Bolton Metropolitan Borough Council (18 014 678)

Category : Children's care services > Other

Decision : Not upheld

Decision date : 09 Jun 2020

The Ombudsman's final decision:

Summary: Mrs X complains that the Council failed to undertake an Education, Health and Care needs assessment for her son, did not investigate a safeguarding allegation she made against his school, and failed to provide alternative education for her son while he was out of school. She says this impacted on her son’s mental health, caused inconvenience, and cost her time and trouble. The Ombudsman does not find the Council at fault.

The complaint

  1. The complainant, who I refer to here as Mrs X, complains that the Council:
      1. failed to undertake an Education, Health and Care needs assessment for her son;
      2. did not investigate a safeguarding allegation she made against the school; and,
      3. failed to provide an alternative education for her son while he was out of school.
  2. Mrs X says this had an impact on her son’s mental health and a wider impact on the family. She says it cost her time and trouble, and caused inconvenience. She also says it had a financial impact because she paid for a private Clinical Psychology assessment.

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What I have investigated

  1. The Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so.
  2. In this case, Mrs X complained to the Council in December 2017 and to the Ombudsman in December 2018. There was a delay in the Council dealing with Mrs X’s complaint. This was partly because the Council decided to wait for the outcome of Mrs X’s complaint to the school before investigating her complaint. I consider this was an appropriate approach for the Council to take.
  3. For this reason, I have decided there are good reasons to exercise our discretion and investigate this complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  4. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

  1. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments 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 focus report: ‘Out of school … out of mind: How councils can do more to give children out of school a good education’, published in September 2011 (subsequently updated).

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What I found

What should have happened

Education, Health and Care needs assessments

  1. The government issued the Special Educational Needs and Disability Regulations (‘the Regulations’) in 2014.
  2. The Regulations say that a council must consult the child’s parent or the young person as soon as practicable after receiving a request for an Education, Health and Care (EHC) needs assessment. After this, the council must decide whether to carry out an EHC needs assessment within six weeks, and must notify the parent or young person it is considering doing so.

Alternative education provision

  1. The Education Act 1996 (Section 19) says that education authorities (councils) must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise.
  2. In 2013, the government published statutory guidance for councils about alternative provision. The guidance refers to children who are absent from school because of illness, exclusion or ‘otherwise’. ‘Otherwise’ is any authorised reason for absence. It is schools that authorise absences, not councils. A council will ask the school for its view on the absence.
  3. The Courts have determined that a council’s section 19 duty under the ‘otherwise’ category is intended to cover any situation in which it is not reasonably possible or practicable for a child to attend school. The Courts have said that if the Local Education Authority has arranged suitable education which is ‘reasonably practicable for the child to enjoy’, the council is not under a duty to provide alternative suitable education simply because, for whatever reason, the child is not attending school.
  4. The Courts have said that it is for the council to determine what is ‘suitable education’. The Courts have said that the question is whether the education offered is reasonably possible or reasonably practicable for the child to access, not whether the parent or child have a reasonable objection to attending that school.

What happened

  1. In November 2017, Mrs X removed her son, D, from primary school. She says this was on safeguarding grounds because of what she calls staff misconduct and abusive practices.
  2. Mrs X complained to the Council and the school. The Council said it could not act on the safeguarding allegation at the time, it had to wait for the outcome of the school’s complaints procedure.
  3. In early December, the Council advised Mrs X that while the school’s complaints procedure was ongoing D should remain in school to minimise any impact on his education. It said parents have a duty to ensure children have access to a suitable education and if Mrs X chose to keep D off school in the meantime, the absence was likely to be unauthorised.
  4. In mid-December, Mrs X met with the Council. They discussed lots of issues to do with the school and D’s education. Mrs X said she wanted D to attend a different school. Mrs X asked whether the clinical psychology report that was being prepared (which she privately commissioned) would be sufficient towards an application for an Education, Health and Care (EHC) plan.
  5. A few days later, Mrs X complained to the Council.
  6. A week later, the Council wrote to Mrs X. It said that school places were available and asked her to tell the Council her preferred choice of school so it could do the necessary checks. It said a clinical psychology report can contribute to the evidence needed for an EHC plan, but it does not necessarily replace this.
  7. At the end of December, Mrs X told the Council that she had been assured the clinical psychology report would detail D’s special educational needs and this would seem acceptable in terms of what was needed for an EHC assessment or application.
  8. In January 2018, Mrs X sent the Council the paperwork to apply for a transfer of schools. Two days later, D started at another school.
  9. In February, the Council sent its response to Mrs X’s complaint.
  10. In May, Mrs X asked that her complaint be dealt with at the second stage of the complaints procedure.
  11. In December 2018, Mrs X complained to the Ombudsman. This was premature because the Council had not finished dealing with Mrs X’s complaint at stage two.
  12. In September 2019, the Council sent Mrs X its stage two response to her complaint. It did not uphold Mrs X’s complaint that her safeguarding allegation had not been investigated. The Council said that the school had dismissed Mrs X’s complaint in full. It found that the incident Mrs X complained of would not warrant a referral to the Local Authority Designated Officer (LADO).
  13. Further, the Council did not uphold Mrs X’s complaint that the Council told her to keep D in school despite her safeguarding concerns. It said the safeguarding issues Mrs X alleged could have been investigated while D continued to attend school.
  14. Two weeks later, the Ombudsman took up Mrs X’s complaint.

Analysis

Education, Health and Care needs assessment

  1. Mrs X complains that the Council failed to undertake an Education, Health and Care (EHC) needs assessment for her son, D (part a of the complaint).
  2. The Council says it has not received a referral or a request for an EHC needs assessment for D.
  3. I find, on the balance of probabilities, that the EHC process was discussed at the meeting in December 2017. This is because the Council’s follow-up letter to that meeting talks about whether Mrs X’s clinical psychology report would be sufficient evidence towards an EHC plan.
  4. I have seen nothing that persuades me that Mrs X actually requested an EHC needs assessment from the Council. I find that she talked about what might be needed for an EHC plan, but did not specifically request an EHC needs assessment. For this reason, I cannot find fault with the Council.

Safeguarding allegation

  1. Mrs X complains that the Council did not investigate a safeguarding allegation she made against the school (part b of the complaint).
  2. Mrs X complains that the Council told her in November 2017 that it could not do anything about her safeguarding allegation at that time, that it had to wait for the outcome of the school’s complaints procedure.
  3. I do not find fault for this. I find that this was the appropriate action to take.
  4. Mrs X complains that the Council told her if she was unhappy with the outcome of the school’s complaints procedure, she could contact the Council again. She says she did this but had no response.
  5. I do not agree with Mrs X. The Council’s stage two investigation clearly addresses the part of her complaint that her safeguarding allegation was not investigated.
  6. The Council found that the school’s actions would not warrant a referral to the Local Authority Designated Officer (LADO).
  7. I have seen nothing that persuades me there was a safeguarding concern that meant the Council should have taken any action. I find that the Council did investigate Mrs X’s safeguarding allegation.
  8. For these reasons, I do not find the Council at fault.

Alternative education

  1. Mrs X complains that the Council failed to provide an alternative education for her son while he was out of school (part c of the complaint).
  2. The Council says it discussed the reason D was out of school with the Safeguarding in Education Officer, who determined that it was not unsafe for D to attend school. The Council says it was Mrs X’s choice to remove D from school, so it had no duty to provide alternative education.
  3. The law says councils have a duty to provide alternative education where a child is absent from school because of ‘illness, exclusion or otherwise’. ‘Otherwise’ is any authorised reason for absence.
  4. In this case, the Council warned Mrs X that if she kept D out of school it would likely be an unauthorised absence. Therefore, the Council did not accept that Mrs X’s reason for keeping D out of school was valid. For this reason, I find that D did not fall into the ‘otherwise’ category. Therefore, I do not find that the Council had a duty to provide D with alternative education for the 21 days he was out of school.
  5. I am satisfied that the Council discharged its duty by considering the allegations (by discussing it with the Safeguarding in Education Officer). The Council was satisfied D was safe at the original school. This is in line with the law.
  6. Further to this, I find that the Council then acted promptly on Mrs X’s request to change schools. This ensured that D was not out of school for a lengthy period. The Council offering another school place is not a sign that it owed a duty to provide D with alternative education.
  7. For these reasons, I do not find the Council at fault.

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Final decision

  1. I have completed my investigation and I do not uphold Mrs X’s complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman

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