Decision : Upheld
Decision date : 19 Oct 2018
The Ombudsman's final decision:
Summary: The complainant, Mrs X, says the Council failed to act promptly when arranging an education placement for her brother, who is a looked after child. She says the Council failed in its duty as a corporate parent, including a failure to provide education. The Council is at fault. The Ombudsman has made recommendations to remedy the fault.
- Mrs X complains that the Council:
- did not act promptly to secure education for her brother, D;
- delayed D’s application to appeal the education place chosen by the Council by failing to inform him he needed to take a mental capacity test in good time;
- did not respond properly to her complaint about her brother’s care; and
- provided her with incorrect information, delaying her appeal against the school place decided for D.
The Ombudsman’s role and powers
- 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)
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- the fault has not caused injustice to the person who complained, or
- we cannot achieve the outcome someone wants, or
- there is another body better placed to consider this complaint, or
- it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6), as amended)
- We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs, (the Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’)
- The Court of Appeal reconfirmed that we cannot investigate a decision because it has been or could reasonably be appealed to a tribunal. We also cannot consider the consequences of that decision. Any loss of education during this period is outside of the Ombudsman’s jurisdiction, unless the matters complained of are not inextricably linked to the appeal (R (on the application of ER) v Commissioner for Local Administration (Local Government Ombudsman  EWCA Civ 1407)
- The Ombudsman cannot change a EHCP; only the SEND Tribunal can do that. The Ombudsman cannot look at complaints about what is in the EHCP but can look at other matters, such as where support set out in a statement has not been provided or where there have been delays in the process.
How I considered this complaint
- I spoke with Mrs X and reviewed her complaint. I obtained consent from D for Mrs X to represent him. I made enquiries with the Council and reviewed its response, alongside the relevant law, policy and guidance.
- I gave both the complainant and the Council the opportunity to comment on the draft decision. I reflected on their comments and made amendments.
What I found
- Councils follow different complaints procedures for different types of complaints.
- The Statutory Complaints procedure should be used for complaints about the decisions or apparent failings of a council’s children’s social services provision. This process allows ‘any appropriate person’ to act on behalf of a young person or to make a complaint in their own right. (Statutory Complaints procedure. Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others.)
- All functions of a local authority may form the subject of a complaint, such as an unwelcome or disputed decision, delay in decision making or provision of services, delivery or non-delivery of services including complaints procedures etc. (Children Act 1989, Section 26(3))
- The Council also has a Non-Statutory complaints procedure for children and young people. It says this should be used when a complaint cannot be made under the Children Act. It says this would be when someone who does not have parental responsibility or someone who has not been deemed a ‘significant other’ wants to complain. It can also be used when the complaint is related to young people such as the example of a complaint made by a member of the public complaining about the actions of a social worker.
- Timescales for dealing with complaints under the different procedures differ greatly. For instance, if a complaint is dealt with under the Statutory Complaints procedure, stage one of the complaint should be dealt with in 10 days.
- The Councils Non-Statutory procedure says that it will take three days to acknowledge a complaint. The complaint should then be handed to an independent senior officer. A response should be provided in 25 working days. If there is delay, the complainant should be kept informed.
Local authorities’ duty to 16 to 17-year-old looked after children
- Councils have particular responsibilities for children who are ‘looked after’. They act as their ‘corporate parent’ and must safeguard and promote their welfare. (10.2 Special educational needs and disability code of practice: 0 to 25 years)
- Recent guidance has explained that the question local authorities have to ask themselves as the corporate parent of a looked after child is: ‘would this be good enough for my child?’ It says that everyone at a council, from the Chief Executive down to front line staff, should be concerned with looked after children as if they were their own. The guidance says it is important to encourage and promote the views of those who are currently disengaged. This underpins high quality care and pathway planning for looked after children. (Applying corporate parenting principles to looked-after children and care leavers, February 2018)
- Councils have a responsibility to provide personal support and to prepare a Pathway Plan. The Pathway Plan can plot transition into education and or training. In reviewing their arrangements for their education, health and care needs assessment councils should ensure good advanced planning involving the young person and a personal advisor. (10.12 Special educational needs and disability code of practice: 0 to 25 years)
- After the age of 16, a young person’s right to make requests and decisions applies to them directly, rather than to their parents. Parent, or other family members, can continue to support young people in making decisions, or act on their behalf, provided that the young person is happy for them to do so. (8.13 , Special educational needs and disability code of practice: 0 to 25 years)
- A young person can ask a family member or friend to support them in any way they wish, including, for example, receiving correspondence on their behalf, filing in forms, attending meetings and helping them make decisions. (8.16, Special educational needs and disability code of practice: 0 to 25 years)
- Where a young person is under 18, the involvement of parents is particularly important. Councils should continue to involve them in the vast majority of decisions. (8.17, Special educational needs and disability code of practice: 0 to 25 years)
- One of the ways in which Councils should support and encourage the involvement of young people and parents is by giving them time to prepare for discussions and meetings. (9.24 Special educational needs and disability code of practice: 0 to 25 years)
- Councils are not obliged to provide exactly what each parent requests, but they should be able to explain why they consider a suggested provision meets a child’s assessed needs. Where a parent or young person disagrees with the content of the Plan there is a right of appeal to the Special Educational Needs and Disability (SEND) Tribunal about the educational part of the EHC Plan.
- Where a looked after child would benefit from attending a boarding school, either in the state or independent sector, VSHs and social workers should be proactive in considering this option. (Promoting the education of looked-after children and previously looked-after children – Stat guidance for LAs Feb 2018.)
Education, Health and Care plan (EHC plans).
- An EHC plan should detail the education, health and social care support that should be provided to a child with a special education need (SEN).
- Planning for post-16 pathways should inform an EHC plan. Young people with EHC plans are likely to need more tailored pathway plans. (8.20, 8.21 Special educational needs and disability code of practice: 0 to 25 years)
- For a young person with an EHC plan, a council should ensure that the transition to adult care and support is well planned, is integrated with the annual reviews of the EHC plans and reflects existing special educational and health provision. (s8.59, Special educational needs and disability code of practice: 0 to 25 years)
- A young person with an EHC plan should have a transition plan. It should start in Year 9 and be reviewed as he/she approaches transfer from school to further education.
- Councils should ensure that there are effective systems in place to avoid drift or delay in providing suitable educational provision, including special
educational provision, and unplanned termination of educational arrangements
through proactive, multi-agency co-operation. (5. Promoting the education of looked-after children and previously looked-after children – Stat guidance for Las Feb 2018.)
- D is 17 years old. He lives with his mother, Mrs D, but as a looked after child, the Council has joint parental responsibility. Mrs X is his older sister. She does not live with D and his mother but provides support to the family.
- At the time Mrs X complained to the Council, D was 16. In mid-June 2017, D decided he did not want to attend the school arranged for him to start that September. Mrs X said D’s social worker, SW1, said she would arrange a meeting to address D’s education.
- By 12 July 2017 this had not happened. Mrs X spoke to another social worker to try and arrange this.
- On 18 July 2017 Mrs X complained to the Council. Her complaint was acknowledged on the same day. The note taken of her complaint says she was complaining that:
- ‘…her brother, [D] placement to school B had been withdrawn due to lack of capacity to take care of her brothers needs.’
- there was ‘no future plan’ for D, and
- D’s social worker had not responded to Mrs X’s calls.
- The Council dealt with the above as a Non-Statutory corporate complaint. It did not consider the complaint to have a social care element but instead to be a complaint about D’s education placement.
- Under the Council’s Non-Statutory complaint’s procedure, the Council should have responded by 22 August 2017. It acknowledged her complaint on 30 August 2017, apologising for the delay. It responded on 14 September 2017. It again apologised for the delay.
- The responding officer reminded Mrs X the Council had spoken with her in July 2017. He added that if Mrs X did not agree with the education placement decided upon, she should appeal that decision. He said if Mrs X wanted to discuss the matter further, she could contact him.
- After Mrs X initially complained, the records show that from 20 July 2017 a Council officer, Officer C, contacted a number of schools to find a placement for D. Some schools were full and some said they could not support D’s needs.
- Mrs X asked to be sent any relevant correspondence. A social worker got D’s mother’s consent and this was agreed. Mrs X was clear she thought D required a residential placement.
- On 1 August 2017, a transition meeting was held. Mrs X says Mrs D was told about the meeting on the day so could not attend. The Council say Mrs D was told about the meeting, but not in writing. It does not say when Mrs D was told.
- Mrs X attended in Mrs D’s place. The records show she said: “[D] has the capacity to decide where he goes to school/college and stated that D has said he would like to look at attending a residential college.” Mrs X informed the panel that D had needs, ‘both socially and educationally’. She said the panel told her a residential placement would be out of the question.
- The Council say Mrs X was told the Council had to look at local authority provision first. The records show Mrs X was told of her right to appeal whatever place was chosen.
- On 7 August 2017 Mrs X and D provided information to the Council setting out why they thought a residential setting would be best for D. The letter set out that Mrs D was unable to set boundaries for D. She repeated that the request for the residential placement was not just for educational reasons but for D’s social and emotional needs.
- Mrs X was told the letter would be put before the panel making the decision on 16 August 2017. Mrs X followed this up on 18 August 2017 and was told the panel had requested a bespoke package for D at School E, not the residential option.
- Mrs X objected. She said the system that was supposed to be supporting D to achieve was letting him down.
- On 4 September 2017 School E said it would create a bespoke package to suit D’s needs. The Council has provided notes that say on 11 September 2017, D told a social worker he wanted to go to a residential school. He said this was because he wanted to learn to do things like cook and clean. He was assured School E would provide a package for him. I do not know if Mrs X was present at this meeting.
- Mrs X emailed the Council on 19 September 2017 to find out when D was expected to start at the new placement. Officer C said she had not been able to give Mrs X any information yet because she was waiting for School E to send a proposed timetable for Mrs X to comment on. She apologised for not providing Mrs X with any information earlier. Later that day she sent Mrs X the proposed timetable.
- Officer C emailed Mrs X again the next day. She said:
- D could start after he had a meeting with the school head
- once the school was named on D’s final plan, she could appeal
- Mrs X would not need any further information in the first instance.
- Mrs X and D’s social worker would be included in the email to School E, to arrange a visit.
- There was some delay in providing a start date for the school. Mrs X complained that D should have been given access to education to enable out of school tuition while waiting for a placement. In complaint correspondence with the Ombudsman, the Council said D was offered 30 hours a week through a bespoke timetable, starting on 7 November 2017. It says it did not offer any alternative education from September to November because it knew full time education would be offered.
- Mrs X complained that D’s views had not been taken into account. She said she felt the way D was being treated was ‘disgusting’. In response, Officer C sent Mrs X the start date for D to begin at School E, on 7 November 2017.
- Mrs D and D were also informed of the start date and provided with an offer of a place at School E on 26 October 2017. Mrs X asked how she could appeal.
- In an email to Mrs X on 30 October 2017, Officer C said she:
- attached a letter showing how to appeal the decision.
- attached D’s final EHC plan. (It later transpired this was not the final plan but the plan that had been drawn up for D the previous year.)
- informed Mrs X that D needed to do a mental capacity assessment to ensure he understood that an appeal was being made and that he understood the implications of what was to be appealed. She said the appeal would need to be in D’s name.
- Later that day, Officer C emailed Mrs X again. She said that as D is a looked after child and the Council are his corporate parents, Mrs X would not be able to appeal the decision to send D to School E.
- Mrs X responded. She said she had spoken to the appeals tribunal and had been told D could appeal by himself with the help of his advocate and herself. She said it was bad practice not to have warned Mrs X that D would need a mental capacity test, since the Council had been on notice she would be appealing its decision since August 2017. She said the Council was failing in its duty to a looked after child.
- The Council say it accepts there was some confusion about who should have filled out the relevant forms to undertake a mental capacity test. It accepts this should have been D’s social worker and at the time of the complaint, was arranging that this should be done. The mental capacity test was carried out on 11 May 2018.
- On 6 November 2017 Mrs X asked the Council to provide a final decision letter so she could appeal its decision. She said D would not start at School E. She said she and D felt this was in his best interests as they hoped it might encourage the Council to resolve the situation.
- Officer C said the final decision letter had been sent to Mrs D. I have seen a copy of this. She said Mrs X did not have parental responsibility so it could not be sent to her. Mrs X responded said it should have been clear she was “…acting on behalf of my mother who lacks the ability to liaise with individuals like yourself.’
- The Council says communication with Mrs X stopped when it became aware that Mrs X had left the family home and was no longer a young carer for D and that she did not have parental responsibility for D.
- On 7 November 2017, a social worker visited D. She asked him about his views around a residential placement. He confirmed that he wanted a residential placement. The social worker reported that she felt his views were ‘pre-prepared.’
- On 11 November 2017, a member of the Council’s transition team asked Officer C about any discussions she had been having with Mrs X. Officer C said she “…had not been having discussions with [Mrs X] as she does not have parental responsibility.”
- D remained out of school. A multi-agency meeting was held on 15 December 2017 to discuss the situation. Notes were made about D’s care at home and the level of involvement Mrs X had with him. The records say that it was thought that until the recent summer period Mrs X did not have a lot of involvement. All at the meeting agreed that, ‘this is more a social care issue.’ It was noted that children’s social services had tried twice through the courts to have D removed from Mrs D’s care but were refused. The Council noted it had previously suggested D might like to go into foster care but Mrs X did not like this option.
- In May 2018 D completed his mental capacity test. It was decided that he had capacity to make his own decisions about his education. The records show he felt frustrated that he was being questioned about this. He is reported as saying he:
“…gets angry when people keep asking [me] the same questions over and over again as though [I don’t] know [my] own mind.”
- Officer C maintained she had concerns D could weigh up information about the decision. But the officer conducting the assessment concluded that, “[D] articulates his wishes very well and is able to air his own views as to why residential college is his preferred choice.”
- D was out of school for a term. He agreed to attend School E in the second term, pending his appeal. The appeal was heard in July 2018. He was not successful in obtaining a residential placement, although the family are deciding whether to appeal that decision.
Planning for D
- Mrs X began her complaint because she was concerned the Council had no future plan for D. When the Council responded to my initial enquiries in February 2018 it said that no pathway plan had been completed for D. I was informed a social worker was conducting a pathway plan with D and it would be completed within the next week. I have since seen an outline proposal for D’s year 13 but no pathway plan. Since completing my draft decision, the Council has informed me that there are actually two pathway plans on file for D, one completed in April 2017 and one in March 2018.
- The Council has also provided me with an adult assessment which was completed in April 2018, after D had been attending School E for three months. The document is not a transition plan but the Council say it was unable to provide a solid plan for D until after the result of his appeal hearing. I have not seen any other transition document.
Provision of education
- D was not offered any education from the Council from the beginning of the new term until 7 November 2017, when School E made available a bespoke package of education for him.
- The Council say it did not need to offer him education during this period as it was aware he was going to be offered full time education. The bespoke package at School E provided him with more hours of education per term than the minimum requirement.
- D’s amended EHC plan was issued on 17 November 2017.
- As a looked after child, the Council should be able to show it had been planning D’s transition to further education with the attention to detail that a child with an EHC plan requires. The proposal document I have seen is undated but the Council say it outlines the Council’s plans for his transition from year 12 to year 13. A looked after child looks to the Council for support and there is little evidence this was forthcoming. Mrs X says D felt he was not listened to and I have not seen evidence he was involved in planning around important life-changing decisions.
- Mrs X’s complaint should have been dealt with under the Statutory Complaint’s procedure. She was clearly acting as a significant other and her complaint was about her concerns for a looked after child and her worry that there was no future plan for him. Her complaint did have a social care element. As a looked after child, when the Council received her complaint, it should have paid extra attention to its content. Mrs X was not complaining solely about the education place but about the Council’s failure to act quickly. It was a question of D’s well-being. Mrs X did not complain specifically about the choice of school for D (it had not been chosen at that point). She was concerned there was no ‘future plan’ for a looked after child. The social care element was clear to the panel at the multi-agency meeting in December 2017 and it should have been clear when it was received. This is fault. It meant Mrs X’s complaint was not progressed as quickly as it could have been. It meant that a complaint about a looked after child’s well-being did not have a social care overview.
- Mrs X can not know if D’s complaint would have been dealt with more effectively and have been more in tune with his particular circumstances if the complaint had gone through the right process, and the uncertainty is an injustice.
- Alternatively, even if the Council insists it used the correct complaint’s procedure, it was still at fault. It delayed responding to a complaint that was focused on delay. It did not respond to Mrs X’s complaint until mid-September 2017, until after the school term had started. In the background, the Council was actively trying to find a placement for D but its failure to respond appropriately caused Mrs X distress. This is fault.
Communication with Mrs D and Mrs X
- Mrs D had joint parental responsibility with the Council. She should have been given proper notice of an important meeting to discuss D’s educational future. I have not seen evidence to show she was kept up to date with events, other than a letter informing her of the amended EHC plan in November 2017, after the new school placement had been allocated. I have seen no evidence that her views were sought. She should have been given the opportunity to have some input. Even though D was 16, a parent’s wishes are still relevant to decision making around education. This is fault. The fault might have been mitigated somewhat if the Council had a consistent approach to communicating with Mrs X, who was representing Mrs D. But it did not.
- After involving Mrs X in all the communications surrounding D’s school placement dilemma, including sending her what it thought was his final EHCP, it suddenly reversed its position and would not communicate with her. Internally, the Officer who had been speaking with Mrs X claimed she had not been speaking with her. That was not correct.
- There appears to have been some confusion over whether the Council should have been communicating with Mrs X or not. Even if the Council was unsure of Mrs X’s position, it should not have abruptly cut off the lines of communication between itself and the person that it had clearly accepted, through a course of conduct, was acting as his or his mother’s representative.
- D is a looked after child. The Council was aware there were difficulties at home for D. It had tried twice to take him into care. It had offered foster care as an option for D in August 2017. It was aware there were social care issues. Mrs X made a complaint because she was worried about his future plan. D was out of education and to fulfil its duty to avoid drift or delay in providing suitable educational provision, the Council should have worked with the family. It’s failure to do so is fault.
- This caused Mrs X an injustice. The records show she was clearly trying to do what she could for D. Because of the Council’s muddled and inconsistent approach, she felt, understandably, that her efforts were being purposefully frustrated.
Were D’s views taken into account? – and the mental capacity test
- The Council say that, ‘it is the young person’s voice, and not that of family, that should be listened to.’ It says that, D “…never, at any time, including during the summer holiday period of 2017,” expressed an interest in a residential setting.
- But, Mrs X sent the Council a letter, in August 2017, which stated that she and D felt a residential setting would be best for him. Therefore, he did express a wish to go to a residential setting and he did so during the summer holiday period. If the Council felt the contents of the letter did not actually express D’s views, it should have tried to find out what they were earlier. Engaging with the young person is crucial to acting properly as a corporate parent. I have no evidence it sought his views until 11 September 2017, after the panel had decided on School E and after the beginning of the new term. In November 2017, the Council reported that although he said he wanted to go to a residential setting, it felt his answers were pre-prepared for him.
- Although Mrs X stated that D ‘knew his own mind’, if the Council doubted that, it should have conducted a mental capacity test much earlier. Instead, it waited eight months. This is fault.
- As I have said earlier, Mrs X’s complaint was not just about an education placement. It was about what she perceived as the Council failing in its duty as a corporate parent. The Council should have understood the wider context to her complaint. In August, at the same meeting set up to discuss his school place, it suggested that foster care might be an option for D. The records I have seen do not show this suggestion was made to D. The Council cannot claim to be led by the young person in its decision making and then fail to properly investigate what D’s views were about his education or about his social care needs. This is fault.
- The appeal panel decided that School E was an appropriate choice of school. But in the absence of a proper understanding of D’s views and preferences, it was unable to make an informed decision. Placement is a matter for appeal rights so is not within our jurisdiction, but the Council should have ensured the panel had a full understanding before making its decision.
- I find that the Council’s failure to involve D in decision making about his life or to properly acknowledge his views, did cause him an injustice. He is a young person who was clearly disengaged from the system. Rather than act as a corporate parent, it assumed his views were not his own, before eventually conducting a mental capacity test. This obviously affected him. He was frustrated that the Council, his corporate parent, left him with the perception that it thought he, ‘didn’t know his own mind’.
- In terms of missed education, D missed a term. But it was his choice not to attend the placement arranged for him from 7 November 2017. Mrs X says he took this decision to try and get the Council to resolve the situation. But, while he awaited the result of the appeal, he could have availed himself of the placement arranged for him. He did attend in January 2018.
Failure to provide education
- I consider that it did not act quickly enough to respond to D’s rejection of the original placement. He rejected the placement in mid-June 2017 and the first action taken to look into other placements was on 17 July 2017. It missed a crucial period at the end of the school year to make enquiries. However, it is impossible to tell if it had acted earlier if it would have been able to find a placement sooner. I do not find fault because the records show that as soon as it did begin looking, it made concerted efforts to find D a placement, even if it was not the one he wanted.
- The Council should ensure it provides the education set out in a young person’s EHC plan. It failed to do this from September to November 2017. Its explanation that it did not have to because it was aware D was going to be offered full time education is not sufficient. The official offer of the place at School E was not until 28 September 2017. The full details surrounding the offer, setting out how much education could be provided etc, were not finalised until 16 October 2017. The Council could not be sure the provision laid out in D’s EHC plan would be fulfilled until then. It should have acted to offer D some level of education while he awaited a placement.
Was the Council purposefully obstructive?
- Mrs X felt the Council purposefully placed obstacles in the path of her appealing the decision made about D’s education. She was concerned that when she asked for details about how to appeal the decision she was told D would need a mental capacity test and that she could not appeal the decision because D was a looked after child. It is understandable that Mrs X had these concerns. But I do not find that the Council was being purposefully obstructive. While its actions were not helpful, I do not have evidence there was any intention to make things difficult for her.
- It informed her in August and in September 2017 that she could appeal any decision made. It did not seek to stand in her way. Although she was told at a late stage that the appeal could not be in her name, I do not consider the Council was trying to stop the appeal. D was able to start the appeal process before the capacity test was conducted so the delay in progressing that did not cause an injustice. D was over 16 and as such, it was more appropriate that his appeal should be in his name. It should have been clearer about this but it was not detrimental. Mrs X had a solicitor who could inform her of the correct approach. I do not therefore find that this fault caused her or D an injustice.
- Within one month of my final decision, the Council should:
- Apologise to Mrs D for failing to fully communicate with her around Ds education placement difficulties.
- Apologise to Mrs X for failing to communicate with her consistently around Ds education placement difficulties. The Council should also pay her the sum of £250 to acknowledge the distress and difficulties she encountered trying to express Ds and her wishes in relation to his placement.
- Apologise to D for its failure to plan properly for his future, delaying completing his mental capacity test and its failure to properly involve him in decisions about his education and well-being.
- Apologise to D for failing to provide him with education from the beginning of the school term in September 2017 to 7 November 2017. I have considered our Remedies Guidance and believe payment to D of £300 is appropriate.
- The Council should conduct a review of this case, investigating any social care issues and showing how it has addressed future planning for D. It should provide evidence of this investigation to the Ombudsman.
- Review its approach to communicating with family in cases involving looked after children post 16, so that it is in line with Statutory Guidance. It should show that it has disseminated this learning throughout the Council.
- I have found fault and made recommendations to remedy this fault. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman