The Ombudsman's final decision
Summary: We have discontinued our investigation into Mrs B’s complaint about the alternative educational provision her son received after he was permanently excluded from school. It is unlikely that, if we investigated further, we would either find fault with the Council or find that any fault caused a significant injustice to Mrs B and her family.
The complaint
The complainant, whom I refer to as Mrs B, complains about the education the Council delivered to her son, C, after he was permanently excluded from school. She also complains that the Council failed to decide C’s special educational needs (SEN) provision within the legal timescale, and that its communication with her was poor.
Mrs B says she and her family were caused distress by the Council’s failings, which has led to her not being able to work. She says this has caused her a financial injustice.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating, or any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) The law says we cannot normally investigate a complaint when someone has, or had, a right of appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect (or to have expected) the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended) 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.
The courts have established that if someone has appealed to the SEND 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)
How I considered this complaint
I considered information from Mrs B and the Council. Both had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
The Council’s responsibilities Alternative provision Councils must arrange suitable education for children who are out of school because of exclusion. (Education Act 1996, section 19). We refer to this as alternative education provision.
The education provided by a council must be full-time unless it decides full-time education would not be in the best interests of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA) Full-time education for excluded pupils must begin no later than the sixth day of the exclusion. (Statutory guidance, ‘Alternative provision’) While ‘full-time’ is not defined in law, children in alternative provision should receive the same amount of education as they would otherwise receive in school. (Statutory guidance, ‘Alternative provision’) If a child in alternative provision receives one-to-one tuition, for example, the hours of face-to-face provision could be fewer as the provision is more concentrated. (Statutory guidance, ‘Ensuring a good education for children who cannot attend school because of health needs’) EHC plan development Parents (and others) can request that a council assesses a child’s SEN and sets out what support they need in an education, health and care (EHC) plan. This is a document which sets out a child’s SEN and the arrangements which should be made to meet those needs. (‘SEND code of practice: 0 to 25 years’) The whole process – from the point when an SEN assessment is requested until the final EHC plan is issued – must take no more than 20 weeks. (‘SEND code of practice: 0 to 25 years’) If a council proposes to amend an EHC plan, it must send the child’s parent a notice providing details of the proposed amendments. (‘SEND code of practice: 0 to 25 years’). Case law says this should happen within four weeks of the date of the review meeting.
If the local authority decides to continue to make amendments, it must issue the amended EHC plan as quickly as possible and within 8 weeks of the original amendment notice. (‘SEND code of practice: 0 to 25 years’) What happened In February 2023, it appears C’s school contacted the Council and said it could not meet his SEN. It asked the Council to assess his needs and set out the support he needed in an EHC plan.
In May 2023, C was permanently excluded from school.
Five school days later, the Council provided an hour’s home tuition to C. The day after, it arranged two hours’ daily educational provision at a local children’s centre (with two-to-one staff support). It also arranged a taxi to and from the centre.
Mrs B says the Council failed to consult her before arranging the provision and the taxi.
In July, the Council increased C’s provision to two and a half hours each day. This ran to the end of summer term. Mrs B says this provision ended suddenly at the end of term and without warning.
In mid-July the Council also finalised C’s EHC plan. The plan said C would attend the school from which he had just been permanently excluded.
At the start of the new term in September, C’s alternative provision continued at the children’s centre. And the following week, this was increased to four hours each day.
In mid-October, the Council amended C’s EHC plan, naming a special school. Mrs B appealed the plan to the SEND Tribunal.
In late October, C’s alternative provision ended.
After Mrs B complained about how the Council had handled C’s case, it accepted that it should have communicated more with her about C’s education. It said communication had not been as effective or regular as it should have been, and it apologised.
Analysis It is not the Ombudsman’s role to decide what education a child needs. But we can decide whether a council appears to have met its statutory duties in delivering educational provision to a child.
We will, however, only investigate a complaint if it appears likely we would find fault with a council, and would find that the fault caused a significant injustice to the complainant. To do otherwise would not be a good use of public money.
Alternative provision Although the number of hours of alternative provision C received was less than he would have had while in school, government guidance is clear that fewer hours can be more effective in a one-to-one setting (or, as C received, two-to-one).
The Council delivered – without delay – a package of support which, with the guidance in mind, does not appear obviously unreasonable or inadequate. The support also increased over time, which suggests the Council had regard to C’s needs when deciding the provision.
Consequently, I would be unlikely to find fault with the Council if I investigated further, and I will not do so.
Delay to C’s EHC plan With the statutory timescales for EHC assessment and planning in mind, it appears that any delay to C’s initial plan (if, indeed, there was a delay) was probably limited to around two or three weeks. And there does not appear to have been any obvious delay to the reamendment process.
For this reason, it is unlikely that C suffered a significant injustice, and I will not investigate this matter further.
C’s school I appreciate that Mrs B was dissatisfied when the Council named the school C had been permanently excluded from in his EHC plan.
This is something which would normally be considered by the SEND Tribunal, not the Ombudsman. But it appears Mrs B did not get around to appealing to the Tribunal, because the Council amended the plan and named a new school anyway.
As Mrs B did not appeal at the time, the law does not stop me looking at this complaint. However, I will not look at it, because: This matter was resolved without any involvement from the Tribunal or the Ombudsman.
The consequences of the decision – that C remained out of school in September and October 2023 – were resolved by the Council’s delivery of alternative educational provision, which I have already considered.
The SEND Tribunal will be considering an appeal about C’s subsequent, amended EHC plan and this will likely involve a consideration of the overall merits of C’s provision and placement.
Consequently, it would not be appropriate to comment on this matter further.
Communication The Council has accepted communication failures and has apologised. So there is little reason to reinvestigate this part of Mrs B’s complaint. The question is whether the Council’s apology is a satisfactory remedy for Mrs B’s injustice.
The things Mrs B appears to be particularly unhappy about – C’s tuition ending abruptly at the end of summer term, a taxi being arranged without warning, and alternative provision being arranged without consultation – are things which are unlikely, in my view, to justify a significant remedy.
In the circumstances, an apology from the Council does not appear to be an obviously unreasonable or disproportionate remedy for Mrs B’s injustice. As she has already received an apology, I will not investigate further.
October 2023 onwards If a child or young person is not attending school, and the reason for non-attendance is linked to a parent’s SEND Tribunal appeal, we cannot investigate a complaint about a lack of SEN provision or alternative educational provision.
The period we cannot investigate starts from the date the appealable decision was made. The period ends when the Tribunal comes to its decision, or if the appeal is withdrawn or conceded.
This means I cannot look at any part of Mrs B’s complaint from the date the Council issued C’s new EHC plan in October 2023.
Final decision
I have discontinued my investigation.
Investigator's decision on behalf of the Ombudsman