on £900 per term is appropriate in this case. I have taken into account our guidance on remedies, K’s special educational needs, the amount of education and support provided, and the alternative provision which Ms B did not accept.
52. The Council carried out an annual review and issued a final EHC Plan in December 2024. If Ms B is not happy with the contents of the plan or the placement named in K’s EHC Plan, she can appeal to the SEND Tribunal.

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Agreed action

53. Within four weeks, the Council will take the following actions:
• Arrange appropriate education for K until a suitable placement is found.
• Apologise to Ms B and K for the failings identified in this case.
• Make a payment of £3600 to Ms B for K’s educational benefit. This is a symbolic payment to acknowledge the impact of the missed provision.
• Make a symbolic payment of £500 to Ms B to recognise the distress, frustration and inconvenience she has experienced due to the Council’s failings in this case.
54. Within eight weeks of my final decision, the Council will take the following actions:
• Identify a suitable school place for K and arrange admission.
• Provide guidance to relevant staff regarding unofficial exclusions and off-site directions. It will include details of the actions they should take if they become aware that a school has unofficially excluded a pupil or is not following the guidance in relation to off-site directions.
• Remind members of the EHC Plan Governance Board to fully explain the reasons for its decisions.
• Provide guidance to staff on what they should do if none of the schools it consults will offer a child a place.
• Ensure reasons are provided when staff write to parents with the Council’s decision to not amend an EHC Plan, against the recommendation of the school.
55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation and uphold Ms B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman