Decision : Upheld
Decision date : 05 Mar 2021
The Ombudsman's final decision:
Summary: There was fault in how the Council arranged alternative education provision for a looked after child, after problems with their behaviour led to exclusions and a foster placement broke down. The Council has agreed to make a suitable payment to remedy the injustice this caused.
- The complainant, who I shall call X, is being represented by an advocate, who I will Call Mr C. Mr C complains that the Council failed in its duty to provide X with a suitable school place after problems with his behaviour led to exclusions and after a foster placement broke down.
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)
- 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 considered the information and documents provided by Ms C and the Council. I communicated with Mr C about the complaint.
- I have considered the relevant statutory guidance, set out below.
- I also sent a draft version of this decision to both parties and invited their comments.
What I found
Duty to arrange education
- Under section 19 of the Education Act 1996, if a child of compulsory school age (between 5 and 16 years old) cannot attend school for reasons of illness, exclusion from school or otherwise, the council must arrange to provide ‘suitable education’. This can either be at school or elsewhere.
- The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs they may have.
- The education arranged by the council must be full time, unless, in the interests of the child, the council considers part time education more suitable. This would be for reasons relating to the child’s physical or mental health.
- The council’s duties under section 19 apply to all children of compulsory school age.
Looked after children
- Section 17 of the Children Act places a general duty on every council to safeguard and promote the welfare of children in need within its area by providing services appropriate to those children’s needs. A child who has been in the care of the council for more than 24 hours is known as a looked after child (LAC).
- The Care Planning, Placement and Case Review Regulations require the council responsible to undertake a single assessment as the first step in the care planning process. Following that assessment, the council will produce a care plan to set out how it will meet the child’s needs.
- The Regulations specifically requires the care plan to include a personal education plan (PEP). The PEP (pre-school age to 18) is an evolving record of what needs to happen for LAC to enable them to make at least expected progress and fulfil their potential. Social workers, Virtual School heads and Independent Reviewing Officers, school admission officers and special educational needs departments should work together to ensure that appropriate education provision for the child is arranged.
- Social workers and Virtual School heads should ensure PEPs are reviewed each school term.
- The Virtual School is a specialist education team within social services to help children and young people with their education. The school does not exist as a building, and children do not attend it. It provides access to specialist services and gives advice and guidance on education, training and employment, as well as providing opportunities for out of school learning and leisure.
- X became a Looked After Child (LAC) at an early age, and for most of his life has remained in the care of the same Foster Carers.
- In September 2018, X started his last year at a mainstream primary school. I will refer to this school as School A.
- In January 2019, X’s behaviour at school deteriorated and he was placed on a reduced timetable.
- The Virtual School contacted School A and discussed a timetable that would better suit X. The Virtual School also asked School A to complete a referral for an Education Health and Care (EHC) plan.
- In February 2019, a further PEP review meeting was held. X’s behaviour had deteriorated in the previous weeks after X had faced a bereavement in his family.
- During the meeting it was decided that after the half term break, X would spend three days a week at School A and two days at Forest School.
- In late March X refused to attend School A and School B. The Council reviewed X’s PEP and discussed alternative provision. It was decided that they would trial X at a different Forest School. The Council would also provide a home tutor.
- In late August, X’s placement with his foster parents broke down and he was moved to a children’s home.
- In October, the Council issued X’s final EHC plan. It named a mainstream school placement, which I shall refer to as School B.
Complaint to Council
- Mr C complained to the Council on X’s behalf. At the end of November 2019, the Council issued its investigation report at stage 2 of the statutory children’s complaints process.
- Mr C’s complained about several issues relating to X’s care and support. This included a complaint that the Council had failed to provide X with a sufficient education.
- The investigation upheld several of Mr C’s complaints. It found that the Council had failed to take prompt action to ensure X had a suitable education at the point his placement broke down in August 2019.
- The Council accepted the findings of the stage 2 investigation and a recommendation that the Council should ensure X received the support he requires, including access to education.
- The Council apologised to X for the faults identified at stage 2 of the complaints process and offered him a payment of £500 to remedy the distress its faults caused.
Events since complaint
- Records show that in August 2019, the Council started consultations with secondary schools for X to attend.
- At the end of October, X moved in with a temporary foster carer in a different part of the County.
- The Council contacted its tutor provider to arrange home tutoring for X. This service started in early November.
- The Council started consulting with schools in X’s new location. Records show three schools were consulted with, but all declined a place for X, with the last school providing a response to the Council in mid-December.
- Two days later, X returned to live with his original foster family. The Council therefore started the consultation process again, contacting three schools in X’s area.
- The Council arranged a home tutor for X, providing a total of nine hours tutoring per week.
- At a PEP meeting in February, participants acknowledged that X was not in school and that this was affecting his behaviour, which meant he struggled to engage with his home tutoring.
- Participants at the PEP discussed the potential of increasing the tutoring. However, concluded that the provision should remain unchanged, because X was not fully engaging with the tutoring already being provided.
- Two weeks later, the Council did increase X’s tuition to a total of 12 hours, consisting of three-hour sessions four times per week.
- In early March, the Council held a review of X’s EHC plan. It was noted that X was keen to return to a mainstream school, but concerns were raised that his needs may not be met in a mainstream environment. It was therefore agreed that parallel planning should be explored for both mainstream and special schools explored.
- X was keen to attend school. The Council concluded that he should start attending School B three mornings per week, with support from his home tutor. However, because of complications arising from the Covid-19 pandemic this plan could not be progressed, and online learning continued.
- In July, after some Covid-19 restrictions had been lifted, X attended School B two morning a week with the support of a Learning Support Assistant.
- The Council ended X’s home tutor service at the end of the school year. The Council offered X the opportunity to attend a summer school, but this was declined by his foster carers.
- The Council continued to consult with schools, but placements were either declined by the school or by X or his carers considered them to be unsuitable.
- X’s foster carers were determined that a placement would be found for X and were proactive. The Council consulted with a further three schools, including a special school which was identified by X’s foster carers, and which was due to open in early November 2020. I shall refer to this as School C.
- In Early October, School C agreed a placement, and X started there in November.
Consultation with schools.
- The Council started consulting schools in August. This was disrupted when X was moved to a different part of the County, and the Council therefore had to consult with different schools.
- However, upon X’s return to his long-term foster placement, records show the Council were proactive in seeking a school placement and consulting with those placements.
- There was a delay in X starting his school placement in 2020. However, this was due to School C being a new school which was not ready to open until November 2020.
- Having considered this element of the complaint, I do not find fault in how the Council carried out its consultation with Schools for X.
Education provision between August 2019 and November 2019.
- The Ombudsman does not normally re-investigate matters that have been investigated through the statutory complaints procedure unless there is evidence of flaws in the investigation process which are likely to have affected the outcome.
- In this case I consider that overall, the investigation carried out at stage 2 of the process was comprehensive. Therefore, I decided not to reinvestigate the complaints.
- In this investigation, I have however considered the remedy offered by the Council.
- The stage 2 investigation found that the Council had failed to ensure that X has suitable education at the point his placement broke down in August 2019.
- Whilst the Council acknowledged the distress that this caused X, I am not satisfied that it properly acknowledged the impact that the lack of suitable education provision would have had on X during this period. This is fault.
Education provision between November 2019 and December 2020.
- Shortly before the completion of the stage 2 complaints process, X moved to a new foster placement in a different part of the County.
- The Council arranged for home tutoring for X while he was at his new foster placement. However, there is no record of the how the Council assessed X’s suitability of this home schooling or what level of tutoring would be provided. This is fault.
Education provision between November 2019 and July 2020.
- In January, when X moved back to his long-term foster carer placement, the Council arranged nine hours home tutoring per week.
- The Council held meetings every term to discuss X’s PEP and during these meetings his education provision was discussed. Records show that the Council discussed the level of provision X was receiving and considered increasing it.
- In February, the Council discussed increasing X’s provision. However, it concluded that this would not be appropriate at the time due to X’s lack of engagement it was initially decided it should remain at the same level.
- A subsequent review concluded that the provision could be increased to 12 hours per week and this increased level of provision started in March.
- Around the same time, he Council also planned for X to attend School A three times a week as part of his transition into secondary education. However, this was delayed until July due to issues arising from the Covid-19 pandemic.
- X’s home tutoring continued until the summer break in July.
- Having considered X’s education provision during this period, whilst I acknowledge that the level of provision offered was relatively low and did not amount to a full-time education, I do consider that the Council reviewed the provision appropriately and has justified its reasons for providing a part time education. I therefore do not find fault in how education was arranged during this period.
Education provision between September 2019 and November 2020.
- During the summer months the Council continued to consult with several different schools, including School C which was not due to open in November.
- X started at School C in mid-November, in the middle of the school term. However, I have not seen any records which suggest that the Council provided any home schooling from the start of the school year until he started at School C. This is fault.
- Where fault has resulted in a loss of educational or SEN provision, we normally recommend a remedy payment to acknowledge the impact of that loss.
- Having accounted for school holidays, it seems that there is a total period of approximately five months where either suitable provision was not properly assessed, or there is no evidence of any provision being put in place.
- Having considered the factors in this case I have concluded that a payment of £1350 should be made to X to remedy the loss of educational provision for a total period of five months.
- This payment should be used towards X’s education. Due to X’s age, I consider it appropriate that the Council should hold a discussion with X’s foster carers about how the payment should be best spent.
- The Council has agreed that within two months of the date of my final decision it will offer to make a payment to X of £1350. Prior to the payment being made the Council will speak with X’s foster carers and reach an agreement on how this payment should be spent for the benefit of X’s education.
- I have concluded my investigation with a finding of fault causing an injustice.
Investigator's decision on behalf of the Ombudsman