Summary: Ms X complains the Council failed to ensure the special educational provisions in her child’s education, health and care (EHC) plan were implemented. She also complains the Council took child protection action in retaliation to her complaints. We find fault with the Council for not securing the special educational provisions set out in Ms X’s child’s EHC plan. We have made recommendations.

The complaint

1. Ms X complains about the following:
• The Council failed to ensure the special educational provisions in her child’s Education, Health and Care (EHC) plan were implemented.
• The Council took child protection action in retaliation to her complaints about the provisions not being provided. She says the Council failed to provide her with professionals’ reports five days before the conference and did not send her an invite to the conference.
• The conduct and outcome of the child protection conference.
2. Ms X says the Council’s failures led to her son being physically restrained and excluded from school. She also says she was forced to quit her job.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
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)

Back to top

How I considered this complaint

6. I spoke with Ms X and considered the information she provided.
7. I made enquiries with the Council and considered the information it provided.
8. I sent a draft decision to Ms X and the Council and considered their comments.
9. 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.

Back to top

What I found

Legislation and guidance

10. A child with special educational needs (SEN) may have an EHC plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections which include:
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and type of the school or other institution to be attended.
11. The Council has a duty to secure the specified special educational provision in an EHC plan for the child or young person. (Section 42, Children and Families Act 2014).The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a Council asks another organisation to make the provision and that organisation fails to do so, the Council remains responsible.
12. Where a local authority has reasonable cause to suspect a child in its area is suffering, or is likely to suffer, significant harm, it has a duty under section 47 of the Children Act 1989 to make enquiries to enable it to decide whether it should take any action to safeguard or promote the child’s welfare.
13. The child protection process is set out in statutory guidance, ‘Working Together to Safeguard Children’ (2018). This sets out that concerns about children suggest a strategy meeting is held between professionals first to establish what actions should be taken. The decision can be taken to investigate and to write a report for consideration by an initial child protection case conference. The conference recommends whether children should be on a child protection plan.
14. Children are made the subject of child protection plans if they are thought to be at risk of harm. This might be from physical abuse, sexual abuse, emotional abuse or neglect. The structure of the plan helps to keep a check on the work being done with such children. The aim of a child protection plan is to:
• ensure the child is safe from harm and prevent them from suffering further harm
• promote the child’s health and development
• support the family and wider family members to safeguard and promote the welfare of their child, provided it is in the best interests of the child.
15. Each local authority will be covered by local child protection/safeguarding procedures based on the Working Together guidance. The relevant procedures for this complaint is the London Child Protection Procedure.
16. The London Child Protection Procedure includes a process for dealing with complaints about child protection conference. The complaints procedure is for people dissatisfied with the conduct or outcome of a child protection conference. The procedure covers complaints about:
• The way the conference was run.
• Decisions about whether a child should have a child protection plan.
• Decisions about the category of concern the plan was made under (e.g. physical abuse/neglect/emotional harm)

What happened

SEN provision

17. Ms X has a child, Y, with an Education, Health and Care (EHC) plan. The Council originally named Y’s educational placement at School A. In July 2019, following an annual review, the Council named School B in the EHC plan, to start from September 2019. This was Ms X’s parental preference.
18. Y’s EHC plan also sets out the special educational provision he needed. This included the provision of a specialist programme. The EHC plan also noted Y needed 32.5 hours of dedicated specialist support provided by a trained specialist tutor.
19. At the end of July 2019, School B told Ms X there were struggling to recruit the specialist tutor due to the required qualifications for the role. The school gave Ms X the option of Y starting in September 2019 with a teaching assistant who had good experience of the specialist programme, but not the required qualifications. Alternatively, Y could remain at School A until School B found a specialist tutor.
20. Y started at School B in September 2019. School B had still not found a suitable specialist tutor for Y. The Council agreed to increase funding to the school to help the school find a specialist tutor.
21. School B told Ms X it would keep one to one support for Y while it continued to recruit for the specialist tutor. The school also noted Y’s behaviour was worsening and resulting in challenging behaviour.
22. At the end of October 2019, School B appointed a specialist tutor to provide the specialist support as set out in Y’s EHC plan.
23. In January 2020, School B also told the Council Y distressed at school and not engaging with his specialist tutor. The school also told the Council the specialist tutor was finding it difficult to carry out the support due to Y’s defiant and challenging behaviour. The school proposed two to one support from Y as it felt one person could not meet his needs.
24. At the end of January 2020, Y’s specialist tutor left the school. The school began the recruiting for a replacement immediately.
25. In February 2020, School B asked the Council for an annual review. The Council noted it had significant concerns about the appropriateness of the specialist programme. The Council decided to complete a reassessment of Y’s special educational needs. During the reassessment, Y received two to one support.
26. By mid-February 2020, School B appointed another specialist tutor for Y.

Child protection

27. In October 2019, Ms X told the Council that Y was becoming increasingly aggressive towards her and that she was anxious about how she would manage as Y got older and physically stronger.
28. In November 2019, Ms X told the Council the strategies she used to manage Y was not working and that a serious of incidents had happened at school, including that school staff restrained Y. Ms X also told the Council she was experiencing verbal and physical abuse from Y daily.
29. Near the end of November 2019, the Council opened a section 47 enquiry as it received information from Ms X that Y had threatened himself and Ms X with a knife.
30. In December 2019, the Council decided to transfer the case to its children with disabilities team to complete a child and family assessment.
31. In January 2020, Ms X reported two incidents involving Y. She first reported Y had gone missing. The second incident she reported was that Y had attacked her and then ran away. Ms X told the Council she did not want Y back and that he could stay with his maternal grandparents.
32. The Council held a strategy meeting to discuss the situation with relevant professionals. The meeting decided there were concerns of emotional abuse and all professionals agreed the case should progress to a child protection conference.
33. The Council held the initial child protection conference (ICPC) in February 2020. The outcome of the ICPC was to recommend the Council place Y on a child protection plan under the category of emotional and physical harm.
34. Ms X told the Ombudsman the ICPC had recorded the outcome of the conference as poor parenting and risk of harm. The minutes of the ICPC highlighted there was some discussion that Ms X needed support with parenting Y due to his high needs. There is no record of any outcome being recorded as poor parenting, or any discussion of poor parenting being the reason for Y’s behaviour.
35. Ms X made a complaint about the conduct and outcome of the ICPC. The Council investigated this complaint under the London child protection procedures and found no fault. There is no evidence to suggest the London child protection procedures complaints process was not followed. The Council provided Ms X with a thorough investigation and response.
36. Ms X also complained the Council did not provide her with professional’s reports before the ICPC. The Council said the responsibility for circulating reports for the conference rests with the agencies involved in the conference. The Council accepted fault for not providing her with a copy of its child and family assessment.

Analysis

SEN provision

37. The evidence shows there was no specialist tutor in place to provide support to Y in September and October 2019. It is recognised this was due to difficulties in recruiting the tutor over the summer holidays. I also recognise the Council’s efforts in helping the secure the tutor, as shown by its decision to increase funding to the school to help recruitment.
38. There is also evidence there was a brief period where Y did not have a specialist tutor after the tutor quit the role at the end of January 2020. A new specialist tutor was not in place until mid-February 2020.
39. The law is clear the Council’s duty is to secure the provision set out in a child’s EHC plan. The evidence shows the Council did not secure a specialist tutor, in line with Y’s EHC plan, between September and October 2019 and January to mid-February 2020. This is a service failure and is fault.
40. I consider the fault identified caused Y an injustice because he did not receive the provision he was assessed as needing.

Child protection

41. Ms X said the Council started child protection enquiries in retaliation to her complaints about the Council’s failure to secure the special educational provisions set out in Y’s EHC plan.
42. The Council has a duty to make enquiries where it has reasonable cause to suspect a child in its area is suffering, or is likely to suffer, significant harm. There is evidence the Council completed section 47 enquiries in November 2019 and in January 2020 following concerns made about Y’s behaviour, including his threats to hurt himself and Ms X. I consider the Council’s actions to be appropriate as it is clear the Council had reasonable cause to suspect Y was suffering, or likely to suffer, significant harm.
43. Therefore, the evidence shows the Council had good reasons to start section 47 enquiries. There is no evidence to support Ms X’s view the Council started child protection action in retaliation to her complaints.
44. I have not investigated Ms X’s complaint about the conduct and outcome of the child protection conference. This is because the Ombudsman would only reinvestigate complaints that have been investigated under the relevant local child protection/safeguarding procedures complaints process if:
• there is evidence the process had not been followed, or
• where the process had identified fault, we can consider whether any injustice has been appropriately remedied.
45. There is no evidence to suggest the Council had not followed the London Child Protection Procedures complaints process. The investigation into Ms X’s complaint also did not identify any fault. Therefore, it is not proportionate for me to reinvestigate Ms X’s complains about the conduct and outcome of the child protection conference.
46. I note Ms X was concerned the outcome of the ICPC was recorded as poor parenting. However, there is no evidence this outcome was recorded. Instead, Y was placed on a child protection plan under the categories of emotional and physical harm.

Back to top

Agreed action

47. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:
• Apologise to Ms X for failing to provide all of Y’s special educational provision as set out in his EHC plan.
• Pay Ms X £350 a month to acknowledge the impact of the loss of educational provision for Y. In reaching this figure, I have considered the fact there was interim one to one teaching support for Y while the school recruited the specialist tutor. The Council should pay Ms Y a total of £875.
48. The Council should complete the above within four weeks of the final decision.

Back to top

Final decision

49. I find fault with the Council for not securing the special educational provisions set out in Y’s EHC plan. I find no fault with the Council for taking child protection action. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman