Summary: Mrs D complains the Council failed to safeguard her daughter and other students from abuse by staff and other pupils whilst they attended an independent special school from September 2017 to July 2020. We have found no fault.

The complaint

1. Mrs D complains the Council failed to safeguard her daughter and other students from abuse by staff and other pupils whilst they attended an independent special school from September 2017 to July 2020. In particular, Mrs D complains the Council:
• Failed to act in response to concerns about staff members' behaviour.
• Delayed conducting a safeguarding review for two years.
• Did not offer alternative placements until February 2020.
• Failed to secure the provisions set out in her daughter's education, health and care (EHC) plan from 2017 and 2020.
• Failed to ensure her daughter received a suitable and good quality education.
• Continued to place and fund children at the school despite being aware of its failings.
2. Mrs D says as a result, her daughter is behind in her education, has lost all trust in adults, is frightened of boys and requires weekly counselling.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
5. 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)

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How I considered this complaint

6. I spoke to Mrs D about her complaint and considered the information she sent and the Council’s response to my enquiries.
7. Mrs D 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

Relevant law and guidance

Safeguarding children

8. Local authorities have overarching responsibility for safeguarding and promoting the welfare of all children and young people in their area, regardless of the types of educational settings they attend. Councils must investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child's welfare. (Children Act 1989, section 47)
9. All schools, including independent schools, are required to have arrangements to safeguard and promote the welfare of pupils attending the school. This includes referring to the local authority if a child is likely to suffer from significant harm and having procedures to deal with peer on peer abuse. Where a local authority has a concern about an independent school’s safeguarding arrangements, it should report this to the Department for Education.

Allegations against staff

10. Councils must appoint a Local Authority Designated Officer (LADO) to oversee and manage investigations of allegations against people working with children. Referrals to the LADO are categorised as advice, a complaint, or an allegation:
• Advice – does not meet threshold for LADO involvement, this may be where there is a practice issue or there is not enough information to identify the adult concerned or determine the safeguarding concern for children.
• Complaint – the referral does not meet the threshold of an allegation, but does require some action by the employer, usually to investigate fully events that have occurred and consider whether performance or disciplinary issues need to be addressed.
• Allegation – Incidents which meet the threshold and require a referral to the police and/or to local authority children's social care so that they can initiate a safeguarding enquiry.

School performance

11. The Department for Education is the regulator of independent schools in England. The Department registers independent schools, sets the independent schools’ standards that those schools must meet, and it acts when schools fail to meet those standards. Registered independent schools are inspected by Ofsted to determine whether the school is meeting the independent schools’ standards.

Special educational needs

12. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHCP). The EHCP sets out the child's educational needs and what arrangements should be made to meet them. The Council is responsible for making sure that arrangements specified in the EHCP are put in place and reviewed each year.
13. Councils must review a child's EHCP every 12 months. These annual reviews consider whether the provision remains appropriate and whether progress is being made towards the targets in the EHCP.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the SEN provision, the school named in their child's plan, or the fact that no school or other provider is named. The Ombudsman cannot look at complaints about what is in the EHCP but can look at other matters, such as where support set out has not been provided or where there have been delays in the process.
15. Following the COVID-19 lockdown in 2020, the absolute duty of councils to secure or arrange provision set out in an EHCP was temporarily modified to a duty to use “reasonable endeavours” to do so. This change applied from 1 May to 31 July 2020.

What happened

16. Mrs D’s daughter, J, has diagnoses of autistic spectrum disorder and other conditions. Following an assessment of her special educational needs, an EHCP was issued on 1 June 2017 which said J should be supported by a range of strategies, programmes and interventions. The EHCP named an independent special school for autistic children (the School) operated by a charity. J started there in September 2017 when she was 11 years old.

2018/2019

17. J witnessed a safeguarding incident involving a member of staff and another pupil in March 2018. The School reported the incident to the police and the LADO and the staff member was removed from the school.
18. An Ofsted inspection in May 2018 found the School required improvement, although found its safeguarding arrangements to be effective.
19. In September 2018 the School referred a staff member to the LADO following an incident involving J and other pupils. The LADO found the incident to be a conduct matter, rather than a criminal or safeguarding one, and took no further action. The School suspended the staff member and he later resigned, but Mrs D says he was still working at the School for two weeks after the incident and was not referred to the Teaching Regulation Agency (TRA).
20. Mrs D contacted the Council on 22 October 2018. She was concerned about safeguarding and other issues within the School and listed a number of incidents that had happened to J since September 2017. These included being assaulted by other pupils and by staff. Mrs D asked for an urgent review of J’s EHCP. The Council arranged to carry out a monitoring visit of the school.
21. There was an annual review of J’s EHCP on 31 October 2018. This found she was making progress against her EHCP targets and that the provision remained appropriate.
22. The Council visited the School in November 2018. It discussed management of pupil behaviour, including sexualised behaviours, communication with parents, consistent implementation of rules and rewards, use of agency staff, staff qualifications and understanding of autism. The Council found the School’s safeguarding processes to be effective but recommended improvements. The incidents reported by Mrs D were also discussed. The School said it had investigated them. The Council says it could not determine whether the School had acted appropriately as the incidents were historic.
23. The Council then met Mrs D and other parents who had raised similar concerns. It visited the School again in January 2019 and found that the School had made some progress on implementing the recommendations.
24. Mrs D continued to report various incidents to the Council, including incidents relating to other children. The Council decided to increase its monitoring of the School.
25. In March 2019 Mrs D complained to the School about an incident involving a staff member and J and also informed the Council. The Council asked the School for its restraint records. The incident was referred to the LADO who found the staff member’s actions were necessary and proportionate to keep children and adults safe. The LADO closed the case with no further action.
26. To monitor the education J was receiving, the Council had asked an educational psychologist to visit the school, observe J and talk to her and staff. The educational psychologist issued his report in April 2019. The report included J’s account of several safeguarding incidents and said that she did not feel safe in the School but did not want to leave. The psychologist concluded that J was making progress against her EHCP targets and that the provision remained appropriate.
27. The Council visited the School again in April 2019. It discussed the concerns raised by J in the educational psychologist’s report and the high number of safeguarding incidents that were being reported. The School said it was putting its improvement plan in place and asked the Council to review its safeguarding procedures. The meeting also discussed concerns that provision in pupils’ EHCPs was not being delivered. The School agreed to review the provision.
28. The Council followed up with a further visit in June 2019. It found a number of improvements had been made, such as a new behaviour support team and fewer unqualified staff, but further action was needed. The Council decided to review all the safeguarding concerns.

2019/2020

29. Mrs D told the Council about another safeguarding incident by a pupil in early September 2019, which had affected J and other pupils. The Council arranged separate transport for J and spoke to the Police. It asked the School to keep the pupils apart and to provide internet safety awareness for all pupils. Mrs D says the other pupil was not kept away from J.
30. The Council stopped placing children at the School in September 2019. It reviewed the School’s safeguarding procedures and specific complaints raised by Mrs D and other parents. The review found the learning environment was calm, oversight of safeguarding issues had improved and the School had acted appropriately when incidents were reported. However there was no evidence the School reviewed safeguarding concerns to improve practice or that the charity had responded to parents’ complaints. The Council found a lack of feedback to parents about incidents and that their concerns were sometimes minimised. It made further recommendations to the School. The Council spoke to the charity and Ofsted about its concerns.
31. There was an annual review of J’s EHCP on 13 November 2019. This again found she was making progress and that the provision was appropriate.
32. A further Ofsted inspection found the School was not meeting all the independent schools’ standards.
33. In December 2019 the Council asked parents whether they wished to consider a new placement. Mrs D said she was very unhappy with the provision but J had made friends and was unlikely to agree to leave the School. Mrs D asked what other provision was available. She then emailed the Council in January 2020 to say she wanted to explore alternative options as she no longer wanted the School to be named on J's EHCP. The Council suggested possible alternative placements for Mrs D to consider in February 2020.
34. Following further meetings with the School and charity, the Council wrote to the charity in January 2020. It expressed significant concern about the lack of progress to ensure safeguarding was effective and said it did not have confidence in the School’s leadership to respond. The Council asked the charity to demonstrate significant improvements in safeguarding by the time the Council revisited the school. The Council visited the school in February 2020. It found there was insufficient evidence of progress against the recommendations it had made in October 2019.
35. The Council shared its concerns about the School with Ofsted when it inspected again in March 2020. Ofsted found the School was inadequate and its arrangements for safeguarding were not effective. The School announced that it would close at the end of July 2020.

COVID-19 lockdown

36. The first national coronavirus lockdown started on 23 March 2020. Schools were closed to most children and remained open only to vulnerable children (including those with EHCPs) and children of key workers. Councils and schools were advised to carry out risk assessments to decide whether a child with an EHCP could be safely supported at home or would be safer in a school setting.
37. The School remained open but J did not attend. The School produced a risk assessment which said it would be difficult to ensure social distancing if J was at school. On 16 April 2020, the Council was informed of concerns about welfare checks and risk assessments for pupils not attending the School, including J. It spoke to the School about parents not being involved in the writing of the risk assessments. The Council made weekly calls to Mrs D to check how J was managing. Mrs D said work had been sent home and the School called once a week, which she considered to be insufficient.
38. The Council discussed with the School how it was delivering EHCP provision and completed a “reasonable endeavours” plan for J on 2 June 2020. This said J would learn at home with virtual provision.
39. A new EHCP was issued on 27 July 2020 naming a new placement, which J started in September 2020.

Mrs D’s complaint

40. Mrs D complained to the Council in April 2021 that it had failed to safeguard J or ensure appropriate action was taken in response to the safeguarding incidents. She complained the Council had left pupils at the School despite being aware of almost daily safeguarding incidents often involving emergency services.
41. The Council replied in June 2021. It said:
• It had worked with the charity and the School to provide a considerable degree of support and challenge from autumn 2018 onwards. This included investigations into individual safeguarding concerns and two full monitoring visits. It was not able to share the safeguarding reviews with Mrs D but she had been kept informed.
• The charity had overhauled the School’s management and brought in a head of safeguarding. It was therefore not unreasonable for the Council to consider the School would improve. Once it was clear improvements were not taking place, the Council decided to cease new placements and asked parents about alternative placements.
• Following the September 2018 incident, the LADO had considered the staff member’s actions to be a conduct issue, not a criminal or safeguarding matter. It was the School's responsibility to consider a referral to the TRA. However, the charity had now referred the staff member to the TRA and to another council’s LADO. The charity would also commission an independent review of October 2018, November 2018, and February 2019 incidents that were not referred to the LADO at the time.
42. When she came to the Ombudsman, Mrs D said J should have been receiving an enhanced package at the School which included one-to-one support but this had not been provided.

My findings

Safeguarding

43. Mrs D complains the Council failed to safeguard J. The School was responsible for dealing with the safeguarding incidents it became aware of. I cannot investigate the School’s actions as they lie outside the Ombudsman’s remit. However, I note that it reported some of the incidents to the LADO.
44. Councils have overarching responsibility for safeguarding and promoting the welfare of all children in their area, regardless of the types of educational settings they attend. Councils should also refer any concerns about an independent school's safeguarding arrangements to the DfE. I have therefore considered the Council’s actions in response to the safeguarding concerns that Mrs D raised.
45. The Council reported incidents to the LADO and carried out a monitoring visit in November 2018. This found the safeguarding arrangements to be effective but recommended improvements. The Council followed this with further visits in January, April and June 2019 where it checked the School’s progress against the improvement plan and discussed how the School had dealt with specific incidents. When it became concerned that improvements were not being made and incidents continued to be reported, it carried out a review of the School’s safeguarding procedures, spoke to Ofsted and stopped placing children at the School. It then formally raised its concerns with the charity.
46. I find the Council acted in line with its duties in monitoring, offering support and challenging the School and the charity to improve. It took appropriate action in response to the safeguarding concerns. I do not find evidence of fault.
47. Mrs D complains the safeguarding review was delayed by two years. The Council’s review is not the same as investigation of specific safeguarding incidents, so the fact it was carried out in autumn 2019 is not evidence that no action was taken earlier and I note that prior to this the Council was regularly visiting the School and in contact with the charity. The Council was entitled to decide when a review of the School’s safeguarding procedures was necessary. It determined this in the summer of 2019. I find no fault in this decision or any delay or drift in the Council’s actions.
48. Mrs D complains the Council failed to act in response to the staff member’s actions in September 2018. This incident was referred to the LADO who was entitled to decide it did not meet the threshold for action. I have seen no evidence of fault in this decision. It was for the School to determine whether to report the staff member to the TRA or whether to dismiss him. That it did not is not fault by the Council.
49. Mrs D is concerned that pupils and staff involved in the incidents were not kept away from J, but it was not in the Council’s power to ensure this happened. This was a matter for the School.
50. She also complains the Council continued to place children at the school until September 2019 and that it should have removed pupils as the School was not a safe environment. I have carefully considered this.
51. The Council’s role was limited as it could not intervene in an independent school and I consider it was reasonable to allow the School time to implement the recommendations the Council had made before it decided to stop placing. I therefore do not consider it was fault to wait until September 2019 to stop placing children.
52. The Council was aware of the incidents involving J but it also had information that the placement was appropriate, that she did not want to leave and that she was making progress. I find the Council did not have evidence that J was at risk of significant harm that would warrant her immediate removal.
53. There were discussions with Mrs D about finding an alternative placement from autumn 2019. Mrs D did ask for information about placements which was not provided until February 2020. However, I do not consider there was fault here. Mrs D had also said J did not wish to leave the School, and it took time for the Council to find suitable providers. After Mrs D again asked for suggestions in January 2020, the Council provided some in February 2020. I do not find delay.

Special educational needs support

54. Mrs D complains that J was not receiving the provision set out in her EHCP. She also says J should have been receiving one-to-one support, although this is not specified in her EHCP.
55. There is evidence from the Council’s meetings with the School in April 2019 that there were concerns generally about EHCP provision. However, I have seen that there were two annual reviews which found J was making progress, the provision remained appropriate and no changes were needed to the EHCP. These were supported by the educational psychologist’s findings. There is no reference in the reviews that provision was not being made.
56. I note Mrs D says J should have received the enhanced package, but J’s EHCP does not say she should have one-to-one support although I note she was receiving support from learning mentors.
57. I have no evidence that J was not receiving the provision specified in her EHCP or a suitable education so I do not find fault.
58. From May to July 2020 the Council was required to make reasonable endeavours to put J’s EHCP provision in place. J decided to stay at home from March 2020 and was learning remotely. The School produced a risk assessment, although initially with no involvement from Mrs D, which said J should study at home. Given that J was unable to attend the School, I do not find fault with the Council for not arranging the full provisions from 23 March to 1 May 2020, and I find it made reasonable endeavours to put provision in place from May to July 2020.

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Final decision

59. There was no fault by the Council. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman