The Ombudsman's final decision:
Summary: Mrs M complained the Council had failed to put in place alternative educational provision when her son was out of school. There is evidence of fault and the Council has been asked to apologise, make a payment and change its procedures.
- The complainant, whom I shall call Mrs M, complains that her son, N, who has an Education, Health and Care Plan (EHCP), was unlawfully excluded from school between September 2016 to January 2017. During this time she says;
- no alternative provision was made by the Council;
- the Council did not take adequate action to secure the provision of his EHCP; and,
- the Council’s complaint response was delayed and flawed.
What I have investigated
- I have investigated this complaint except where it concerns the actions of the school. I explain this further at the end of this statement.
The Ombudsman’s role and powers
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
- 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.
- 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)
How I considered this complaint
- I considered the information I received from Mrs M with her complaint. I accessed relevant statutory guidance on alternative provision (2013) and the requirements of the Education Act 1996. I sent Mrs M and the Council a copy of my draft decision and took their comments into account before making a decision.
What I found
- N has an Education, Health and Care Plan (EHCP). He has a diagnosis of autism and associated learning difficulties.
- Mrs M says the Council failed to provide her son N with education from 28 September 2016 until 6 January 2017 when he was in Year 10 of secondary school.
- The matters complained of started on 6 September 2016 when N came home from school saying he had been assaulted by a teacher. As a result, Mrs M emailed the headteacher asking what had gone on. She says the response, received on 10 September, was insufficient as it did give the full detail of the incident. Because of this, and because it was not the first time this had happened to N at school, Mrs M decided N was not safe at school and that she should keep him at home. She says she wanted to keep him at home until she could uncover the exact details of the event.
- She later, on 12 September, after having sought independent advice, made a complaint to the governing body of the school and involved the police.
- From 12 to 28 September, the school provided work for N, which Mrs M says N completed and she returned.
- The police explained to Mrs M on 1 October that there had been no serious assault. A teacher had put her hand up to block N from walking to his desk and had shouted at him and held onto his shoulder with her other hand. The police’s view was this had ‘broken the rules of engagement’ as far as N was concerned, it was also not in line with the requirements of N’s EHCP or personal profile, but there was no criminal intent.
- As a result, Mrs M felt N should go back to the school. She took him there on 3 October. The headteacher allegedly told her that none of that subject’s staff were prepared to teach N and did not want him to return except if he had 2:1 support. The headteacher, and staff, were clearly concerned that N could make allegations about other staff members in the future. The headteacher reportedly said no one ‘trusted’ the family and that Mrs M should find another school for N. Mrs M said she did not want N to change schools, because he was not able to cope well with change and the school was named on his EHCP. She wanted him to come back to school as soon as possible.
- On 17 October a governors meeting took place. The governors hoped N could soon return to school. The headteacher acknowledged he had not handled the matter well. An emergency review of N’s EHCP followed on 19 October. But this did not facilitate N moving back into school. The headteacher reportedly said the school could only have N return with 2:1 support. This was to be presented to the relevant Council panel meeting. There was still concern that members of staff, at least in the English department, did not want to teach N nor wanted him back in the school because of the seriousness of the allegation.
- The Council’s Panel met on 26 October. It had also expressed concern about the need for 2:1.
- Further meetings in November did not take this much further forward. Mrs M felt she was left with no choice at this point than to make a referral to the First Tier Tribunal in relation to disability discrimination. The tribunal judge telephoned on 13 December and asked the school to do more to reintegrate N. N started back at school part time on 9 January and full time from 16 January.
- When Mrs M made complaints about what had happened, she thought the Council responded late. The complaints process concluded that the school was responsible for arranging education for N, rather than the Council, and that N had not been greatly affected by his prolonged absence from education. Mrs M thought the investigating officer was not acting impartially as she chose not to contact her or N’s case worker.
What should have happened
- The Education Act 1996 states that if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise, a Council must make arrangements to provide suitable education either at school or elsewhere. The term "suitable education" is taken to mean that suitable to the child's age, ability and aptitude and to any special educational needs they may have.
- Initially, it was Mrs M’s decision not to send N to school. It was also her choice (after seeking advice) to escalate matters to the governing body and to the police. On the balance of probabilities, once she did this, it would directly impact the members of staff affected and potentially interfere with the trust relationship between the family and the school even though the governors agreed the school had not acted in accordance with its own complaints policy.
- I have seen an email from Mrs M to the Council explaining what was happening dated 8 October. I cannot hold the Council responsible for not intervening sooner if it was not aware, from Mrs M, of what was going on. On the balance of probabilities, I consider the matters complained of to the Council could not start earlier than 8 October.
- Once it was clear to the Council that N was not receiving education at school, we would expect it to intervene to provide alternative provision in line with the relevant statutory guidance. Although it should work with the school to facilitate a swift return for N, this effort should not have meant N was without education. N should also have received the services set out in his EHCP over this time where it was possible.
- Statutory guidance is clear the Council is ‘responsible for arranging suitable education for permanently excluded pupils, and for other pupils who – because of illness or other reasons – would not receive suitable education without such arrangements being made’. This does not mean the Council must ensure a child goes back to their previous school. Mrs M wanted N to return to the school because N found it so difficult to deal with change and it was named on his EHCP. This was even though the headteacher appears to have explained the relationship between the school and N had broken down and teachers (at least in the English department) did not want N back in lessons even if the governors thought N could and would return. The Council could have identified another school, conducted an emergency review and changed the school named in N’s EHCP. It could also have decided to send N to a short stay school, provided him with online teaching (with support) or provided a home tutor. There is no evidence the Council considered alternatives once Mrs M said she wanted N to return. Its failure to do this is fault even though it says that, at the time, Mrs M did not want other provision but wanted N to return to the school or for him to have home tuition. The Council should have explained the implications to Mrs M of wanting N to return to the school. It should apologise that it did not.
- The Council told me the Headteacher had invited N to start back on 28 November. I have no evidence of this. Furthermore, the Council did not check that he was receiving education from this date. Given its statutory duty, it would have been appropriate that it did so.
- The school had been given some additional money in November. Although there was a suggestion it would provide ‘catch up’ sessions for N when he returned to school, it was also said to be for additional support for N through break and lunchtimes. Although I appreciate this caused confusion for Mrs M, it was a matter for the school and the Council about how to use this money. There is no evidence of Council fault and I cannot consider the actions of the school.
- Further, N was in Year 10 and studying for public examinations at the end of the following academic year at this time. When he returned to school, he seemingly found it harder to integrate with his peers. He is reported to have been outside his English lessons working with a teaching assistant for 55% of the time and for 60% of the time in Maths.
- N was no longer working at his target grades either (although I do not know when these had been previously assessed). On the balance of probabilities, this would have been less acute had N received education while he was out of school. As a result, N had to drop subjects he enjoyed in favour of studying the core subjects, which was also likely to make him unhappy at school. Mrs M says N’s mental health deteriorated as he found everything more difficult as well as having to adapt to being back in a school environment. She says N’s confidence in learning new material disappeared; he started back well but then quickly lost enthusiasm for learning.
- The Council’s failure to make alternative provision when he was out of school is fault. The Council should make a payment to him of £2,000 for this loss of service, given the importance of the academic year in which it fell. It should ensure it is mindful of statutory guidance and changes its procedures so it considers whether it should provide education, or identify alternative provision, when it is aware a child or young person is not receiving any (or enough) elsewhere. It should also chase up to ensure that what has been agreed between it and the school is happening.
- During this time, Mrs M was also put to a great deal of time, trouble and distress chasing up provision. This is fault. The Council should make a payment of £300 to her to acknowledge this.
- Mrs M made a complaint on 27 September. We generally expect Councils to reply quickly; within ten days if possible. Her complaint was not answered until 3 November. This is fault. The Council should apologise and change its procedures so it answers complaints swiftly. Once Mrs M made her request for a Stage Two investigation, the Council told her it would answer more quickly than it did, which is fault, although it answered in less than 30 working days. The Council should apologise for the delay. Further, the Council’s responsibility to make education provision, where it is otherwise not being made, should have been acknowledged. Mrs M was distressed by this failure. The Council should apologise and make a payment of £200.
- Mrs M says the investigator did not speak with her or with N’s case worker for the investigation, which made her think the investigation was not impartial. There is nothing in statutory guidance to say that investigators have to speak with complainants or support workers although we consider it good practice that they do. The Council should consider whether it needs to provide any additional guidance to investigators to encourage them to gain perspectives from all sides before commencing an investigation.
- For the Council to apologise to Mrs M for the fault in this statement within one month of my decision.
- For the Council to make a payment of £500 to Mrs M, as specified within this statement, within three months of my decision. It should also make a payment of £2,000 for loss of service to N in the same timescale.
- For the Council to consider amending its procedures to ensure it considers alternative provision where children are receiving no, or too little, education even when they are on roll at a school. It should do this within four months of my decision and inform me of the result.
- For the Council to consider amending its procedures so it checks that children are receiving the provision agreed between it and the school they attend. It should do this within four months of my decision and inform me of the result.
- For the Council to consider amending its procedures so investigators solicit information from all sides of the issue they are investigating, including by talking to complainants and their supporters. It should do this within four months of my decision and inform me of the result.
- Fault causing injustice and a remedy has been agreed.
Parts of the complaint that I did not investigate
- I did not investigate any part of Mrs M’s complaint relating to the school as this is outside the Ombudsman’s jurisdiction.
Investigator's decision on behalf of the Ombudsman