Summary: Mrs X complained the Council failed to find a setting for her daughter, Y, to sit her GCSE exams. Mrs X said she had to arrange for the exams to take place outside of her local area, in busy settings which would impact Y. Y’s tutor then arranged the exams in a local setting. Mrs X said she spent a lot of time arranging the exams and this impacted her, and Y’s, mental health. There was fault in the way the Council did not arrange for Y to sit the exams in a suitable location with suitable adjustments. This fault distressed Mrs X and Y. The Council will apologise, make a financial payment and provide a copy of its new policy.

The complaint

1. Mrs X complained the Council failed to find a setting for her daughter, Y, who has an Education Other Than At School (EOTAS) package, to sit her GCSE exams. Mrs X said she had to arrange for the exams to take place outside of her local area, in busy settings which would impact Y. Y’s tutor then arranged the exams in a local setting. Mrs X said she spent a lot of time arranging the exams and this impacted her, and Y’s, mental health.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a Council’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)
4. 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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How I considered this complaint

5. I read Mrs X’s complaint and spoke to her about it on the phone.
6. I considered information provided by Mrs X and the Council.
7. Mrs 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

Background information

8. 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. 
9. 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.
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.
11. 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)
12. 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)
13. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022

Elective Home Education (EHE)

14. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
15. The travel to school for children of compulsory school age guidance sets out children should not travel more the 75 minutes to school. It also states travel arrangements for children with special educational needs, disability or mobility problems can be complex and shorter journeys are desirable.

What happened

16. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
17. Y has complex additional needs. She has an EOTAS package. Y started year 11 in September 2023.
18. Mrs X met the Council in July 2023 to complete the EHC Plan annual review. Mrs X mentioned she hoped Y could sit her GCSE’s.
19. Mrs X contacted the Council in September 2023 about the transition to further education. The Council noted Y was in year 10 so this was a discussion for the following year. Mrs X corrected the Council, confirming Y was in year 11 and she wanted her to complete exams during the academic year.
20. The Council contacted Y’s tutor, B, in November 2023 to ask about the GCSE’s. B provided the Council with information the exams Y would take and the exam boards. Mrs X contacted the Council to ask about the reasonable adjustments for Y and ask where the exams would be.
21. Between November 2023 and January 2024, Mrs X and the Council contacted different settings, including a local school, school C, to source a place for Y to sit her exams. The Council agreed to fund the exams. No local setting offered Y a place. The Council advised Mrs X about a setting for one exam but it was some distance from the family home. The Council recommended another setting for a different exam with over 80 others in the exam room. Mrs X told the Council she completed the journey at rush hour, and it took 90 minutes and impacted Y’s mental health.
22. The deadline for booking onto the exam was February 2024. Mrs X booked Y on to the centre a long distance from the family home and the centre with over 80 others in the room to ensure Y could sit the exams. Mrs X told the Council she was too late booking the exams to ask for the adjustments Y needed. She set out her concern about both these settings. Mrs X paid this money from her own finances and asked the Council repay her.
23. Mrs X complained to the Council after she booked the exams. She set out the issues with Y’s education that meant she started the EOTAS package. She said the Council knew she wanted Y to sit exams at the end of the 2022-2023 academic year. Mrs X complained the Council did not find a location for Y to sit the exams. Mrs X complained the Council told her it was not its responsibility to name the exam board and centre. Mrs X said she felt the Council was treating Y as EHE, but she was not, it was and EOTAS package.
24. The Council responded to the complaint at the end of February 2024. It said the Council oversees the EOTAS package and supports parents with any further requests and trying to find things such as exam centres. The Council explained it tried to engage with several different exam centres, but none accepted Y. The Council stated the guidance was not clear, but it would continue to try to develop contingency plans for the future.
25. Mrs X asked the Council to escalate her complaint two days later. She said the response did not answer the complaint, only set out the Council’s actions. Mrs X said the Council was not providing a calm, quiet area specified in Y’s EHC Plan. She also raised concerns about the journey to an exam centre.
26. The Council responded to Mrs X’s stage two request in March 2024. The Council accepted it was not ideal for a young person with additional needs to travel distances to an appropriate exam centre. The response said it could not source a centre in the local area and could not force a centre to accept Y.
27. The same day as the Council’s complaint response, B contacted a previous colleague, at school C, and managed to get Y a place to sit the exams. This was near the family home, with a suitable room and support. Mrs X contacted the Council to explain there was a late entry fee and asked the Council to pay the fee.
28. The Council agreed to pay the late entry fee a month later.
29. Y completed the exams at school C. Y had a small room with the access arrangements needed to engage with the exams.
30. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to ensure no other family had to go through this issue.
31. In response to my enquiries the Council stated it could not find any guidance on EOTAS students and exams. The Council confirmed Mrs X booked the exams and it paid her a month later. It also confirmed it was paying school C directly.

My findings

32. The Council is correct to say there is no specific guidance about exams if a child has an EOTAS package. However, if a child has an EOTAS package the Council is responsible for ensuring a child receives suitable education under is section 19 duty, referenced in paragraph 10. This includes access to exams. The Council did not arrange Y’s exams. This is fault.
33. While the Council has made attempts to source an exam centre, it also wanted Mrs X to try to source a centre too. Mrs X booked the initial centres and then B sourced a suitable place at school C for Y to sit the exams. B also ensured Y had access to suitable reasonable adjustments to support completing the exams.
34. The Council is responsible for overseeing EOTAS packages. It was not Mrs X’s responsibility to arrange the exams or fund any part of this from her own funds, even if the Council did repay the money. The Council did not arrange the exams and Mrs X was impacted financially for a month. This is fault and distressed Mrs X and Y.
35. The Council had a duty to secure the special educational provision in the plan (Section 42 Children and Families Act). Y’s EHC Plan states Y needed a “calm, quiet area for schoolwork”. The Council expected Y to take an exam in a room with over 80 other students. This was not a calm, quiet area. This is fault.
36. The travel to school for children of compulsory school age guidance sets out children should not travel more than 75 minutes to school. The Council advised the exam centre it recommended was 62 minutes away. This may be the case if there was no traffic, but it expected Y to travel this distance at rush hour, before an exam. Mrs X said the journey took 90 minutes in rush hour. Having considered the potential journey times with traffic, this is not an unrealistic journey time. This is over the 75 minutes set out in the guidance. Y has complex additional needs and I have seen no evidence the Council considered these factors. This is fault.
37. The Council accepted in response to my enquiries it needs an EOTAS policy. The Council said it is creating this. The Council has reflected on the issues in this case, and others, and is actively developing a policy.

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Agreed action

38. To remedy the outstanding injustice caused to Mrs X and Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Y for not arranging a suitable exam centre with suitable arrangements for Y to sit the exams. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X £300 as an acknowledgement of the frustration and distress this fault caused.
39. The Council should take the following action within three months of my final decision:
• Provide a copy of the EOTAS policy to evidence it is acting following the fault identified in this case.
40. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

41. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman