Summary: The Ombudsman upholds Mr X’s complaint about the lack of nursery provision for his son Y when he was a looked after child. The Council failed to take action to arrange transport to Y’s existing nursery or to identify an alternative nursery for him to attend. It also did not complete a Personal Education Plan (PEP). As a result, Y lost an opportunity to receive early education, including support with his speech and building relationships with his peers. The Council agreed to apologise to Mr X, make a payment to him and to Y, and review its procedures to ensure timescales for PEPs are clear.

The complaint

1. Mr X complains the Council failed to make provision for his son, Y, to attend nursery and receive speech and language therapy between January and April 2016. Mr X says this had a lasting impact on his son, who remains behind his peers at school and with his speech.

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The Ombudsman’s role and powers

2. 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)
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. 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)

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How I considered this complaint

5. I have considered the complaint made by Mr X and the documents he provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. I gave Mr X and the Council an opportunity to comment on my draft decision and I considered their responses.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

9. A looked after child is a child in the care of a council either through a Care Order made by the Court or through a voluntary agreement with their parent to accommodate them. They may be looked after by other family members, by foster carers or in a children’s home.
10. Councils have a duty under the Children Act 1989 to safeguard and promote the welfare of any children looked after by them. This includes a specific duty to promote the child’s educational achievement, wherever they live or are educated.
11. The Council’s duties are set out in the statutory guidance ‘Promoting the education of looked after and previously looked after children’.
12. The guidance says when a child becomes looked after, the social worker should do everything possible to minimise disruption to the child’s education, whatever the child’s age.
13. All looked after children from pre-school to age 18 should have a Personal Education Plan (PEP). This is a record of what needs to happen for looked after children to fulfil their potential in education. PEPs should be initiated as part of the care plan before a child becomes looked after. Where a child becomes looked after in an emergency, the PEP should be initiated within ten working days. PEPs should be available for the first statutory review meeting and should be reviewed at each subsequent statutory review.
14. The Council’s PEP procedure for pre-school children says a social worker should contact a carer to arrange a date and time for the PEP meeting. It does not give a timescale for when this should happen. The Council’s guidance for other age groups says the PEP meeting should take place within 20 days of the child coming into care. The Council’s online procedures say the first PEP should be in place as part of a care plan within ten working days of a child becoming looked after.

What happened

15. Mr X’s eldest child, Y, attended nursery three days a week. His speech was delayed, and the nursery was supporting him with this.
16. Mr X’s child became looked after in January 2016 and was placed in foster care about 20 miles away from home.
17. The first statutory visit to Y at his foster carer’s home took place the week he became looked after. The social worker noted a nursery was being sought for him, which would support his speech and social skills. The records do not say who was seeking this provision.
18. At the Looked After Child medical, the doctor recommended Y receive further support for his speech and made a referral to the appropriate service.
19. Y had contact with his parents every weekday for two hours. Start times varied between morning and afternoon.
20. During the second statutory visit, in early February, the social worker noted that due to the high levels of contact Y was not getting any stimulation from nursery which she felt would benefit him. She also noted she was awaiting further information about speech therapy for him.
21. During a contact in early February, Mr X told the supervising worker that Y’s language was a little behind but he had been improving quickly when he was in nursery.
22. At a Looked After Child Review held on the same day, it was noted that Y was not attending nursery. The review noted this needed to be looked into as he needed some educational stimulation and to build relationships with his peers. The review recorded that nursery had been supporting Y with his speech before he became looked after. The review also noted the social worker had not yet arranged a PEP meeting.
23. The foster carer agreed to look into Y attending a local nursery with the aim this would be arranged around the contact with his parents. The social worker agreed to contact the named nurse for Looked After Children about speech therapy. The review recommended a PEP meeting be held within four weeks.
24. Two weeks later, during another contact, Y’s parents said they wanted him to go back to the nursery near their home. They were concerned any more delay may affect his reintegration with his peers when he returned to their care.
25. The following day, Y’s mother said she and Mr X would be willing to sacrifice a day of contact to allow Y to return to his nursery for one full day a week. They intended to speak to the team manager about this.
26. Following a home visit the following week the team manager noted Y would be attending nursery three days a week once he returned to the care of his parents. However, there is no recorded response from the manager to their request for Y to start attending nursery again while he was still being looked after.
27. At the end of February, the social worker discussed nursery provision with the foster carer during a statutory visit. The foster carer agreed Y needed to attend but said she would need help with getting him there because of the distance. The social worker noted that if transport wasn’t available then a local nursery needed to be identified as soon as possible. She also noted Y’s health visitor had made a referral for speech therapy.
28. During a contact later that week, Mr X reiterated the family would be willing to give up one contact session a week to enable Y to attend nursery. However, he only wanted Y to return to the nursery he had previously attended.
29. In mid-March, during a statutory visit to the foster carer, the social worker noted she was awaiting information about Y’s speech delay and a hearing test which another health professional had suggested.
30. Y returned home in April and immediately returned to nursery three days a week.
31. Following Y’s return home, there was some confusion over who was arranging an appointment with the speech and language therapy team. Both the social worker and Y’s mother had been sent a consent form to sign. The social worker contacted the health visitor who agreed to clarify what needed to happen next.
32. The case continued and Mr X eventually complained to the Council in April 2018. The Ombudsman has previously investigated the Council’s handling of Mr X’s complaint and found fault.
33. As part of the previous investigation, the Ombudsman asked the Council to consider Mr X’s complaint about Y’s nursery. The Council said it would not investigate. It told Mr X, and later the Ombudsman, that Y’s attendance at nursery and need for speech and language therapy were discussed and action was taken. It said the records did not suggest there had been any failings by the Council and the social worker had now left so it could not discuss the matter further with her.

Analysis

34. Although the events Mr X complains about happened more than 12 months ago, I decided to exercise discretion and investigate the complaint. Mr X chose to wait until court proceedings had finished before making his complaint to the Council. The Ombudsman has previously investigated the Council’s handling of Mr X’s complaint and found fault. The Council refused to investigate this part of Mr X’s complaint. There is evidence Mr X raised his concern about Y’s nursery attendance with the Council at the time. I therefore consider there is enough justification to investigate now.
35. Some disruption to Y’s attendance at nursery was unavoidable when he became a looked after child, particularly as he was staying with a foster carer some distance from the family home. However, it is clear from the records that Y’s parents, foster carer, social worker and independent reviewing officer all agreed that it would be in his best interest to attend nursery. Despite this, there is no evidence the social worker or foster carer took any action to progress this. There is no record of any further discussions about providing transport to his previous nursery, nor of any contact with nurseries nearby to his foster carer. This was fault and it meant Y went without the provision everybody agreed he needed.
36. There is no evidence of a PEP meeting being held or a PEP being completed for Y in this period. This was fault and led to uncertainty about what support Y needed to reach his educational potential.
37. I cannot find fault in the Council for the lack of formal speech and language therapy delivered to Y. The referrals were made by health professionals and any delay in taking action would lie with health services which are outside the Ombudsman’s jurisdiction. However, the first Looked After Child Review highlighted that Y had been receiving support from nursery with his speech delay, and the Council has not disputed this. As Y did not attend while he was a looked after child he missed out on this informal support and this caused him injustice.

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Agreed action

38. Within one month of the Ombudsman’s final decision, to remedy the injustice caused, the Council will:
• Apologise to Mr X and Y for the failure to secure nursery provision for Y between January and April 2016.
• Pay Mr X £250 in recognition of the time and trouble taken to resolve his complaint.
• Pay Mr X a further £100 in recognition of Y’s lost provision and the failure to complete a PEP. Mr X can use this for Y’s educational benefit to ensure he catches up, as far as possible, on provision he missed.
39. The Council will also clarify the timescales for holding the first PEP meeting and completing the first PEP for pre-school age children in its online procedures and its guidance documents. It will send a reminder to social workers about the timescales for completing PEPs and provide a copy of this reminder to the Ombudsman within one month of the final decision.
40. Mr X has indicated he does not wish to accept the financial remedy as he is considering taking an alternative course of action against the Council. However, should he change his mind, the Council should make the payments within one month of him confirming this in writing.

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Final decision

41. I uphold his complaint for the reasons given in the Analysis section of this decision. Mrs X has been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman