The Ombudsman's final decision:
Summary: Miss X complained the Council failed to investigate her concerns about safeguarding of her son, failed to provide support required by her son’s EHCP and failed to provide an education while her son was not at school. We found there was no fault in regard to the safeguarding issue. However, the Council were at fault for not providing education and EHCP provision. There was also fault in the way the Council handled Miss X’s complaint.
- Miss X’s son (referred to as Y in this statement) has special educational needs. She withdrew Y from his school on in January 2018 because she was concerned he was regularly being injured at school and no action was being taken when she raised concerns. She complained the Council;
- failed to investigate her concerns and failed to safeguard Y.
- failed to provide Y with an education after he was withdrawn from school.
- failed to ensure Y received the provision set out in his EHCP.
- declined to carry out an urgent EHCP review and delayed issuing a revised EHCP.
- failed to properly deal with the complaint she made to the Council about the matter.
The Ombudsman’s role and powers
- 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)
- 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
- We spoke to Miss X and considered the complaint she made and information she provided. We asked the Council for information and considered its response to the complaint.
- Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Education Act 1996
- Section 19 of the Education Act places a statutory duty upon councils to provide full-time education where a child cannot attend school because of exclusion, medical reasons or ‘otherwise’.
Statutory Guidance Keeping Children Safe in Education
- Paragraph 29 relates to Peer on peer abuse. It states all staff should be aware that children can abuse other children. It lists the most likely ways this may happen. The list includes physical abuse such as hitting, kicking, shaking biting …or otherwise causing physical harm. Paragraph 30 states all staff should be aware of the school’s policy and procedure relating to peer on per abuse.
- Page 16 of the guidance suggests the action that should be taken. It indicates that school staff should either take their own relevant action to address the situation or refer to children’s social care/and or call the police if appropriate.
- The Council may take a range of different steps when considering safeguarding matters, depending on the circumstances. This may be immediate steps or Section 47 child protection enquiries through to taking no formal action.
SEND Code of Practice 0 to 25 years
- Paragraph 9.166 of the code of guidance confirms that EHCPs must be reviewed by the Council annually as a minimum.
- Paragraphs 9.187 to 9.190 state that a council must conduct a re-assessment of a child’s EHCP if a request is made by the child’s parent. It may decide to re-assess the plan itself if it considers this is necessary. A council can refuse a re‑assessment if it is requested within six months of the last assessment or if it considers the child’s needs have not changed significantly. However, if a council decides not to carry out a re-assessment it must write to the child’s parent within 15 days setting out its decision and it must notify them of their right of appeal that decision and the time limit for doing so.
- Paragraphs 9.194 and 9.195 state that when a council proposes to amend an existing EHCP, it must send the parent a copy of the existing, unamended EHCP and a notice of the proposed amendments. It must then allow 15 days for comment. Then it must issue the amended EHCP as quickly as possible, but as a maximum, within 8 weeks of sending the notice of intended amendments.
Council Complaints Policy
- The Council’s policy in force at the time of the complaint has three stages. The complaint will be responded to at Stage One. If the Council considers resolution may be possible by a management review, this will then take place. If the complainant remains dissatisfied, they may request consideration of the complaint at Stage Two.
- Stage One and a management review (if it takes place) should each take no more than 20 days to complete. Stage Two should take no longer than 25 days.
- Miss X’s son, Y, has an Education and Healthcare Plan (EHCP) which specifies his education will be provided at a named school. The school is referred to in this statement as School A.
- Miss X provided a list of injuries that Y sustained while at School A. Miss X explained that in 2015, while Y was in nursery at School A, he was attacked by another pupil. Between 2015 and 2018 Y had been injured when he fell or walked into something. She stated in that time Y was also scratched or slapped by other pupils on several occasions.
- Miss X told us she regularly found bruises on Y. She considered the bruising could be from other children or by the way adults handled him. Y has global development delay and he is non-verbal, so he is not able to explain what happened.
- In late December 2017 Miss X asked the Council to find a new school place for Y. She told the Council he had bruising to his shins when he came home and she referred to her previous reports about injuries. She also sought changes to Y’s EHCP plan. She felt Y should attend a school for children with Learning Disabilities (LD) rather than a school for Severe Learning Difficulties (SLD). At this point Y’s EHCP had been last updated on 25 September 2017.
- In January 2018 Ms X removed Y from School A. She considered the school was not able to keep Y safe because she frequently found bruising. She stated his behaviour had changed and she believed he was regressing rather than developing at the school.
- Miss X explained her concerns to the Council and asked it to provide a tutor to educate him at home until a new school place could be found.
- A review of Y’s EHCP took place on 5 February 2018. School A agreed that Y’s EHCP was very outdated and had not been amended as it should have been. However, the school had worked to the targets agreed with Miss X rather than the out-of-date targets within the EHCP. At the meeting the school stated Y was progressing well against the targets agreed with Miss X the previous year. Y’s class teacher stated Y got on well with his peer group, they were all nice to Y and she had no concerns.
- Miss X felt she had not received a satisfactory explanation about why Y came home with scratches and bruises. She was unhappy with how much information School A provided and she considered Y was not being sufficiently challenged.
- Council officers, school staff and Miss X discussed Y’s non-attendance at school. Miss X explained she did not wish to home educate Y, but she was not prepared to send him back until she got a satisfactory explanation about the bruising she was finding. The officers present considered the incidents had been properly investigated. The school had involved the Local Authority Designated Officer (LADO) and the Police.
- In correspondence with Miss X and her MP in mid-February the Council stated School A remained a suitable school for Y.
- On 5 March the Council sent a draft of the revised EHCP for Y.
- Miss X complained again on 18 March 2018. She explained her concerns about School A and her son’s injuries. She stated Y’s EHCP required a high level of supervision which she doubted he was receiving. She was concerned that the school did not accept there was any issue and seemed dismissive. Miss X noted the school had offered to arrange to body map her son twice a day to record any bruises. It also offered to ensure Y had one-to-one supervision at all times and for Y’s social worker to spend some time observing Y at school. Miss X did not consider this appropriate. It would take up teacher time and she felt regular body mapping would be undignified. She also commented that Y was not being sufficiently challenged at the school.
- The Council met with Miss X on 10 April to discuss the amendments she wanted to Y’s EHCP. On 12 April the Council sent her an email stating a document proposing the amendments had been sent to her social worker and a copy had been put in the post to Miss X. The Council asked Miss X to send any comments she had within 15 days. On 13 April the Council acknowledged comments that Miss X had sent and stated these would be considered for the final EHCP. The Council sent a final EHCP to Miss X on 27 April 2018 by post. The plan still named School A.
- If Miss X disagreed with the decision to name the same school, this was something she could have appealed. However, I understand that Miss X did not receive the final EHCP.
- In April the Council made enquiries about another school that Miss X wanted Y to attend (School B). The Council stated in response that School B was full and no place was available.
- The Council stated that School A held a hearing to discuss the concerns Miss X raised about Y’s injuries on 15 May 2018. At that hearing Miss X’s complaints were not upheld by the school. The school sent a report to Miss X following the hearing. The Council also noted that an Ofsted inspection had occurred at around the time of the issues raised by Miss X. It found no concern about safeguarding.
- In an email to the Council dated 5 June 2018 Miss X stated her relationship with School A had broken down. She acknowledged the Council considered it met Y’s needs, but she believed this was not the case. Miss X said that she asked for a new school in March, naming School B. She understood School B was full, but she stated she would like to apply for a new school and it was the Council’s responsibility to provide a school which met Y’s needs.
- In correspondence with the Council in June Miss X stated Y had been off school for five months now and she wanted the situation resolved.
- In June 2018 at a meeting to discuss Y’s attendance, Miss X stated School A had not properly dealt with the concerns she raised about her son’s injuries when she had raised them in previous years. Since then, Y had returned home with bruises that the school could not explain. This was why she had removed Y from school. The minutes show that Miss X was unhappy with School A but she was also struggling to cope with Y at home. After discussion she agreed to take a few days to consider whether she would send Y back to School A.
- There was clearly a difference of opinion between Miss X and School A about whether Y was safe at school and the relationship between Miss X and the school was strained. Y did not return to school following this meeting.
- In July the Council encouraged Miss X to meet at School A to discuss her concerns. At the end of July Miss X stated she wished to make clear that Y would never be returning to School A. Miss X asked the Council to evidence why he could not be accommodated at School B. The Council explained its position on 24 July. It stated if Miss X wished to discuss other schools, it would be willing to do so.
- Miss X continued to press School A to respond further about the concerns she raised about Y’s safety. In September 2018 the school stated that it considered Miss X’s continuing correspondence to be vexatious.
- In or around October 2018 Miss X asked for an early annual review of Y’s EHCP. In October 2018 an Educational Psychologist assessed Y. She noted Y had not been at school since 12 January, but he had attended an after-school club on occasions and Miss X had employed a tutor once per week for some of the time. The report set out a plan for Y for when he had been re-integrated to school.
- The Council told us that it declined to carry out an early EHCP review for Y in October 2018 because it had reviewed Y’s plan in spring 2018 and the Educational Psychologist report showed that it still accurately reflected Y’s needs.
- The Council provided us with evidence that it had sent referrals to nine schools and consulted three other local authorities about potential placements for Y on 1 November 2018. As part of the consultation the Council sent a copy of Y’s current EHCP.
- The majority of the schools had no place or could not meet Y’s needs. One school, School C, stated it could accommodate Y after September 2019. Miss X spoke to the headteacher. Following their discussion, School C stated it could accommodate Y after Christmas 2018.
- I understand Miss X visited School C in January 2019 and formally requested that Y was offered a place there in February 2019. Y was offered a place and started to attend School C on a phased basis from March 2019.
Miss X’s complaint
- The Council responded to Miss X’s complaint at the first stage of the complaints process on 4 January 2019. It explained its view that School A remained suitable and had addressed the safeguarding issues appropriately. It also commented on the other issues of the complaint.
- When Miss X asked to escalate the complaint further, rather than investigating and responding at the second stage of its complaints process, the Council decided to send the complaint for a “management review”. The outcome of this was sent to Miss X on 1 March 2019.
- It took until September 2019 for the Council to respond at the second stage of the complaints process. It says this was, in part, justified because it has agreed to a request from Mrs X to contact the school and review its records. The Council could not do this between July and September. The Council’s response acknowledged the historic incident in which Y was injured was serious but it considered the schools actions to keep Y safe had been appropriate. It did not alter its view on Miss X’s complaint overall.
Was there fault by the Council
- We cannot consider the actions of schools themselves, rather our investigation considers the Council actions. I am also not in a position to consider what happened as far back as 2015. However, I have noted the history and I recognise it is important background to Miss X’s concerns.
- I recognise Miss X was concerned about Y, but I found there was no fault by the Council in terms of the safeguarding issues Miss X raised. The Council considered the school had looked at the issues appropriately and it had made reasonable suggestions to maintain and check on Y’s safety following the more recent reports of injuries that Miss X made. I note the LADO was involved. However, as there was no evidence of abuse that involved an adult, the LADO decided not to take any action. This is a decision the LADO is entitled to reach. I found the Council decided properly that there were no grounds to pursue an investigation further and it decided properly that School A was still a suitable school for Y because it considered he was safe there and it was able to meet his needs. I appreciate Miss X disagreed.
Education and EHCP Provision
- As the Council considered School A remained a suitable school for Y, its initial response to Miss X’s concerns was to explain this and encourage Miss X to send Y back to school. It confirmed he had a place on the school roll. The school had made suggestions to maintain Y’s safety and the Council did not consider there was a safeguarding concern at the school. So, I do not consider this was an unreasonable position for the Council to take during January and February 2018.
- It was originally Miss X’s decision to remove Y from School A. For the reasons set out above I do not consider Y’s lack of education in January and February 2018 was fault by the Council. Y had a school place at School A and the Council was encouraging Miss X to send Y there. It also began considering attendance measures. However, given Y’s continued absence from school, the Council should have begun to consider what measures could be put in place to provide Y with an education and to provide the support required by his EHCP until the matter was resolved. I would have expected the Council to consider, from March 2018, how Y could be educated at home or elsewhere while the issues Miss X raised were being resolved.
- By the end of June 2018, following an attendance meeting, it was very clear that Miss X was not prepared to return Y to School A and he still remained at home without education or support. While the Council considered School A remained suitable, it seems evident the relationship with the school had irretrievably broken down and Y would need to be found another placement. It was also evident that Miss X was struggling to cope.
- As Y had been out of school since January 2018, receiving little of his education and EHCP provision and there was little prospect of Y returning to School A, the Council should have acted to either address what it considered non-attendance at School A or to begin finding him a new school placement. In the event, the Council allowed the situation to drift between March and November 2018 before it made the referrals that eventually found Y a new school placement. The lack of educational provision and the delay in taking meaningful action to seek a new school between March and November was fault.
- It was clear the relationship between Miss X and School A had broken down. It could have been resolved far more quickly had the situation not been allowed to drift. Had the Council sought a school placement for him sooner, it is likely Y would have been back in education, and in receiving the support in his EHCP plan in or around May 2018. The Council could also have mitigated the impact to Y by providing alternative provision.
- If a place was not available in May 2018, I would have expected the Council to have continued to make provision for Y from that time. In the event Y only started back at school, in March 2019, so, I found Y lost out on education and EHCP provision as a result of the delay in finding a new placement for around 10 months.
- Our focus report “Out of School…out of mind?” from 2011 reiterates that councils do not only have a duty to provide education for those missing school for illness or exclusion but for other reasons too. The law states that councils have a duty to act where a child is absent for ‘illness, exclusion or otherwise’. It also highlights the need to consider what interim solutions should be provided whenever there will be a delay in organising new provision for a child.
Delay issuing Y’s EHCP in Spring 2018
- The Council began the process of amending Y’s EHCP on 8 February 2018. This means it should have issued the amended final EHCP within eight weeks, by 5 April 2018. The final EHCP was issued on 27 April in this case. Although this is outside of the eight weeks required by the SEN Code of Practice, I note that the Council issued two draft EHCPs to Miss X for comment during this period. It allowed her time to respond to each. I found there was no significant impact as a result.
Early EHCP Review October 2018
- I found it was not fault by the Council for declining to bring forward Y’s EHCP review to October 2018. Y’s EHCP was reviewed in April 2018 and based on the information available to the Council it decided an early review was not necessary. The Council did consult an Educational Psychologist to consider Miss X’s view that Y’s needs were required a LD school rather than an SLD.
- However, the Council should have sent a formal letter to Miss X to confirm its decision not to grant an early EHCP review and to explain she could appeal this decision. The failure to do so was fault. I do not consider it caused significant injustice to Miss X given the key issue was educational provision and Y’s school place at this time. However, it is important that councils provide the appropriate signposting for parents to show when they can appeal decisions. Not to do so is a breach of the SEN Code of Practice.
- There was no fault in the Council arranging for Mrs X’s complaint to be considered by senior officers as a management review. Although this is no longer a step the Council takes, it was part of the complaints policy that existed at the time Mrs X complained. So, there was no failure to follow the complaints policy. Nevertheless, the complaint was not decided within the timescales the policy sets out. The Council says part of the reason was to accommodate a specific request from Mrs X. I note this was the case. However, the time taken to resolve the complaint itself was not the key issue. The main issue in Mrs X’s complaint is the education and EHCP support that Y was not receiving and the difficulties that caused for a prolonged period.
- Within four weeks of my final decision, the Council should take the following action:
- To recognise that Y did not receive an education, or the support set out in his EHCP for around 10 months longer than necessary, I recommend the Council pays Y, via Miss X £5000 to be used in his best interests.
- To recognise the difficulties that this undoubtedly caused Miss X during the same period, and the time and trouble she spent raising this complaint, I recommend the Council pays her £500.
- There was fault by the Council. I have now completed my investigation and closed my file on the basis the Council meets the recommendations agreed.
Investigator's decision on behalf of the Ombudsman