Summary: Mrs B says the Council failed to act when she raised safeguarding concerns about her son being bullied at school and failed to put in place full-time education when he stopped attending school. There is no fault in how the Council dealt with the safeguarding concerns. The Council delayed issuing an education, health and care plan which affected Mrs B’s appeal rights about the school named and failed to put in place an added subject when Mrs B asked for it. An apology, payment to Mrs B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mrs B, complained the Council:
• failed to investigate and act when she raised safeguarding concerns about her son being bullied at school;
• failed to put in place full-time education when her son stopped attending school;
• placed her son in a school that was unsuitable for his needs.
2. Mrs B says the Council’s actions mean her son has missed out on education and it has impacted on her health.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
4. 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)
5. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with an organisation’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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have investigated Mrs B’s concerns about how the Council dealt with the safeguarding issues and its failure to put in place full-time education for her son. I have not investigated Mrs B’s concerns about the suitability of the school placement for her son. I explain my reasons for that at the end of this statement.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
10. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Buckinghamshire safeguarding children's board procedures manual

11. This says bullying may be defined as behaviour by an individual or a group, repeated over time, which intentionally hurts another individual or group, either physically or emotionally.
12. Bullying can happen face to face or virtually, for example online via social networking sites, online forums or gaming or via mobile phones. The use of information communications technology (ICT) to bully impacts on the way bullying takes place - it can happen at any time of day and can be much more subtle or hidden, including taking place when a child is alone in their room. It also potentially involves a much larger audience, including a large number of bystanders and spread very quickly to become 'viral'.
13. It is important to recognise that in some instances bullying will raise safeguarding concerns and/or involve a criminal offence. Bullying behaviour may result in a criminal investigation where there is physical assault, damage, threats or harassment.
14. All settings in which children are provided with services or are living away from home should have rigorously enforced anti-bullying strategies in place and clear procedures on how to refer to children's social care if safeguarding concerns are identified.
15. Since 1999, schools have been under a legal duty to put measures in place to promote good behaviour, respect for others and to prevent all forms of bullying among pupils. In practice, schools need to draw up an anti-bullying policy linked to the behaviour policy.
16. Bullying may become a safeguarding issue and, particularly in cases of sexist, sexual and transphobic bullying, schools must consider whether safeguarding processes need to be followed. This is because of the potential for this form of bullying to be characterised by inappropriate sexual behaviour and the risk of serious violence (including sexual violence).
17. It is important for professionals to consider whether to apply safeguarding procedures both to the young people being bullied, and to the perpetrators. Victims of bullying may need to be protected from the child or young person engaging in bullying behaviour using safeguarding processes. Safeguarding processes may need to be applied to perpetrators in cases where their behaviour is an indication they are experiencing or impacted by abuse.
18. A restorative approach and the use of restorative enquiry and subsequent mediation between those involved can provide an opportunity to meet the needs of all concerned. The child who has been bullied has the chance to say how he or she has been affected. The opportunity is provided for the child doing the bullying to understand the impact of his or her actions and to make amends.
19. Both the child engaged in bullying behaviour and those who are the target of bullying should then be closely monitored. The times, places and circumstances in which the risk of bullying is greatest should be ascertained and action taken to reduce the risk of recurrence.
20. Whatever plan of action is implemented, it must be reviewed with regular intervals to ascertain whether actions have been successful by consideration of whether the target of bullying now feels safe and whether the bullying behaviour has now ceased. Consideration should also be given to lessons learned in order to constantly review and improve practice.

Education legislation and guidance

21. The Education Act 1996 (section 19) provides the basis for statutory guidance. This says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. 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.
22. The only exception to this is under subsection 3AA of the 1996 Act, where the physical or mental health of the child is such that full-time education would not be in his/her best interests. In such circumstances, the Council can arrange education on a part-time basis, based on the child’s best interests.
23. The Government has issued guidance: Arranging education for children who cannot attend school because of health needs (the guidance). This makes clear the law does not define full-time education but children with health needs should have provision, where possible, which is equivalent to the education they would receive in a mainstream school.
24. The guidance says if a child receives one-to-one tuition, the hours of face-to-face provision could be fewer as the education may be more intensive.
25. A child or young person with special educational needs (SEN) may have an education, health and care plan (EHC Plan). This document 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 their needs, education, or the name of the educational placement. Only the tribunal or Council can do this.
26. The special educational needs code of practice (code of practice) says EHC Plans must be reviewed by the local authority as a minimum every 12 months. Within four weeks of the review meeting, the local authority must decide whether it proposes to keep the EHC Plan as it is, amend the plan, or cease to maintain the plan, and notify the child’s parent or the young person and the school or other institution attended (the amendment notice).
27. If the EHC Plan needs to be amended, the local authority should start the process of amendment without delay. A final EHC Plan should be issued within 8 weeks of the amendment notice.

What happened

28. Mrs B’s son has an EHC Plan which named school A. In November 2022 Mrs B reported a sexual assault incident in relation to her son to school A. Mrs B believed school A was unsuitable for her son and asked the Council for a specialist provision.
29. On 24 March 2023 school A held an emergency annual review. At that meeting school A told the Council it could not meet Mrs B’s son’s special educational needs. At that point Mrs B’s son was not attending school due to his mental health and vulnerability but the school had put in place some alternative provision.
30. Mrs B contacted the Council on 26 August to raise concerns about her son being out of school due to bullying. Mrs B said she believed her son needed to move to a specialist school, as the educational psychologist had previously recommended.
31. Mrs B contacted the Council again in September 2023 to raise concerns about how school A had handled the incident in November 2022. The Council signposted the family to the early help team. The Council said it would meet with school A to discuss what had happened in November 2022.
32. The Council officer met with school A’s safeguarding lead on 19 September. Following that the Council told Mrs B it was happy with the steps the school had taken to deal with the issue.
33. On 4 October the Council issued a final EHC Plan naming school A. Mrs B appealed. Mrs B’s son was not attending school A and the Council was providing 15 hours alternative provision.
34. The tribunal issued a consent order on 19 February as the Council had agreed to name school B, which was Mrs B’s choice of school for her son. The Council cancelled the alternative provision for Mrs B’s son. Due to the need to put in place travel arrangements Mrs B’s son did not start at school B until 21 February. Mrs B removed her son from the school on 23 February as she was not satisfied it was suitable for him.
35. Mrs B contacted the Council on 28 February to raise concerns that it had not put in place alternative provision as her son could not attend school B. The Council said it did not believe Mrs B had given the school sufficient time to see whether it was suitable but agreed to arrange alternative provision. That alternative provision started on 22 March. By that point the Council had issued another EHC Plan which named the type of school needed as specialist.
36. In April Mrs B asked the Council to continue the alternative provision during the school holidays as her son had missed out on support. The Council explained it did not make alternative provision available during school holidays.
37. On 9 April Mrs B asked for extra funding for her son to study computer science. The Council agreed to ask the provider whether it could cover that.
38. By the beginning of May Mrs B had identified school C as a suitable placement. Mrs B told the Council that. The Council said it could not arrange the placement until school C responded to the consultation to say it was suitable.
39. The Council agreed the school placement at school C on 5 June. On 11 June the Council issued a new EHC Plan naming the school C. Mrs B’s son is now attending school C.

Analysis

40. Mrs B says the Council failed to investigate and act when she raised safeguarding concerns about her son being bullied and sexually abused at his school. The evidence I have seen satisfies me when Mrs B made the Council aware of her concerns it met with the schools safeguarding lead to discuss what action the school had taken. As a result of those discussions the Council was satisfied the school had taken appropriate action and there was no need for the Council to consider the matter further.
41. I recognise Mrs B strongly disagrees with that decision. However, it is not the Ombudsman’s role to comment on the merits of a decision reached without fault. In this case I am satisfied the Council visited the school and considered the investigation the school had undertaken and the actions the school had taken in response. I therefore could not say the Council failed to properly consider the issue. So, I have no grounds to criticise it.
42. Mrs B says the Council failed to put in place full-time education for her son when he stopped attending school. Mrs B says this meant her son was out of school for more than two years.
43. I can see that Mrs B’s son stopped attending school A following the bullying incident in 2022. The evidence I have seen though satisfies me the school put in place alternative provision, intending for Mrs B’s son to return to the school. I am also satisfied the Council continued to consider school A a suitable school and was satisfied with the arrangements school A had put in place to provide Mrs B’s son with alternative provision until he could return to the school site. I therefore cannot criticise the Council for not putting in place alternative provision before the annual review took place in March 2023.
44. I am concerned though the Council delayed issuing a new EHC Plan following the review in March 2023. The evidence I have seen satisfies me school A raised concerns at that review about whether it could meet Mrs B’s son’s needs. The Council should have completed the review process and issued a final EHC Plan within 12 weeks of the review meeting. The Council failed to meet that timescale in this case as it did not issue a final EHC Plan until October 2023. That delay is fault.
45. I am satisfied though when the Council issued a new EHC Plan in October 2023 it again named school A as a suitable placement for Mrs B’s son. I am therefore satisfied if the Council had completed the process and issued a final EHC Plan in June 2023 as it should have done the outcome would not have been any different as the Council would likely have still considered school A a suitable school. However, the delay issuing the final EHC Plan delayed Mrs B’s right of appeal. As remedy for that I recommended the Council apologise to Mrs B and pay her £100. I also recommended the Council remind officers dealing with reviews of EHC Plans of the need to comply with the statutory timescales. The Council has agreed to my recommendations.
46. I cannot consider any concerns Mrs B has about failure to put in alternative provision between October 2023 and February 2024. That is because Mrs B put in an appeal when the Council issued a new EHC Plan in October 2023, naming school A. When an appeal has been submitted the Ombudsman does not have jurisdiction to consider any alternative provision put in place until the appeal ends. That means I cannot consider any failure to put in place alternative provision until 19 February 2024 when the appeal ended.
47. The Council accepts Mrs B’s son did not receive any education on 19 and 20 February 2024. That is because the Council stopped the alternative provision on those dates as Mrs B’s son had a school placement at school B, which was Mrs B’s choice of school. However, Mrs B’s son could not start at school B until 21 February as the transport arrangements were not yet in place.
48. Given the Council knew Mrs B’s son needed transport to school I would have expected it to consider continuing the alternative provision until Mrs B’s son started at the new school. Failure to do that is fault and meant Mrs B’s son missed out on two days education.
49. I recognise there was then delay putting in place alternative provision when Mrs B removed her son from school B on 23 February. The evidence I have seen satisfies me the Council put in place alternative provision on 22 March. I understand Mrs B’s concern about that delay. However, it is also clear from the Council’s communications with Mrs B that it considered school B a suitable school and believed Mrs B had not given the school enough time to see whether the issues could have been sorted out. The evidence also satisfies me that is a view shared by school B. What that means is the Council was satisfied there was a school placement available for Mrs B’s son. In those circumstances, and as Mrs B withdrew her son from the school without notice, I do not consider the delay putting in place alternative provision until 22 March warrants a finding of fault.
50. Mrs B is concerned about the amount of education put in place for her son as alternative provision. The evidence I have seen satisfies me the Council put in place 15 hours alternative provision for Mrs B’s son. That is a significant alternative provision package. I appreciate 15 hours is less than a child receives in school. However, alternative provision is also provided on a one-to-one basis and is therefore more intensive than provision in a classroom. While I appreciate Mrs B struggled to have her son at home due to her own medical difficulties the package of support the Council put into place is still a significant one. I therefore do not criticise the Council for putting in place 15 hours support from 22 March.
51. I note though Mrs B asked the Council to put in place extra provision to allow her son to study computer science. The evidence I have seen satisfies me Mrs B asked the Council for that in April 2024. I have not seen any evidence the Council put that provision in place, despite it appearing to support Mrs B’s request. Failure to put in place the additional two hours provision is fault. That affects the period up until Mrs B’s son started at school C in June 2024. As remedy for that I recommended the Council apologise to Mrs B and pay her £200. The Council has agreed to my recommendation.
52. Mrs B says the Council told her she could not have further hours for her son as it was too expensive. I have seen no evidence to support that allegation. The Council did include in its communications with Mrs B discussion about the cost of putting various provisions in place. It is not fault for the Council to do that. However, that was not in the context of telling her she could not have further hours due to the cost. I therefore have no grounds to criticise the Council here.

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Agreed action

53. Within one month of my decision the Council should:
• apologise to Mrs B for the distress she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £300; and
• remind officers dealing with EHC Plans of the need to ensure the timescales set out in the statutory guidance are followed.

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Final decision

54. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

55. I have not investigated Mrs B’s concerns about whether the Council placed her son in the right school in 2019. That is because the school the Council placed Mrs B’s son in was the school named on his EHC Plan. As Mrs B had a right of appeal about the school named in the EHC Plan the Ombudsman does not have jurisdiction to consider Mrs B’s concerns about that.
56. Nor have I investigated Mrs B’s concerns about whether the Council should have required her son to continue to attend the school named on his EHC Plan following incidents of bullying. That is because I am satisfied the Council issued a further EHC Plan naming the same school and Mrs B appealed. That puts this part of the complaint outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman