Derby City Council (17 002 655)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 31 Aug 2018

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to provide a suitable education for his daughter when her school was closed through strike action. He also complains the Council failed to ensure Y received the provision set out in her SEN statement / EHC plan during the strike action. We found the Council took reasonable actions to try to keep schools open during the strike. We found it failed to properly consider SEN/EHC provision over this period. The Council agreed to make a payment to Mr X to reflect the injustice this caused.

The complaint

  1. Mr X complains the Council failed to provide a suitable education for his daughter, (who I refer to in this statement as Y), when her school was closed due to strike action. He also complains the Council failed to ensure the provision set out in Y’s SEN statement was provided during the periods of strike action.

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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. 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

  1. I spoke to Mr X, considered his complaint and the information he provided. I asked the Council for information and considered its response to the complaint.
  2. I interviewed council officers and former council officers involved in the matter.
  3. I sent my draft decision to Mr X and to the Council to enable both parties to comment before I reached a final decision. I considered the comments I received before reaching a final view on the complaint.

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What I found

  1. In early June 2016 the Council became aware that members of a union had voted to take strike action potentially affecting all schools in Derby. A large number of the staff on strike were Teaching Assistants (TAs).
  2. The strike related to TAs pay and conditions which had changed following a job evaluation study. The Council carried out the job evaluation study to address the issue of equal pay across a wide variety different job roles. I understand that changes to the pay and conditions of various job roles occurred as a result. The central issue of the strike was the change to TAs pay and conditions.
  3. Mr X’s daughter, Y, attends a special school. She has a learning disability, mobility impairment and visual and hearing impairments. Y had an SEN statement until 2017. Since March 2017 she has had an Education, Health and Care plan (EHC).
  4. Mr X told me Y needs one-to-one specialist care from staff and her school has two nurses available in case of medical emergencies.
  5. Y’s EHC plan says her needs are severe to extreme. It sets out Y’s strengths and needs. The plan states Y relies on an adult to interpret her body language, breathing pattern and colour changes to communicate. She needs time to become familiar with the adults that support her and time to become used to any new environment.
  6. Y is fed through a gastrostomy, she has a tracheostomy and she relies on others to meet all aspects of her personal care. She is unable to move from one position to another without the help of an adult. Y needs 24 hour care through the day and night and requires suction frequently.

Mr X’s complaint

  1. On or around 10 June the union formally notified the Council that industrial action would take place at various dates in June and July 2016. Strike action continued throughout 2016 and into 2017. In all, between June 2016 and July 2017 there were 60 days of either full day or part day strikes. This was a significant amount of closures and represented just under a third of the term time in the period concerned.
  2. Mr X complains due to the strike action and the effect on Y’s school, the Council failed to provide a suitable education for his daughter and failed to ensure the support set out in Y’s EHC plan was provided. During the strike action, I understand that many of the city’s mainstream schools were able to open. However, the special school that Y attends was closed every day of the strikes.
  3. The Council provided copies of its communications with head teachers during the strike which took the form of a regular newsletter. The newsletters included the dates that strikes had been called and guidance on key issues for head teachers.
  4. In the first newsletter in June 2016 the Council provided them with a briefing note regarding industrial action. This included the need for head teachers to ensure they took all reasonable steps to keep their school open for as many pupils as possible. It noted the decision to close a school was the head teacher’s. The note also explained there was a need to consider the health and safety of pupils and staff and it posed questions for headteachers to consider. These included questions about safety and whether necessary duties could be carried out by other appropriate staff without asking them to undermine colleagues on strike.
  5. A newsletter towards the end of June included responses to ‘frequently asked questions’ which covered what head teachers could consider doing to keep schools open. It stated schools could use existing employees from other parts of the organisation, they could continue to use any existing agency staff to do the original roles they were employed to do, and they could employ staff on full time contracts to replace any staff who were absent for reasons other than the strike. It stated schools could use volunteers subject to their availability and Disclosure and Barring Service (DBS) checks.
  6. In September 2016, the Council met with Y’s school. Notes from the meeting indicated that over half the staff at Y’s school were TAs and the majority were striking. The school noted that it had closed on all of the strike days due to the severe nature of the children’s disabilities and their specialist health and well-being needs. The school stated that TAs were essential as the children were familiar with them and their needs were specialist. So, Y’s school indicated it had very limited opportunities to work in a way that did not involve the TAs. The school stated that ‘bank staff’ had been significantly depleted because many of them had already been offered contracts to replace staff who had left employment before the strike, so bank staff had not been an option. The school also stated the use of volunteers, particularly parents had not been appropriate as the school acted as a form of respite for many of them.
  7. The headteacher updates in January 2017 reminded schools affected by strike action that they needed to take all reasonable measures to maintain continuity and remain open wherever possible. It encouraged schools to consider use of volunteers, redeployed resources and changes in working arrangements. It suggested doubling up of teachers to each class, consolidating non-striking staff to enable a smaller number of classes to be provided, doing more group sessions and changes in lunch breaks. The advice stated selective discussions may be needed with parents of children who may not be able to be accommodated due to the lack of specialist support.
  8. On 24 February the Council’s update stated it had been working alongside the most affected schools to ensure every reasonable and lawful option was explored to keep the school open during strikes.
  9. The Council told me because the background to the strike was equal pay, it could not have sought to resolve the dispute in isolation. This was because any ill-advised settlement may well have an impact beyond TAs. This made resolving the dispute challenging. The Council told me the Chief Executive and Monitoring Officer in post at that time led the response to the strike. It stated there were numerous internal meetings involving council staff, headteachers/governors, the unions and TAs, but because the discussions about industrial action were sensitive, what was discussed was not permanently recorded.
  10. We asked the Council what action it took to ensure the provision set out in Y’s SEN/EHC statement was being met during the strike action. It told us it asked the school to complete a risk assessment to ensure that all options had been explored to meet Y’s educational needs given other schools were at times able to provide some cover and not close completely. It stated this was revisited daily.
  11. The Council could not provide me with the risk assessment and at interview the Head of Integrated Children’s Services stated the risk assessment referred to was the general business continuity plans that schools have, rather than something specifically requested of the school. She stated she understood there was daily contact between the Council’s HR team and schools about which schools were open. She stated she was unsure if anyone from Children’s Services considered during the strike how much of children’s SEN/EHC provision was being met.
  12. I interviewed the former Monitoring Officer and former Chief Executive. They told me it was not true that records were not kept because of the sensitivity of the project. If anything, the opposite was the case because the project was high profile, there were risks involved and there was a need to ensure the outcome could be relied upon. They were clear that formal meetings were minuted and notes were kept by officers attending less formal meetings to discuss the strike and the impact on schools. They explained the actions taken and work done with schools throughout the strike.
  13. The Council provided some of its legal advice concerning the strike. The advice was obtained in March 2017. I understand legal advice was taken throughout the strike. The advice went into the complexities of the strike itself, the issues it caused to services and discussed options for staffing and keeping schools open.
  14. The Council’s response to Mr X’s complaint stated it was satisfied all reasonable steps were taken to resolve the strike and mitigate the effects of it. The Council acknowledged that some of the legally required 380 half day education sessions were not met by schools as a result of the strike but it stated it would not be reasonably practicable for schools to catch up or arrange this provision on other days as staff could not be compelled to work on non-working days to do so.
  15. Mr X complained the Council had failed to provide an education to Y and failed to ensure she received the support set out in her EHC plan. Mr X felt the Council had failed to make plans to meet Y’s needs when it became aware further strikes would take place to reduce the impact to Y and to the family.
  16. Mr X explained that his wife acts as Y’s carer at home and she provides significant support to Y, including support regularly during the night.
  17. Mr X told us that the strike put the family under great pressure and meant his wife had no longer been able to maintain all of Y’s care without additional support from social services, which up until then, had not been necessary. Mr X explained this had been stressful for the family as a whole.

Legal and Administrative background

  1. Section 13 of the Education Act 1996 places a duty on local authorities to ensure an efficient education is available to children in its area.
  2. The Education (School Day and School Year) (England) Regulations 1999 defines school days.
    • Section (3)(2) requires schools to hold 380 half day education sessions.
    • Section (3)(3) states “Where at any time a school is prevented from meeting for one or more sessions for which it was intended that it should meet, and it is not reasonably practicable for arrangements to be made for it to meet at an alternative time for those sessions, the school shall be treated for the purposes of [the requirement to provide 380 half days] as if it had met as intended.”
  3. Section 42 of the Children and Families Act 2014 states that where a child has an EHC plan the local authority must secure the special educational provision for the child specified in the plan. Local Authorities also have a duty to arrange any specified health care provision for the child if it is specified in the child’s EHC plan.
  4. Section 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 prevents employment agencies from providing workers to perform the duties normally carried out by someone who is taking part in official strikes or other official industrial action.
  5. In September 2013, the Department for Education (DfE) produced non-statutory guidance about how to handle strike action in schools. The guidance was updated in September 2016. It states;
    • The decision as to whether to close or partially close a school rests with the headteacher. In the event of strike action at a school, the DfE expects head teachers to take all reasonable steps to keep the school open for as many pupils as possible.
    • The law prevents the replacing striking workers with agency staff (see paragraph 33 above). However, an employer can directly employ individuals to cover those on strike and it can use volunteers. In both cases safeguarding of pupils would be a consideration and DBS checks would be required.
    • There would be no express right for a member of the public who is affected by lawful strike action to receive financial compensation. It states any parent making a claim would need to establish a legal basis for doing so, such as breach of contract.

Analysis

Industrial Relations

  1. The Ombudsman will not become involved in deciding how a council should resolve a strike. We are not in a position to determine what action a council should take to respond to an industrial dispute, or whether actions a council has taken to respond to unions or workers have been sufficient. The Ombudsman would not decide whether a strike could have been brought to an end sooner if the Council had taken different action.

Contingencies and meeting statutory duty to provide education

  1. Although the Ombudsman will not reach a decision on the management of a strike itself, we can consider how the Council responded to any impact the strike had on areas in which it has statutory duties. Councils have a statutory duty to ensure children receive a suitable education. They also have a duty to ensure the support set out in a Special Education Needs (SEN) statement, or Education, Health and Care (EHC) Plan is provided. So, this investigation has centred on whether the Council sufficiently considered contingencies and ways that the impact upon schools could be mitigated in order to meet these statutory obligations.
  2. The law prevents employers from recruiting agency staff to replace striking workers. This significantly limits an organisations ability to directly replace staff involved in strikes.
  3. There is evidence the Council sought regular information from schools in its area to understand the extent to which schools were affected by the strikes. This included information about whether schools were open or closed and which staff were working.
  4. In regular newsletters, the Council gave guidance to schools about what they could and should do. It re-iterated the statutory guidance and the need for schools to take all reasonable steps to stay open for as many pupils as possible. The advice in its newsletters included suggestions for maintaining staffing other than by use of agency staff.
  5. There is evidence the Council recognised that special schools were more significantly affected than mainstream schools. Y’s school was closed every day there was a strike. The Council met with the head teacher of Y’s school to discuss what sort of response could be put in place.
  6. The notes of one such meeting show the limited scope for keeping the school open. The head teacher’s view was that volunteers and families could not be used. In addition to general issues with safeguarding and DBS checks, staff looking after the children also required training and knowledge of the pupils. This is because many had severe medical needs and staff need to be familiar with them to understand how they communicate. This made replacing TAs very difficult.
  7. The decision to close the school rests with the head teacher. Unfortunately, due to the complexities of employment law, coupled with the specific needs of the pupils at Y’s school she felt there was no realistic prospect of keeping the school open with so many staff on strike. I have great sympathy with the impact to Mr and Mrs X as a result. However, based on the documents I have seen and the information provided during interviews with council officers I am satisfied that the Council took reasonable steps to try to keep schools open during the strike.

SEN/EHC provision

  1. Separate to the duty to provide education, the Council also has a duty to ensure that children with special education needs receive the support set out in their SEN statements and EHC plans.
  2. Some comments made by the Council in response to my enquiries about this part of the complaint were misleading. It referred to requesting a risk assessment and following this up, but it could not show me that it did so.
  3. The Council provided no evidence that it properly considered whether it was possible to meet any of the support within children’s SEN statements or EHC plans, other than in the school environment. I found this was fault.
  4. Much of the support specified in Y’s SEN and EHC statements over the period concerned was built into the school day and routine. So, it is not clear whether it would have been possible for the Council to take additional steps to provide some or all of this outside school. Some of the same difficulties involved with keeping schools open (for example, the need for qualified staff, the familiarity of those providing support and the specialist nature of Y’s needs) may also have been barriers to providing some or all of Y’s SEN/EHC provision at home or elsewhere. However, Mr and Mrs X were significantly impacted by the strike and the fault I found leaves them with a degree of uncertainty about whether some of Y’s SEN/EHC provision could have been met at home, had the Council considered this properly. As a result, I consider some form of remedy is warranted.

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Agreed action

  1. To recognise the uncertainty I describe in paragraph 46 above, and the time and trouble Mr and Mrs X have spent pursuing the complaint the Council agreed to pay them £400 within four weeks of my final decision.
  2. We recommended the Council reviewed this decision and its actions during the strike to consider what action is possible to meet SEN or EHC needs if strike action happens at its schools in future. The Council confirmed it had already reviewed the actions it took and it had put in place a process to ensure education and EHC provision is properly considered in the event of critical incidents affecting schools in future.

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Final decision

  1. I found fault by the Council that warranted a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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