Decision : Upheld
Decision date : 24 Sep 2018
The Ombudsman's final decision:
Summary: Mrs X, who is foster carer for child Z, complained the Council failed to consult her or Z about which secondary school Z should go to. The Council avoidably delayed preparation for Z’s school transition and did not ask Z’s views before accepting the school offered. It has agreed to apologise and pay Mrs X £100 and Z £150 for uncertainty and distress caused them by this fault. It has also agreed to review its delegated authority scheme to ensure clarity for Z and other looked after children in future decisions.
- Mrs X, who is foster carer for child Z, complained the Council, which has parental responsibility, failed to consult with her or Z about which secondary school Z should go to.
- I have investigated whether there was fault in how Nottingham City Council consulted with Mrs X and Z about their wishes for Z’s choice of secondary school before deciding Z should attend school B.
- I have not investigated any part of Mrs X’s complaint concerning the naming of school B on Z’s EHC plan for the reasons set out in paragraph 59.
The Ombudsman’s role and powers
- 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)
- A child with special educational needs may have an Education, Health and Care (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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate a complaint if someone has appealed to a tribunal about the matter. (Local Government Act 1974, section 26(6)(a), as amended)
- 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)
- 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.
How I considered this complaint
- I spoke to Mrs X about her complaint and considered information she provided.
- I asked Nottingham City Council questions and considered its reply and evidence it provided. I also considered its childcare procedures.
- I made third party enquiries of another council, Council B, and considered information it provided.
- I read Statutory Guidance - Promoting the education of looked after children
- I reviewed the Ombudsman’s guidance on remedies.
- I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered Mrs X’s comments before making my final decision.
What I found
- Mrs X is a foster carer for child Z who is subject to a Care Order. Nottingham City Council (‘the City Council’) is Z’s corporate parent.
- Z has special educational needs. Because of where Mrs X lives, another council (Council B) maintains Z’s Education, Health and Care (EHC) plan setting these needs out. Until September 2018 this plan named a mainstream primary school as Z’s education setting.
- During school year 2017 to 2018 the City Council was responsible for Z’s application to Council B as admissions authority for secondary schools.
Law and Guidance
- A child is ‘looked after’ by a council if a court has granted a care order to place it in care. A council looking after a child should do at least what any good parent would do to promote their education. Statutory Guidance says decisions about choice of school should be based on discussion between the child’s social worker, the child and their carers. It says the child's permanence plan should explain how much influence the foster carer should have about the choice of school as well as other key decisions about the child’s life.
- Councils responsible for looked after children must appoint a virtual school head. This is the person in charge of promoting educational achievement for children looked after by the council. The virtual head should work with social workers to ensure they understand the admission process as it effects each child.
- Guidance says councils should try to choose schools judged by Ofsted as ‘good’ or ‘outstanding’ for looked after children. When considering a school judged by Ofsted as ‘requiring improvement’, virtual school heads and social workers should have evidence it will enable the child to make progress.
- Councils should take into account the looked after child’s wishes and feelings in decisions about their education. They have to decide if the child is able to express a view about this.
- The City Council’s ‘Delegation of Responsibility to Foster Carers’ policy says that longer-term decisions such as school choice “will require skilled partnership work to involve the relevant people”.
- The Council’s delegated decision making plan for Z, updated in August 2016, sets out who should make particular important decisions about Z’s life. Explanatory notes for the plan say where more than one person is shown as able to make a decision, the plan should explain each person’s role.
- Z’s plan records that responsibility for decisions about “Changing a school” should be shared between the foster carer, social worker and virtual school. There is no accompanying note to explain each person’s role in taking this type of decision.
- At a looked after child review meeting in September 2015, the City Council said it needed to plan ahead to ensure Z had a smooth transition to secondary school, due to happen in September 2018. There is no record of action taken by the City Council to plan ahead at this time.
- The City Council’s case notes record the importance of planning ahead was raised again at a placement meeting in January 2016 and child in care meeting in December 2016. Records show both meetings asked the social worker to begin discussions about appropriate school provision and transition. Again, there is no record of action taken by the City Council to plan ahead.
- At a statutory visit in January 2017 Mrs X said she was worried about Z’s school placement and thought a named, mainstream, independent school would be the best placement for her. The meeting concluded the social worker should liaise with education colleagues about this and other options promptly. Again, there is no record of any action taken by the City Council to plan ahead.
- In May 2017, a case note shows the social worker was asked to work with Mrs X to identify the most appropriate school for Z, with help from the virtual school head. There is no record of action taken.
- In June 2017 at a statutory visit, notes show the City Council wanted to move responsibility for Z. It decided its disabled children team should now lead, instead of its children in care team. The disabled children team started to support Z from September 2017 onwards. Z’s new social worker promptly contacted the virtual school head to arrange for a personal education plan meeting to plan for Z’s move to secondary school.
- The planning meeting happened in October 2017 involving Mrs X. Mrs X was concerned with the lack of preparation. She understood discussion was taking place with school B (a specialist school). She did not think school B was suitable to meet Z’s needs. She again mentioned the independent school. The meeting also considered the option of school C (a mainstream academy school). The meeting recommended Council B’s EHC team start consulting a range of schools to see if they could meet Z’s needs. School C was asked if it could meet Z’s needs as part of this consultation.
- In October 2017 school C replied to the consultation to say it could not meet Z’s needs.
- Case notes for December 2017 show discussion took place between the social worker and the virtual school head about the suitability of School B for Z. The notes refer to Mrs X’s continued preference for Z to go to an independent school. They refer to Mrs X’s concerns that school B’s buildings were outdated and the school required improvement according to Ofsted. The officers therefore knew Mrs X did not consider school B could adequately meet Z’s needs.
- The social worker and virtual school head agreed school B was an appropriate placement for Z in January 2018. They took this decision, having considered it was not Mrs X’s preference and that Ofsted had said it required improvement. Notes show officers considered the school was best placed to meet Z’s needs, was making improvements and acting on Ofsted’s recommendations. They considered Mrs X’s preferred independent school option would not meet her best interests because Z would have to move schools again at 14.
- Council B gave Z a place at school B in January. The City Council told Mrs X it would not, as Z’s corporate parent, appeal this decision to the SEND tribunal. It said this was because it was satisfied School B could meet Z’s needs.
- On 31 January 2018, Council B issued a notice of amendment to Z’s Education, Health and Care (EHC) plan naming school B as Z’s provision from September 2018 onwards. This letter gave a right to appeal to the SEND Tribunal. Mrs X says she did not get the letter. I have only seen a copy sent to the City Council as Z’s corporate parent.
- A planning meeting for Z in February 2018 involved Mrs X. She argued school B could not meet Z’s needs. Officers advised Mrs X she could not appeal the decision to name school B because the City Council had accepted the place. Mrs X said that Z’s wishes had not been considered and should be respected by involving an advocate.
- During May 2018, at Mrs X’s request an independent advocate worked with Z. The advocate noted Mrs X should be commended for making a referral and trying to give Z a voice in the decision about her schooling. The advocate said Z’s views about preferred school were not sufficiently consistent to be used as a basis for a decision.
- A meeting in June 2018 between the virtual school head and social workers looked again at Z’s situation. It found that Z had not been told she was going to school B, was very anxious about the move and Mrs X was very unhappy about the plan and wanted the City Council to apply for Z to have a place at school C.
- The meeting recommended the social worker should meet Z, explain what was happening and try to plan for a smooth transition. If Mrs X and Z still wanted a place at school C then the social worker should seek views from appropriate professionals and decide whether or not to apply. The place at school B should be kept open.
Mrs X’s complaint to the Council
- Mrs X had, by now, complained to the City Council about the situation. She said Z had missed out on knowing about the school and this had caused Z upset and distress. In its stage 1 reply in July 2018 it said:
- The Council was Z’s corporate parent, responsible for the choice of school
- School B could best meet Z’s needs and School C said it could not meet Z’s needs
- Z had not been consulted by her previous social worker. It apologised for this. An advocate had worked with Z to ascertain her view.
- The advocate had found that because of Z’s ability to make decisions for herself, adults needed to make decisions in her best interests.
- As a looked after child, the City Council was ultimately responsible for decisions about Z’s education as it had parental responsibility.
- The City Council’s delegated authority plan for Z said the decision to change schools should have been made jointly by the foster carer, social worker and virtual school. The plan does not explain this further. It does not clarify each person’s role as required by the City Council’s explanatory note. This lack of clarity is fault that has led to uncertainty for Mrs X about her involvement in this important decision.
- The City Council recognised the need to plan ahead for Z’s transition to secondary school as far back as 2015. Case notes show repeated reference to the need to plan ahead during 2016 and early 2017 without evidence of any consequential action.
- There is no evidence the City Council took action to prepare for the move of schools until September 2017 when the disabled children team took over responsibility for Z. The lack of preparative action before then is fault. This led to uncertainty for Mrs X and Z although I cannot say that all of Z’s uncertainty about school transfer was the result of this fault. Moving schools can be unavoidably stressful, but this lack of planned for preparation and communication caused avoidable additional uncertainty.
- Since September 2017 the City Council worked with Mrs X to discuss future plans for Z. Mrs X and the City Council have different views about which school was appropriate. The City Council’s social worker discussed these concerns with the virtual head. They considered the Ofsted rating and Mrs X’s concerns about school B and decided, despite these, that it was the appropriate placement. Z’s plan said the decision about a change of school should be made jointly. In practice, the social worker and virtual school head took the decision, having regard to Mrs X’s objection but coming to a different view. Mrs X says only one officer had met Z and then only for a very short time. The Tribunal will be able to consider the appropriateness further.
- A jointly made decision does not have to be a consensual one. With one out of three decision makers coming to a different view, the City Council’s decision to accept Z’s placement was made without fault. It had regard to Z’s best interests, and considered Mrs X’s objections before coming to the decision.
- However, the City Council took no steps to involve Z in decisions about her education until May 2018, well after Council B had offered the school place. This was fault. It then belated appointed an advocate because Mrs X asked it to do so to ascertain Z’s views. By then a decision had already been made about Z’s placement.
- Given the inconsistent findings from the advocacy work with Z, it is unlikely earlier advocacy would have led to a different decision. However, failure to carry this out in a timely way increased Mrs X’s and Z’s uncertainty about what was happening.
- The City Council decided not to investigate Mrs X’s complaint at stage 2. This was not fault as the Council considered its ability to achieve the outcome Mrs X wanted from that complaint.
- Mrs X is now appealing to the SEN Tribunal which can consider the naming of school B in Z’s EHC plan.
- Within one month of my final decision the City Council will:
- Apologise to Mrs X for uncertainty and distress caused by its delay in starting discussion about Z’s secondary school placement.
- Apologise to Mrs X for not setting out the respective roles of each decision maker concerning Z’s school placement in her delegation plan.
- Apologise to Z for not asking her views about her school placement until May 2018, after it had already arranged for her to attend school B.
- Review its procedures to draft delegation plans for looked after children so these are clear about individual responsibilities where these are shared across several people.
- Develop a programme to review all current delegation plans (for example through the looked after child review process) to ensure individual responsibilities are clear.
- I have completed my investigation. I have found evidence of fault and injustice. The Council has agreed actions to remedy this injustice and prevent its reoccurrence.
Parts of the complaint that I did not investigate
- I have not investigated whether or not school B was appropriate for Z’s needs. Mrs X has appealed to the Tribunal about this matter. Because Mrs X has lodged an appeal, the law says the Ombudsman cannot investigate this. Only the Tribunal can direct a council to change the school named in an EHC plan.
Investigator's decision on behalf of the Ombudsman