The Ombudsman's final decision:
Summary: Ms X complains the Council failed to provide her son, Y with an education for three years, and delayed in dealing with her complaint. The Council’s failure to keep proper records; to identify that Y was out of education in 2012; and to provide him with alternative provision amounts to fault. There was also fault in the way the Council dealt with Ms X’s complaint. These faults have caused Y and Ms X an injustice.
- The complainant, whom I shall refer to as Ms X complains the Council failed to provide her son, Y with an education for three years.
- Ms X also complains the Council delayed in dealing with her complaint.
- Ms X has been assisted in making this complaint by Mrs Z.
The Ombudsman’s role and powers
- 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)
- 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). This complaint relates to events more than 12 months ago, but we have exercised discretion to consider it. In reaching this decision we have taken account of the length of time the Council has taken to investigate Ms X’s complaint, and the findings.
- 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)
- 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.
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and the documents provided by Mrs Z;
- made enquiries of the Council and considered the comments and documents the Council provided;
- discussed the issues with Mrs Z;
- sent a statement setting out my draft decision to Mrs Z and the Council and invited their comments. I have considered Mrs Z and the Council’s response.
What I found
- Councils must ensure that primary and secondary education is available to meet the needs of the population in their area. (Education Act 1996, section 13)
- Councils must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs they might have. (Education Act 1996, section 19)
- Councils also have a duty to identify children not receiving an education. Parents have a duty to ensure that their child of compulsory school age receives suitable full-time education either at school or otherwise. If the council has reason to suspect a child is not receiving education, it can serve a notice on the parents requiring them to satisfy it in that regard. If a council finds a parent is failing to ensure attendance, it can issue a School Attendance Order (SAO).
Special Educational Needs
- A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections
- Ms X and her family moved to the UK in August 2012. Ms X applied for a school place for Y who was 12 at the time. In September 2012 the Council offered Y a place at School 1. Y accepted this place in October 2012, but at a meeting in November 2012 School 1 said it could not meet Y’s needs.
- Mrs Z states Ms X repeatedly asked for assistance and a school place for Y but did not receive a response. There are no records of any further contact between the Council and Ms X until late 2014 when Ms X asked for an ECH needs assessment.
- The Council records show on officer visited Ms X in early November 2014. In an email to the Council’s attendance service, the officer noted Y appeared to have some needs, but not enough that School 1 would not be able to meet them. They also noted Y would not need an EHC needs assessment.
- The attendance service wrote to Ms X on 7 November 2014 stating that Y had been offered a place at School 1, and Ms X had declined the place/ failed to register Y at the school. The letter reminded Ms X she had an obligation to ensure Y was in receipt of a full-time education. It also advised that if Ms X failed to register Y in suitable education within the next two weeks, the Council would issue a SAO
- The file notes state officers visited Ms X on 12 November 2014 to try and ascertain Y’s needs, but there was no one home. The officers left a calling card. The Council did not issue a School Attendance Order, and there is no record of any further action by the attendance service at this time.
- In February 2015 the Council wrote to Ms X advising that the SEND panel had decided it would not be appropriate to carry out an EHC assessment. It notified Ms X of her appeal rights and suggested Y should see an educational psychologist to determine his needs. Y met with an educational psychologist who prepared a report dated 19 May 2015.
- In August 2015 the Council agreed to carry out an EHC needs assessment. It issued a draft plan in October 2015 and the final EHC plan in November 2015. The plan did not name an educational placement. In December 2015 the Council advised Ms X that College 1 had confirmed it could meet Y’s needs, but to take up a place Y would need to apply for a course.
- Ms X appears to have applied to College 1 and College 2, but Y did not enrol with either. Y attended a learning centre for a short period in February 2016, he then started a course at College 2 in September 2016.
- Ms X is concerned that Y was out of education between 2012 and 2016 and the impact this had on his education and well-being. She states friends and family tried to provide Y with an education at home. But there was no formal structure or professional tuition, and Y missed out on social interaction with his peers. Y being out of education also had a significant impact on the family in terms of their well-being and finances. Ms X states she was unable to work during this period as she had to be at home with Y.
- In May 2017 Mrs Z made a formal complaint on Ms X’s behalf seeking compensation for Y’s missed education and the impact this had on him and the family. The Council’s response sets out the Council’s actions in relation to the EHC assessment and its contact with Colleges 1 and 2 in 2015. It states College 2 invited Ms X and Y to two meetings but they did not attend. The Council states it asked College 1 to let it know if Ms X and Y did not attend a meeting. The Council was unaware Y had not accepted a place. The Council considered it had tried to support Y into an educational placement for the final year of his compulsory education.
- As Ms X was not satisfied by the Council’s response, Mrs Z asked for a mediation meeting. This took place in November 2017 and focussed on events since 2015. Officers confirmed they would refer Ms X’s complaint that Y was out of education between 2012 and 2016 to the admissions team to respond.
- The Council asked for further information from Mrs Z in relation to any applications for places, any school places offered to Y and any correspondence with the admissions department between 2012 and 2015. Mrs Z confirmed that Y was offered a place at School 1 and referred to the learning centre. He did not receive any other offers of schools, home education or alternative provision. Mrs Z suggested the Council should have this information and was unhappy with the way the Council had dealt with the complaint.
- In July 2018 the Council confirmed it had attempted to compile a chronology of events between 2012 and 2015. The Council noted the offer of a place at School 1, and School 1’s decision it could not meet Y’s needs. It was unable to establish any further correspondence after this point, until 2015. The Council’s records did not allow it to determine whether there were any further applications for school. The Council acknowledged its record keeping was not acceptable and apologised for this lack of clarity.
- Mrs Z was not satisfied by the Council’s response. She asserted Ms X had provided information regarding Y’s SEN needs when they first applied for a school place. Mrs Z was concerned the Council had lost this information and did not have any records of Y as a child missing education.
- In a further response, the Council acknowledged Y had been out of education between 2012 and 2015. It confirmed it would consider funding a suitable programme of education or training provision for Y. The Council asked Ms X and Y to consider the educational options available and provided details of the costs. It also asked Ms X to provide details of the cost of any private tuition Y had received during this period.
- Mrs Z does not consider the Council’s offer to pay for courses is adequate or appropriate. Y is currently enrolled on a full-time course and would be unable to cope with any additional tuition or courses. Mrs Z states that as well as missed education, Y missed out on the opportunity to develop essential life skill, and to socialise and interact with his peers. Mrs Z also asserts the family should be compensated for the impact Y’s being out of education had on them. To support Y, Ms X was unable to work during this period and suffered from depression.
- In response to my enquiries the Council states it does not have any records of applications for any other schools for Y, or places offered. School 1 was the only mainstream school offered. The Council also states it did identify Y as a child missing education.
- The Council acknowledges its record keeping was not acceptable and that this has not assisted in investigating Mrs Z’s complaint. It states it has acknowledged the circumstances and that Y was out of education and has proposed options for compensation.
- Mrs Z has responded to the draft decision and maintains Ms X repeatedly sought help from the Council throughout the period Y was out of education. As most of the communication was verbal, either in person or on the telephone, Ms X does not have records of this contact.
- Mrs Z believes the Council should have done more to assist Ms X and Y. It knew Ms X had limited knowledge of the procedures and limited ability to communicate in English.
- In addition, Mrs Z asserts that being out of school for so long will have a lifelong impact on Y, and he should receive a remedy that reflects his. Mrs Z does not consider Ms X’s efforts to ensure Y received an education should be a factor when determining a remedy. Mrs Y states Ms X sacrificed four years fighting for Y’s needs to be met. She does not consider the recommended remedy adequately addresses this.
- The Council has also responded to the draft decision and confirmed a number of the failings identified have been resolved. This includes a closer link between admissions and the children missing education teams. The Council is also in the process of updating its pupil level management information system to ensure children not in education are effectively tracked across all service areas.
- Y should have received educational provision from September 2012 but did not begin full time education until September 2016. It is concerning that Y spent such a long period out of education, apparently lost to the system.
- The Council has very limited records for 2012 to 2015 but appears to have been aware in November 2012 that School 1 could not meet Y’s needs. The Council has confirmed School 1 did not admit Y to the roll. This should have prompted the Council to liaise with Ms X about other options, and potentially to explore Y’s needs. There is no evidence this happened.
- The Council is unable to confirm whether Ms X made any applications for other schools, but has confirmed School 1 was the only mainstream school it offered Y.
- The Council states it did identify Y as a child missing education. But this appears to have been in November 2014 when a SEND officer contacted the attendance service. Y had been out of education for two years by this stage.
- The Council’s failure to keep proper records; or to identify that Y was out of education in 2012 amounts to fault.
- Notwithstanding the earlier faults, having identified that Y was not in education in 2014 the Council should have taken action. The Council did not serve a SAO or seek to prosecute Ms X, so it should have ensured Y received alternative educational provision while a school place was found. The Council’s failure to offer any alternative provision also amounts to fault.
- Although the Council assessed Y’s EHC needs and issued a EHC plan in 2015, there is no evidence it considered, or offered Y any alternative provision in 2015 or 2016. After the EHCP was issued Ms X appears to have applied to both Colleges 1 and 2 as meetings were arranged for early in 2016. Y did not take up a place and the Council did not proactively follow this up. It is unclear why Y did not start at College 2 until September 2016.
- The Council’s complaints policy states it will respond to complaints within 20 working days. If this does not resolve the matter the complainant can ask for a mediation meeting. In this case, Mrs Z complained on 20 May 2017 and the Council responded on 22 June 2017, just outside the 20 working day timeframe. Mrs Z then asked for a mediation meeting on 20 July 2017, and this held on 20 November 2017.
- The Council’s policy does not give a time frame for the mediation meeting to be held, but we would expect this to take place in a timely manner. I consider a period of four months to be excessive. Having held this meeting there was also a delay in sending Mrs Z the minutes and in carrying out the agreed action. Mrs Z did not receive a final response from the Council until July 2018. This again is an excessive period of time and amounts to fault.
- Having identified fault, I must consider the injustice this has caused, and how this injustice should be remedied. The primary injustice is to Y.
- Where fault has resulted in a loss of educational provision, we will often recommend a review of the current provision or additional tuition/ training. As Y is now in full-time post 16 education a recommendation for additional tuition or training would not be appropriate.
- We will also usually recommend a financial remedy of between £200 and £600 a month (£600-£1,800 per term) to acknowledge the impact of the loss of educational provision.
- Our guidance on remedies states the figure should be based on the impact on the child and take account of factors such as:
- the child’s SEN;
- any educational provision that was made during the period;
- whether additional provision now can remedy some or all of the loss;
- whether the period affected was a significant one in a child’s school career for example, the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
- I recommended the Council:
- Apologises to Ms X and Y for the faults identified above;
- Pays Y £10,800 in recognition of the impact the loss of educational provision has had on him;
- Pays Ms X £500 in recognition of the stress and anxiety, and financial difficulty she experienced while Y was out of school;
- Pays Ms X £200 for the avoidable time and trouble involved in pursuing this matter with the Council.
- The Council’s failure to keep proper records; to identify that Y was out of education in 2012; or to provide alternative provision amounts to fault. There was also fault in the way the Council dealt with Ms X’s complaint. These faults have caused Y and Ms X an injustice.
Investigator's decision on behalf of the Ombudsman