London Borough of Waltham Forest (17 015 590)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 03 Sep 2018

The Ombudsman's final decision:

Summary: fault by the Council caused disruption to B’s education for 12 months. B’s mother, Ms M, has been to considerable unnecessary time and trouble to ensure the Council makes suitable arrangements.

The complaint

  1. Ms M complains about her son B’s education. In particular, Ms M complains
      1. B has not had a school place since 2014; and
      2. B was without education between July and December 2017; and
      3. suitable arrangements for his education are still not in place.

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The Ombudsman’s role and powers

  1. 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)
  2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. We may decide to investigate if we consider it would have been unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  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

  1. I have considered:
    • information provided by Ms M;
    • information provided by the Council, including B’s Statement of Special Educational Needs, his Education, Health and Care Plan, and papers from annual reviews and looked after child reviews;
    • Promoting the education of looked after children. Statutory guidance for local authorities issued by the Department for Education in 2014;
    • Guidance on Looked After Children with Special Educational Needs placed out-of-authority issued by the Department for Children, Schools and Families in 2009;
    • the Special Educational Needs Code of Practice issued by the Department for Education and Skills in 2001 and the Special educational needs and disability code of practice: 0 – 25 years issued by the Department for Education in 2015;
    • the Education Act 1996 and the Children and Families Act 2014; and
    • Guidance on good practice: remedies, published by the Local Government Ombudsman in 2018.
  2. I invited Ms M and the Council to comment on my draft decision.

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What I found

  1. Ms M’s son, B, is 18. B is autistic. He has significant learning difficulties, sensory processing difficulties, complex needs and epilepsy.
  2. He has lived at a children’s home in the neighbouring London Borough of Redbridge (‘Redbridge’) since May 2014. His accommodation is arranged and paid for by the London Borough of Waltham Forest (‘Waltham Forest’). This makes B a looked after child.
  3. B had a Statement of Special Educational Needs (and later an Education, Health and Care Plan) maintained by Waltham Forest until 2017 when responsibility for his Plan was transferred to Redbridge.
  4. Waltham Forest has resumed responsibility for B’s education and will issue a new EHC Plan.

Complaint a) B has not had a school place since 2014

  1. B attended a special school until May 2014. His placement broke down and the Council arranged for him to receive education at the children’s home instead. This continued until summer 2017.
  2. The Council amended B’s Statement of Special Educational Needs in July 2014 to reflect the changes in B’s education. Part 4 of the Statement, in which the Council must set out details of B’s placement, including any provision for his education otherwise than at school, simply says, “Education Otherwise under section 319 of the Education Act.”
  3. The Ombudsman does not decide whether B should receive his education in the children’s home or whether he should have a school place. My job is to check the Council followed the correct procedures. The Council amended B’s Statement to show that he would receive his education in the children’s home. This, and the subsequent annual reviews, gave Ms M a right of appeal to the Tribunal if she disagreed with the Council’s plans to deliver B’s education in this way. The Tribunal, not the Ombudsman, would decide where B should receive his education. The Council could have provided more detail in B’s Statement to explain how his education would be delivered. However, as the Council followed the correct procedure to amend B’s Statement, which gave Ms M a right of appeal, there are no grounds for the Ombudsman to question the education B received.

Complaint b) B was without education between July and December 2017

  1. Following an Ofsted inspection in May 2017, the children’s home believed that it had to register with the Department for Education as an independent school if it was to continue to provide education for B. The children’s home decided not to register as an independent school and informed the Council it would have to make alternative arrangements. The children’s home stopped delivering B’s education in summer 2017.
  2. The Council agreed to transfer responsibility for B’s education to Redbridge. Redbridge began a reassessment of B’s needs, sought professional advice and issued a draft Education, Health and Care Plan.
  3. Problems arose, however, when it came to identifying suitable provision to meet B’s needs. Redbridge approached eight providers, but none could meet B’s needs. Ms M and Redbridge put alternative proposals to the Waltham Forest SEN Panel, but the Panel declined them.
  4. Redbridge arranged further home tuition instead. As an interim, temporary measure, Redbridge arranged for B to receive five, two-hour sessions of tuition each week at the children’s home from 4 December 2017. Ms M wanted ABA-based home tuition (a type of tuition for people with autism), but the Waltham Forest SEN Panel declined. Neither Council was happy with the progress B made. Redbridge identified another provider and sent a proposal to the Waltham Forest SEN Panel for approval. The Panel requested further information.
  5. Since Ms M made her complaint, Waltham Forest has taken back responsibility for B’s education and will issue a new Education, Health and Care Plan.

Consideration

  1. The law requires a children’s home to register as an independent school if a looked after child or a child with an EHC Plan receives education there. The requirement only applies if the child is of compulsory school age. This has been the case since 2003. (Education Act 1996, section 463, as amended)
  2. B was no longer of compulsory school age when Ofsted inspected the children’s home in May 2017. He ceased to be of compulsory school age on the last Friday in June in 2016. There was no need for the home to register as an independent school for B to continue to receive his education there. The disruption to B’s education could have been avoided if Waltham Forest had understood the requirements for a home to register with the Department for Education. The disruption to B’s education, therefore, is the result of fault by Waltham Forest.
  3. Nevertheless, the children’s home decided to end B’s education there. In response to Ms M’s complaint, Waltham Forest acknowledged that it had known about the need to make alternative arrangements for B’s education since May 2017. The Council accepted the gap in provision between September and December, which it calculated to be 14 weeks, was unacceptable.
  4. B has complex needs and arranging suitable provision has proved challenging.
  5. However, Waltham Forest has made the process more complicated than necessary by retaining the final say in arrangements for B’s education following the handover of responsibility for B’s Education, Health and Care Plan to Redbridge in summer 2017.
  6. Government guidance makes it clear that when a looked after child lives out-of-area, and the councils agree to transfer responsibility for his statement or EHC plan to the area in which he lives, the Council for the area in which he lives is responsible for assessing and meeting his special educational needs. The council that is his corporate parent remains responsible for the cost of his education, but it does not have the final say in arrangements for his special educational needs. It does not have to agree or ratify any proposals made by the council where they child lives and does not have a veto. This would conflict with its role as the child’s corporate parent. (Guidance on Looked After Children with Special Educational Needs placed out-of-authority, 2009)
  7. Having agreed with Redbridge to transfer responsibility for B’s Education, Health and Care Plan, Waltham Forest should have allowed Redbridge to make decisions about B’s special educational needs and provision. Waltham Forest should have acted as ‘parent’ and not ‘council’ in the process. That was Redbridge’s role.
  8. Waltham Forest’s failure to relinquish control means it effectively retained responsibility for B’s education. I therefore consider Waltham Forest is responsible for the injustice caused by the delay in making arrangements for B’s education following the transfer to Redbridge.

Injustice

  1. When a council decides to amend an existing Plan, as happened for B following the decision of the children’s home not to register as an independent school, it must issue the amended plan within 8 weeks. B did not receive a final amended plan for 12 months after his education at the children’s home came to an end.
  2. B’s education has been disrupted as a result of the breakdown of the arrangements under which he received education at the children’s home. The disruption has lasted for 12 months in all. This is an injustice.
  3. B has not been completely without education since the arrangements at the children’s home came to an end in summer 2017. The Councils made alternative, interim arrangements instead. However, B has not had the structure, and protection, afforded by an Education, Health and Care Plan. This is an injustice.
  4. One consequence has been disruption to B’s occupational therapy. This was provided by staff at the children’s home and overseen fortnightly by an occupational therapist until the home decided it would no longer provide B’s education.
  5. Waltham Forest accepts there was a gap of 14 weeks, between September and December 2017, when there were no suitable alternative arrangements in place for B’s education. This is an injustice.
  6. Ms M has also experienced considerable frustration in her efforts to secure suitable education for B following the breakdown of provision at the children’s home. Waltham Forest directed her to raise her concerns directly with Redbridge. While this was the correct thing to do, Waltham Forest undermined Redbridge’s ability to respond to Ms M’s concerns by retaining the final say in arrangements for B’s education. Redbridge could not have resolved Ms M’s concerns, so Waltham Forest caused her unnecessary time, trouble and frustration.
  7. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, we may recommend the Council makes a token payment to acknowledge what could have been avoidable distress, harm or risk. Payments for distress are usually modest sums between £100 and £300.
  8. B’s education has been disrupted for a year, time he cannot get back. However, he is eligible for support and an Education, Health and Care plan until he is 25 and so the Council has an opportunity to make up for lost time.

Complaint c) Suitable arrangements for B’s education are still not in place

  1. Since Ms M complained to the Ombudsman, Waltham Forest has resumed responsibility for B’s education and agreed to issue a new Education Health and Care Plan. If Ms M disagrees with the arrangements for B’s education, she will have a right of appeal to the Tribunal. The Tribunal, not the Ombudsman, will decide whether the Council’s arrangements for B’s education are suitable.

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Agreed action

  1. I recommended Waltham Forest:
    • apologise to Ms M for the faults I have identified;
    • offer Ms M a payment of £500 to acknowledge her time and trouble, and the frustration she experienced, in trying to secure suitable education for B following the breakdown of the arrangements in the children’s home;
    • review its procedures for looked after children with special educational needs living out-of-area to ensure they comply with the law and government guidance; and
    • consult with Ms M, B, his carers and anyone who advocates for him to identify something – either a possession or an activity – he would enjoy to the value of £2,000 to remedy the injustice he has suffered from the disruption to his education as a result of fault by the Council.
  2. The Council accepted my recommendations.

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Final decision

  1. The Council accepted my findings and recommendations so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman

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