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Milton Keynes Council (21 000 360)

Category : Children's care services > Child protection

Decision : Upheld

Decision date : 31 Mar 2022

The Ombudsman's final decision:

Summary: Miss X complained that the Council failed to properly investigate a safeguarding referral about an incident at her son’s school. She also complained that the Council has not supported or helped her to home school her son. Miss X said this caused stress, uncertainty, had a significant emotional impact on her and her son, and meant her son missed out on education. We find the Council at fault for failing to support Miss X to home educate her son. This caused injustice. We are satisfied the Council has already apologised, has agreed to make a payment to reflect the injustice caused, and has made improvements to its service. We cannot investigate Miss X’s complaint about the safeguarding referral because is it outside the Ombudsman’s jurisdiction.

The complaint

  1. The complainant, who I refer to here as Miss X, complains that the Council failed to properly investigate a safeguarding referral about an incident at her son’s school. She says the Council failed to tell her the outcome of its investigation. She also complains that the Council has not supported or helped her to home school her son.
  2. Miss X says this caused stress, uncertainty, and had a significant emotional impact on her and her son. She says it meant her son missed out on education. She says she had to do all the work herself about home schooling. She feels ignored and has lost trust in the system.

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What I have investigated

  1. I have investigated the part of Miss X’s complaint about the lack of Council support to home educate her son. The final section of this statement contains my reason for not investigating the part of Miss X’s complaint about the safeguarding referral.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
  6. 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

  1. I considered the information and documents provided by Miss X and the Council. I spoke to Miss X about her complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
  2. I considered the relevant legislation and statutory guidance, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

  1. Parents can choose to home educate their child with special educational needs. This is known as elective home education. The child is not registered at any school, and the financial responsibility for educating the child falls to the parents.
  2. Where a parent withdraws a child with an Education, Health and Care (EHC) plan from school to home educate them then the council no longer has an obligation to provide the special educational provision in the EHC plan. This is because the parents are deemed to be making their own suitable alternative arrangements. However, the council must satisfy itself that the arrangements made by the parents are suitable.
  3. The SEND Code of Practice says where a council and parents agree that home education is the right provision for a child with an EHC plan, the plan should make clear that the child will be educated at home. The council should amend the EHC plan to name the type of school that would be suitable but state that parents have made their own arrangements under section 7 of the Education Act 1996.
  4. Councils do not regulate home education. However, the law requires councils to make enquiries about what education is being provided when a child is not attending school full-time. The Department for Education recommends, amongst other things, that councils:
    • provide parents with a named contact who is familiar with home education policy and practice; and,
    • make contact with home educating parents on at least an annual basis to consider the suitability of the education provided.

What happened

  1. Miss X’s son, S, has special educational needs and an Education, Health and Care (EHC) plan. In November 2019, there was an incident at S’s school. S did not want to go back to school. Miss X wrote to the school, asking to take S off the school’s register. The school and the Council agreed to this.
  2. In December, the Council visited Miss X and discussed home schooling options. The Council said its home-schooling team would call her to discuss it.
  3. In February 2020, Miss X complained to the Council that she wanted support with S’s education.
  4. In March, the Council responded to the complaint. The Council said its plan was to update S’s EHC plan, consider if it could provide home education support, and to discuss S’s future education plans within its special educational needs team. The Council accepted that it should have offered Miss X a more timely response in offering her support. It apologised for its slow actions.
  5. In June, the Council confirmed it had secured a place at another school for S to start in September 2020.
  6. In September, the Council issued the final EHC plan naming the new school.
  7. Miss X then complained to the Ombudsman.

Analysis

  1. Miss X complains that the Council has not supported or helped her to home school her son.
  2. In its response to our enquiries, the Council accepted it was at fault because:
    • it did not review S’s Education, Health and Care (EHC) plan when Miss X removed him from school;
    • it did not review the suitability of S’s home education; and,
    • it did not follow formal processes.
  3. Also, the Council recognises it did not investigate Miss X’s complaint about lack of support. It says this was an error.
  4. I find these faults caused Miss X injustice because they caused uncertainty and frustration, and meant she lost the opportunity to receive support she was entitled to.
  5. The Council recognises that it needs to rebuild its relationship with Miss X. This is positive.
  6. The Council has already written to Miss X to apologise for the injustice caused by the faults. It has also offered to make a payment to Miss X of £750 to reflect the injustice caused by the faults.
  7. The Council says it has made changes to the way it supports home education, and education otherwise than at school, for children with EHC plans. This includes contacting relevant families at least once a term. The Council says it is also recruiting for a senior EHC practitioner who will have overall responsibility for this work. This is positive.
  8. The Council also says it is committed to ensuring that the faults in this case are not repeated. This is also positive.
  9. Given the actions the Council has already taken, I do not consider it appropriate or proportionate to recommend any further improvements to the Council’s service.

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Agreed action

  1. I am satisfied that the Council’s offer of £750 is appropriate and in line with the Ombudsman’s published guidance on remedies. The Council has agreed to make this payment to Miss X within four weeks of this decision.
  2. The Ombudsman will need to see evidence that this has been completed.

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Final decision

  1. I have completed my investigation and I uphold the part of Miss X’s complaint about lack of support for home education. I find fault causing injustice. I am satisfied the Council has apologised and made service improvements. The Council has agreed to make the payment it offered to Miss X.

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Part of the complaint that I did not investigate

  1. Miss X complains that the Council failed to properly investigate a safeguarding referral about an incident at her son’s school. She says the Council failed to tell her the outcome of its investigation.
  2. As I have said in paragraphs six, seven, and eight, we cannot investigate complaints about what happens in schools. We also cannot investigate a council’s actions about something which is out of our jurisdiction.
  3. The safeguarding referral was about an incident that happened in S’s school, which is outside our jurisdiction. This means we cannot investigate Miss X’s complaint about what the Council did about the safeguarding referral.

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Investigator's decision on behalf of the Ombudsman

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