Devon County Council (19 014 722)

Category : Education > Alternative provision

Decision : Not upheld

Decision date : 19 Oct 2020

The Ombudsman's final decision:

Summary: Mr B complained the Council did not ensure the special school his son attends was meeting his needs and keeping him safe. After he withdrew him from school, because of his concerns, he says the Council did not make any alternate educational provision. He says that as a result his son has missed out on the education he is entitled to. There was no fault by the Council.

The complaint

  1. Mr B complains the Council has not ensured the special school his son attends was meeting his needs and ensuring he was safe. After he withdrew him from school, because of his concerns, he says the Council has not made any alternate educational provision. And has refused to consider his complaints. He says that as a result his son has missed out on the education he is entitled to.

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The Ombudsman’s role and powers

  1. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  2. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be 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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  5. 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)
  6. 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 considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I have interviewed officers of the Council and its agents who were involved with the complaint. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

Summary of the relevant law and guidance

Special educational needs

  1. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
  2. The Council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
  3. Section 19 of the Education Act 1996 (the Act) says each local education authority shall make arrangements to provide suitable education at school or otherwise than at school for those children who, due to illness may not for any period receive suitable education unless such arrangements are made for them. The Act goes on to say suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he or she may have.
  4. The Local Government Ombudsman has issued guidance to councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time.
  5. Parents have a duty to ensure that their children of compulsory school age are receiving full-time education.

Safeguarding

  1. Councils are expected to arrange to provide advice and guidance to employers and voluntary agencies about handling allegations against people who work with children. They should have designated a particular officer, or team of officers (either as part of multi-agency arrangements or otherwise), to be involved in the management and oversight of allegations against people who work with children. Arrangements should be put in place to ensure that any allegations about those who work with children are passed to the designated officer, or team of officers, without delay. Officers are referred to as Local Authority Designated Officers (LADO).

What happened

  1. Mr B’s son, X, had an EHCP in September 2015 which named school H. Mr B reports there were problems in school over the 2018/19 academic year which he reported to the school. In late October 2019 there was a meeting at the school. Mr B withdrew X from school because he did not consider the school was providing appropriate support to X and could not keep him safe. In a letter to the school in early November Mr B set out the actions he wanted the school to take before he would return X to school.
  2. Mr B also contacted the Council with his concerns about the school. The Council advised him to report any concerns he had about the safety of a child to the multi-agency safeguarding hub and that his complaints about the school should be considered through the school’s complaint process. There was further correspondence between Mr B and the Council. The Council said it had informed the LADO of the concerns Mr B had raised but would not be in touch further with him about them.
  3. Correspondence continued between Mr B, the school and the Council over the rest of November. The Council’s position was that X was on roll at school H and the way to address the substance of the issues was by way of a review of X’s EHCP. It was for the school to make educational provision for X.
  4. Mr B complained to the Ombudsman in late November.
  5. There was a review of the EHCP in January 2020. This had been intended to be an interim review but was an annual review as the last review had taken place in January 2019. In February the Council issued an amendment notice. This was proposing some changes to the EHCP but the named school remained as school H. The Council issued the final EHCP in early April.
  6. In July 2020 Mr B met with the school and a plan was agreed for X’s return to school.

Analysis

The complaints about school H

  1. The Council referred Mr B to the school’s complaint process to pursue his concerns about the school which he did. This culminated in a response from the chair of Governors at the end of April 2020. The governors had commissioned an independent person to carry out an investigation of the events between May 2018 and December 2019. The conclusion was to support certain elements of the complaints Mr B had made.
  2. Independently of this in January 2020 Ofsted had carried out an inspection of the school. It published its report in June which found that the school’s leadership and management was inadequate and that the quality of education required improvement.
  3. The Council’s own action in response to Mr B’s complaints was for its agents to meet with the leadership team at the school. The agent advised the school to commission the independent investigation of his complaints. The agents considered the school’s processes around pupil safety.
  4. I have considered particularly carefully whether the response by the Council and its agents to Mr B’s complaints was flawed because of the later finding by Ofsted. That said the school’s arrangements for safeguarding were not effective and that accounting for pupils’ whereabouts was not taken seriously enough. But I do not consider it was fault that the agents acting for the Council did not establish this from the actions taken in November and December. Ofsted is carrying a different function and carrying out detailed on-site inspections. I am satisfied there was no fault in how the Council and its agents responded to the concerns raised by Mr B.
  5. The complaints Mr B raised were referred to the LADO but they concluded that they were not something that they should pursue as they did not refer to potential harm or risk to children from a specific employee at the school. There was no fault in that decision.

The EHCP

  1. It was clear from Mr B’s correspondence with the school and the Council in November that Mr B was very concerned about the school and the provision being made for X. He would not send his son to school and had complaints about senior members of staff at the school. In such circumstances want needed to happen was a review of the EHCP which the Council directed the school to carry out. I do not consider any delay in carrying this out was so significant that the Council should have become involved.

Alternate provision

  1. Our view is that even though a child may be on roll at a school the Council may still need to act to ensure there is alternative provision for the child. Here the Council considered that provision was available at school H and it was reasonable for X to attend.
  2. It has said the school contacted the education welfare service who, in consultation with the school, decided that seeking to enforce attendance would not benefit the family as they were in the process of reviewing the EHCP. The education welfare officer was to work with the school and Mr B to try and resolve the situation. The school was given advice on maintaining communication and engagement with the family and developing a return to school plan. The school re-referred to the education welfare service when the family continued to refuse to send X to school and were in consultation about commencing legal proceedings when schools had to close because of the pandemic.
  3. The key issue here is whether there was any fault in the Council’s approach of referring Mr B back to the school rather than making alternative provision. Mr B considers that he could not send X to the school because his concerns about the procedures in the school were so significant and X would not be safe and would not be receiving appropriate support. The Council had a role in responding to those concerns but, as I say above, there was no fault in how the Council did so. So there was no fault in the Council’s decision not to make alternative provision.

Complaint handling

  1. Mr B complained the Council failed to deal with his complaints. When Mr B complained the Council referred him back to the school and also referred the matter to the LADO. There was no fault in that approach. At the end of November Mr B said that his complaint was about the failure to make alternative provision which the Council should consider. The Council’s position was that provision was available at school H where X could attend and it did not consider there was anything to be considered under the complaint process. But it went on to say that he could complain to us and if we directed the Council to consider a complaint then it would do so. There was no fault by the Council here.

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Final decision

  1. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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