Decision : Upheld
Decision date : 19 Jan 2021
The Ombudsman's final decision:
Summary: There is no evidence of fault in how the Council managed the educational provision for a looked after child, Y. There was a delay in assessing Y’s Special Educational Needs, however this did not cause an injustice.
- The complainant who I shall call Y’s is represented by an advocate who I shall call Mr C. Mr C complains that the Council failed to properly manage Y’s educational provision, which meant she had to repeat a school year. My C says this has had a negative impact on Y’s education.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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
- As part of my investigation I:
- Considered Mr C’s complaint and communicated with him about it.
- Considered the Council’s response to my enquiry letter and information it provided.
- Considered relevant guidance.
What I found
Looked after children
- 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.
- 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.
- All looked after children should have a Personal Education Plan (PEP), which is an integral part of the child’s care plan. The PEP should contain short and lon-term education targets and performance against those targets.
- 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.
- 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.
- Children with complex needs may require an Education, Health and Care plan (EHC plan), which details the support they must receive in school.
- An EHC plan is a legal document which sets out a description of a child's needs (what he or she can and cannot do). It says what needs to be done to meet those needs by education, health and social care.
- The responsibilities of the Council, settings and partner agencies are set out in the Children and Families Act 2014 (the Act) and associated Regulations and statutory guidance, the SEN Code of Practice 2015 (the Code).
- Councils are responsible for a child or young person if they are in the local authority’s area and identified by the authority as someone who has, or may have special educational needs (SEN), or brought to the authority’s attention by any person as someone who has or may have SEN.
- Councils must decide whether to carry out an EHC needs assessment of the child or young person within six weeks and must notify the parent or young person it is considering doing so.
- Y is a looked after child who lives with foster carers. Y was taken into care due to neglect and concerns relating to abuse and receives therapies for her early negative experiences.
- In 2016, Y started at a mainstream primary school. I shall refer to this School As School A.
- In May 2018, a looked after child meeting was held and Y reported that she was enjoying her time at School A.
- In September 2018 Y started year 6 at School A. She would have therefore been due to transition to secondary school in September 2019.
- In October 2018, the virtual school head chaired a meeting to review Y’s PEP. Attendees included Y’s teacher a social worker and her foster carer.
- The PEP shows that Y had become anxious about attending school A, and this was having a negative effect on her behaviour. Y said she did not want to attend secondary school the following year, and that during a recent visit to a secondary school she became distressed.
- Y’s foster carer expressed concerns about her transitioning to secondary school and thought another year might help her deal with what was happening in her therapy sessions. Y’s foster carer said that Y would be happy to stay at School A for an additional year and repeat year 6.
- During the meeting it was agreed that it was in Y’s best interests to defer her transfer to secondary school for a year, but Y’s views should be heard before a final decision is made.
- During the meeting it was also agreed that an EHC referral should be made.
- Records show a social worker met with Y, who said she was happy to repeat year 6 at School A. Records show that agreement was subsequently reached that Y would repeat year 6 at School A, and that an EHC referral would be made.
- In July 2019, the Council received an EHC referral. It subsequently made enquiries with professionals in August.
- In September 2019, Y started then new school year at School A, repeating year 6.
- The Council issued a draft EHC plan for Y in November 2019, and a final version was issued the following month.
- The EHC plan named School A as Y’s placement and detailed the support she should receive in classes there.
- The plan also detailed the support that Y would need at her new secondary school.
- In December 2019, the Council held a planning meeting where suitable secondary school placements for Y were discussed.
- Y’s foster parents preferred placement was a special school, which I shall refer to as School B. However, the Council concluded that School B would not be suitable because an Ofsted inspection in 2018 had judged the school to be inadequate.
- The Council continued to discuss alternative school placements with Y’s foster carer and visits took place. In February 2020, the virtual School Arranged a visit to a mainstream secondary school but concluded that a mainstream environment could not meet Y’s needs.
- The virtual School Arranged a visit to School B with Y’s foster carers. The Council recorded that there was continued improvements at the school since Ofsted’s last inspection.
- The Council subsequently concluded that School B could meet Y’s needs and would be the best option for her moving forward.
- In July, Y started attending School B as part of a transition process. In September 2020, Y started year 7 at School B.
- Mr C complains that the Council failed to manage Y’s educational provision. He says its decision to allow Y to repeat year 6 meant she spent a year in an unsuitable placement, negatively impacting her education. Mr C feels the Council made the decision because there was not a suitable secondary school placement available for Y.
- The decision to defer Y’s education was made in a meeting to discuss her PEP. The Councils’ virtual school head consulted with her School And her carers who agreed that she should repeat year 6.
- The Council concluded that before a final decision be made, Y’s views should be consulted. Records show that a social worker subsequently discussed the matter with Y before the decision was finalised.
- I do not consider there to be any evidence of fault in how the Council reached its decision. It consulted with all the relevant parties, and considered the views of Y. There is no evidence to suggest the Council made the decision because it was unable to source suitable education provision.
- Mr C strongly disagrees with the decision. However, the Ombudsman cannot question the merits of a decision that was reached without fault.
- During the October PEP meeting, it was decided that an EHC referral should be made. The referral was not received until some eight months later.
- I am satisfied that at this point the Council were aware that Y may have special educational needs, and it therefore should have decided whether to carry out an EHC needs assessment within six weeks. The Council did not carry out this assessment until it received a referral in July, some nine months later. This is fault.
- The Council’s failure to carry out an EHC assessment sooner, meant Y’s final plan was delayed.
- Where a council fails to make provision because of delay in issuing an EHC Plan, that lost provision is injustice to the child.
- Where delay by a council prevents a parent or carer appealing to the SEND Tribunal and the appeal is successful, the child also suffers injustice in the form of lost provision he or she would have had earlier.
- In this case Y was already attending the school named in her EHC plan, and no appeal to the SEND Tribunal was made. I therefore cannot conclude that Y lost out on any provision. For this reason, whilst I uphold this element of Mr C’s complaint, I do not conclude that Y suffered an injustice.
- I have concluded my investigation on the basis that whilst there was fault this did not cause an injustice.
Investigator's decision on behalf of the Ombudsman