The Ombudsman's final decision:
Summary: When managing the educational and social care needs of a child excluded from school and having removed home education, the Council failed properly to assess and address those needs while the child was in its care, leading to lost education, distress and inconvenience.
- The complainant, whom I shall refer to as Ms X, complains that when addressing the educational and welfare needs of her son (whom I shall refer to as Y) who for some time received home education and successfully attended vocational training the Council failed to:
- Include Ms X in meetings or involve her in decision making and tell her about important issues arising after Y moved into accommodation provided by the Council under a Section 20 agreement;
- Issue and share with Ms X, Y’s care plan, minutes of meetings, or notes and assessments about Y’s wellbeing and educational needs;
- Offer services to the family in October 2016 or when Y was bailed by Police in January 2017;
- Ensure Y attended doctor’s appointments;
- Consider providing an alternative placement to school or explore alternative ways Y could continue with a supervised vocational placement;
- Address complaints about social worker actions and attitudes towards the parent;
- Properly consider appointing and maintaining an independent advocate for Y;
- Properly assess Y’s need for a mentor and explain why it decided to end the mentoring service it had previously provided.
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)
- If 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
- In considering this complaint I have:
- Spoken with Mrs X and her representatives and reviewed the comprehensive documentary information presented with her complaint and during the investigation;
- Put enquiries to the Council and considered its responses including social care and educational services file notes;
- Researched the law, government guidance and policy;
- Shared with Mrs X and the Council drafts of this decision and reflected on comments made in response.
What I found
- Under Section 19 of the Education Act 1996 any child between the age of 5 and 16 years who is not attending school must be provided with a ‘suitable education’. That can be provided in a school, a pupil referral unit or other agency. Alternatively, a parent may provide home education.
- The law says the education should be suitable to the child’s age, ability and aptitude and any special educational needs the child may have. The education provided should be on a full-time basis unless it is in the interests of the child to provide part time education. This may be for reasons relating to the child’s physical or mental health.
- A focus report issued by the Ombudsman called “Out of school...out of mind” sets out government regulations on the minimum number of hours councils must provide when a child is out of school. It includes case studies of some Ombudsman decisions on this subject.
- Where parents elect to home educate a child the Council has no duty to monitor its quality. However, councils should intervene if the child is not receiving a suitable education. Therefore, some periodic monitoring should take place. If the Council has concerns it should tell the parent and offer support to address any shortfalls. Councils do not have any legal right to enter the home to review the home education programme without invitation.
- The government guidelines for councils on Elective Home Education say a council does not have to name a school in a Statement of Educational Needs (Statement), if satisfied parents have made suitable arrangements for educating the child. The Council does not have to name a secondary school for a home educated child.
- A ‘looked after child’ (LAC) is defined by the Children Act 1989 as a child who is looked after by the Council where a court has issued a care order or the Council’s children’s services department has cared for the child for more than 24 hours. On reaching 18 the child ceases to be looked after by the Council.
- In the Department for Education’s guidance “Children Missing Education” amended in September 2016 a child missing education is defined as a child of compulsory school age who is not registered at a school and not receiving suitable education otherwise than at home.
- Under Section 20 of the Children Act 1989 the Council has a duty to provide a child with somewhere to live because the child does not have a home; or safe home and:
- There is nobody with parental responsibility for him;
- The child has been lost or abandoned;
- The person caring for the child cannot provide him or her with a suitable home whatever the reason and regardless of whether this is a short term or long-term problem.
Codes of Practice
- Parents educating children at home must provide a suitable education. Where the child has a statement of special educational needs the Council has a duty to review the statement yearly. The Special Needs Code of Practice says the Council must ensure the parent is providing for the special needs and if not, it has a duty to offer provision.
- The Code of Practice says a council may end a statement if it believes it is no longer necessary. However, it should only do so “...after careful consideration ... of all the circumstances and close consultation with parents.”
- If it decides to end a statement the Council must write to the parent and explain the right of appeal. Councils should give sensitive and positive encouragement to parents to contribute to a review.
- Guidance entitled “Promoting the Education of Looked-After Children and previously Looked- After Children” issued in 2014, and again in 2018 gives guidance on deciding on provision. Councils should apply the principle of taking into account the child’s wishes and feelings when deciding the suitability of the setting of any educational provision offered.
Education funding for alternative provision
- Before April 2017 the Education Funding Agency provided support for education for children, young people and adults especially those not enrolled with a school or excluded from school. The Education and Skills Funding Agency replaced this agency. It has a similar role and will provide funding for specialist courses, apprenticeships and further education. The Agency is a government agency outside the control of the local authority.
Background to the complaint
- In 2015 the Ombudsman considered a complaint by Ms X about Y’s education. In March 2016, we issued a decision upholding her complaint. We found the Council had failed to properly manage reviews of Y’s home education and prevent the loss of full time educational provision. We decided the Council should complete an assessment of Y’s needs, consider issuing an EHC Plan and pay Ms X £150 for the time and inconvenience in bringing her complaint to the Ombudsman.
- Ms X says the faults identified in that investigation have continued. She says the Council has not provided consistent guidance or action. Having said in response to the earlier investigation the home education plan adopted by Ms X met Y’s needs and ability, two months later Ms X says the Council questioned whether that remained the case.
- In a statement presented to me as part of this complaint Y says the Council’s educational service, child social care and adult social care are:
- Not listening to him or Ms X
- Rude to him and Ms X;
- Making decisions without involving him and Ms X;
- Putting pressure on them;
- Failing to give enough time to sort things out;
- Not taking into account his and Ms X’s disabilities.
- In April 2016, an Educational Psychologist assessed Y following a referral by the Council to review his special educational needs. Y had been subject to a Statement of Special Educational Needs in 2012 but after the placement in primary school broke down Ms X elected to home educate Y.
- In June 2016, the Council aware of domestic violence within the family home offered the family help under its Domestic Violence Prevention Programme but the family declined the offer.
- In September 2016, the Multi Systemic Therapy team wrote to Ms X explaining it was withdrawing its service because Y did not display behaviour that warranted their involvement. The letter says MST works with families where “…the young person is exhibiting serious anti-social behaviours…” It continues by saying its worker witnessed “…a warm loving relationship with the usual teenager struggles...”. The letter ended by saying following Y’s enrolment at a new college placement “…the concerning behaviours that had led the social worker to refer to MST…had subsided and [Ms X’s] parental skills meant that [Y] was doing as asked…” Therefore, it did not consider the family needed an intensive twenty-week intervention.
- By October 2016 Y had received home education for four and a half years. Ms X found a placement at a college for Y to study for an equine qualification, Maths and English as part of the home education programme. Y started at the College in September 2016. Following an incident at the College it withdrew Y’s place. Although the Council had not arranged Y’s place it asked the College to reconsider. Ms X said she would appeal against the exclusion. Meanwhile she wanted Y to continue with his studies for an equine qualification. As Y remained home educated the Council’s duty to offer alternative placements or education did not arise.
- The Council’s social care officers contacted mental health and medical professionals to offer help to the family. Officers agreed MST might again help the family. However, the Council says MST needed to be certain the family would work with them so they could support Y at college. The College decided to exclude Y until he reached the age of 16 (i.e. in a years’ time) because of the number of incidents that had taken place. The Council says the College refused offers of additional resources or funding to maintain Y’s placement. Therefore, Y would have to remain home educated.
- Given this incident and the college’s withdrawal of a placement that formed part of the home education programme the Council decided to review whether that programme provided suitable education.
- Child care services continued contact with Y and when he stayed away from home with friends the team contacted him to ensure he remained safe. Officers updated Ms X. On 31 October 2016 officers met with Y to discuss issues and his recent absence from home.
- In November 2016, the Council decided to withdraw Y’s Statement or transfer it to an EHC plan because Ms X told the Council (in April 2016) she did not want a review or the Statement to continue. The Council says Ms X told the Council “...the statement is not needed and the best support [Y] can have is to dissolve it...” Therefore, the Council withdrew it and did not replace it with an EHC Plan. Ms X had the right to appeal against that decision to the Tribunal if she wanted Y to have an EHC plan. Ms X says the Council took too long to consider her request and before deciding to end it in November 2016 should have consulted her again.
- Ending the Statement did not end the Council’s duty to consider if Y was receiving a suitable education. The Council says its officers wanted to help Ms X continue with their preferred choice of home education.
- Y became a Looked After Child on 4 November 2016 following an incident in the home. Officers visited him at his temporary home to establish Y’s wishes and feelings. Y returned home on 21 November 2016.
- The Council’s Elective Home Education policy says in most cases it would not be appropriate for a looked after child to receive home education. Therefore, at the Looked After Child multi-agency meeting on 18 November 2016 the Council considered whether it should replace Y’s home education with some other provision. Ms X did not attend but her advocate attended on her behalf. The meeting agreed to provide alternative tuition while Y remained a looked after child. The social worker was to discuss providing a specialist teacher for Y. Y would consider writing an apology to the College to see if he might be taken back. However, the meeting did not rule out a home education package. If officers approved a home education package the Council would reconsider whether Y should resume home education when he returned home. The Council says it wanted to find the least disruptive solutions for Y and resuming home education was one of those choices.
- At the end of November 2016 Ms X withdrew her consent to the Section 20 placement. This ended Y’s status as a looked after child. He resumed home education under Ms X’s supervision on his return home. The Council’s duty to provide alternative provision ended if it accepted the home education programme provided by Ms X provided a suitable education for Y.
- Given its concerns that home education might not best meet Y’s needs the Council decided to explore ways in which to offer a school place to Y. It considered the In Year Fair Access Panel procedure but having decided not to continue with the SEN or an EHC Plan the Council did not have access to any recent assessments of Y’s educational needs or ability.
- At a meeting in December 2016 Ms X said she felt the decision to deem home education unsuitable had not considered her views. The MST team had begun work with the family and believed continuing with Ms X’s programme of home education might help the family. Therefore, the meeting agreed to review home education in January 2017.
- In January 2017, the Council considered Y’s home education unsuitable because it feared he was not engaging with it. The Council says it received a text from Ms X raising concerns about the home education. It said: “…whatever you put in place…Y will not comply, just like he doesn’t with his education I put in place…”. Ms X says the Council may have taken her remarks out of context. On 13 January 2017, the Council wrote explaining why it now believed Y was not being provided with a suitable education. It proposed a school placement for Y which would enable the Council to assess what education provision he needed. It proposed registering Y as a Child Missing Education and if Ms X did not ensure he received an efficient and full-time education she may face prosecution. Ms X told the Council she did not want Y registered at a school.
- After an incident in the home in January 2017 the Council held a strategy meeting and Ms X agreed it should accommodate Y under Section 20 again and find him help. Y was now a Looked After Child again. A Council social worker directed Y to work and engage with the Community Adolescent and Mental Health Service (CAHMS), continue taking medication for his ADHD and referred him for support and medication to deal with his ‘Intermittent Explosive Disorder’. The social care notes say Ms X who is mostly wheelchair bound was at risk from Y and unable to impose boundaries.
- While at the care facility the Council says Y engaged in educational activity every day. As Y was again now a Looked After Child the Council had responsibility for providing education. The Council arranged to meet an educational service provider in February 2017 to plan educational provision for him. Meanwhile Y received three weekly sessions from a mentor and expressed a preference for equine studies.
- Y appeared at the Magistrates Court in February 2017 charged with an assault on Ms X. The Court gave him a six-month referral to the youth offending team.
- At the Looked After Child Review in February 2017 Ms X said she preferred Y remained within the care setting to receive his education. He had received three weekly sessions with a mentor who helped re-establish links with his equine placement. The Independent Reviewing Officer referred Y to an advocacy service to help him express his concerns but he did not wish to take it up.
- By 21 February 2017 Y had returned home and said he did not want to stay at the placement offered under the Section 20 Agreement. Ms X told the Council she was withdrawing from that agreement. The Council’s officers explained they still had to speak with and, if possible, see Y so they could check it was in his best interests to end the Section 20 Agreement. An officer met Y and Ms X at home with their advocate. Following that discussion, the Section 20 Agreement was terminated. Y was now no longer a looked after child.
- In March 2017, the Council says it recognised Y needed a personalised education package which recognised his aspirations. The Council wanted to complete its assessments through visiting Ms X at home. Officers met to discuss help for the family and considered:
- Funding for a mentor for Y when the current arrangement ended in June 2017;
- Funding a placement at one of several equine businesses that would meet Y’s educational needs;
- Discussing with Ms X whether it should offer this support as part of a new EHC Plan.
- Social workers had not seen Y since April 2017;
- Officers felt Ms X had not engaged with them by allowing them to visit at home;
- Ms X had refused the education package offered for Y but not given details of the college course she proposed to replace it with and the necessary safeguarding plan to help manage Y’s volatile behaviour;
- The Council had received reports of further Police interventions resulting from alleged violence by Y in the home.
The Council’s view
- In response to my enquiries the Council says it recognises both Ms X and Y are vulnerable people who are in a very difficult place. It says it wants to help the family. It says Ms X had not always worked with the social workers. Ms X has refused to attend meetings or deal with some officers and has failed to properly engage with them. Sometimes Ms X has behaved inappropriately making engagement more difficult.
- The Council has explained after the previous college placement broke down in 2016 it had concerns that if this happened again Y would be without support. If he did not receive home education the Council had a duty to enrol him at a school because he was of statutory school age. It also felt the school could monitor his progress at college and alert the Council if it needed to intervene. The Council says it believed this to be in Y’s best interest. It did not want to obstruct Y’s wishes but saw this as a suitable alternative to returning to home education. In its legal advisers’ view it could not directly fund the college place which Ms X and Y had chosen but could only fund it by enrolling him at a school.
- In response to the complaint the Council said that it has:
- Invited Ms X to Looked After Children review meetings;
- Offered visits at home to discuss any concerns;
- Considered Y as a child in need because of his volatile behaviour and difficulty in engaging;
- Given direct payments to enable a mentoring service to engage successfully with Y and looked at how to extend that service;
- Ensured while Y spent a short time in its care under Section 20 Care Act he attended doctor’s appointments and CAHMS appointments;
- Explored ways it could offer a similar workplace placement to help Y continue with his goal of achieving an equine qualification;
- Offered a school placement which Ms X rejected;
- Offered support after Y was arrested and bailed in January 2017 including support from adult social care for Ms X.
Analysis – has there been fault causing injustice?
- Since my investigation began events have continually overtaken it. It does not cover Y’s post-16 provision, or the planning for that provision but the Council’s provision once Y became a Looked After Child and it decided his home education programme was no longer suitable.
- My role is to decide if there has been fault in the Council’s management of Y’s education and support for his family and if that caused an injustice. I have read all the information presented by both Ms X and the Council. There are many allegations including poor professional practice and bullying from Ms X and counter comments from the Council. They are too numerous to be recorded in this statement but all have been considered. This statement follows a chronological path in telling the story to best illustrate Ms X’s and Y’s experience and the Council’s view on what services it has provided in response to their needs.
- Ms X and Y present as vulnerable people in crisis who need help. In Ms X’s opinion, the Council wanted to remove Y from her care; place him in a school he did not want to attend and prosecute her if she failed to ensure his attendance.
- That opinion is strong and places a barrier between Ms X and the Council. Their relationship has broken down.
- While Ms X home educated Y the Council’s only duty was to ensure he received a suitable education. It says the home education programme Ms X delivered met his needs and was therefore suitable. There is no fault by the Council here.
- By November 2016 the Council had concerns about Ms X’s safety when delivering home education because of the incidents of violence towards her by Y. In November 2016, and again in January 2017, the Council wrote to Ms X raising its concerns that her home education programmed may no longer be suitable. The Council say the violent incidents and the possibility these may indicate Y was no longer engaging with that programme led it to this view.
- In January 2017, the Council offered Y a school placement. It told Ms X if he failed to attend she may face prosecution. The Council had a duty to tell her that but recognises Ms X judged that a threat and it distressed her. Ms X knew Y was unlikely to engage with this school placement. He wanted to attend College. While the Council could have expressed its warning in more empathetic phrasing it acted without fault in setting out clearly to Ms X the consequences of Y not attending. It had a duty to follow up any non-attendance by a child of school age who is not being suitably home educated and offering that child a school placement.
- Y wanted to attend his original college placement but he had been excluded for a year i.e. until her reached 16. The Council could not insist the College accept him back or reverse its exclusion. The placement was part of Ms X’s home education programme and therefore no duty to offer alternative provision arose from this exclusion. Officers when speaking to Y noted his preference for the college placement and his desire to continue with his equine placement and qualification. The Council took this into account when approving his desire for a further college course commencing in September 2017.
- The Council continued to fund mentoring for Y and agreed to consider further home education if it felt it could be safely delivered, pose no risk to Ms X and Y would engage with it.
- Confusion arose over why the Council appeared to be insisting Y enrol at a school before he could access with Council funding a place at college in 2017. The Council says it explained this verbally several times. Put simply while Y continued with home education he could access the college course as part of that programme with alternative independent funding. However, when he applied for the course the home education programme was not considered suitable, and therefore the Council had a duty to enrol him because he was of compulsory school age and without educational provision. That is why it enrolled him at a school. He did not have to attend that school, but through this mechanism the Council could fund his college placement and offer support. The Council followed legal advice in taking this route and through it enabled Y to begin his course.
- Given the poor relationship between Ms X and the Council, she would clearly prefer the independent funding route. However, the Council’s concerns the home education programme no longer gave Y a suitable education meant it could not approve this route.
- A clearer approach would have benefitted all and possibly reduced confusion. A clear written explanation may have helped Ms X understand or give her advisers a basis for explaining the Council’s position to her. The Council accepts that for around six months (December 2016 to May 2017) the alternative tuition offered to Y was patchy.
- I find the Council acted with fault in that it failed to:
- Properly explain to Ms X in writing why it needed to place Y on a school roll to fund the college placement she and Y had chosen and why therefore independent funding could not be approved or sought;
- Provide Y with consistent alternative educational provision while a Looked After Child and give clear advice on who had responsibility for provision and support.
Recommended and agreed action
- To remedy the injustice arising from the faults identified in this investigation I recommend and the Council agrees to, within one month of my final decision:
- Apologise to Ms X and Y;
- Confirm to Ms X and Y, that while Y remains in its care his social worker will be the key point of contact with Ms P supported by the Virtual School;
- Fund and arrange mediation between Ms X, Y and appropriate Council officers (to be identified by the independent advisory service) to restore a working relationship between them;
- Through Y’s social worker reminds Y it will fund an additional six months educational programme for Y to help him catch up with lost time concentrating on improving English and Mathematical skills and inviting Y to say what he wishes to do about that;
- Fund equestrian training for an equestrian qualification (this is now in place and Y is accessing the funding);
- Through the Virtual School encourages Y in applying to the college he has chosen reminding Y the College has said it will consider him for a place;
- Fund through the Virtual School Y’s horse riding lessons and exam fees, reimbursing Ms X on presentation of receipts showing payment for these from 2 January 2018 when Y entered the Council’s care;
- Pay Ms X £150 in recognition of the avoidable time and trouble she has been put in following up her complaints and distress caused.
- I find the Council was at fault in failing to provide appropriate educational provision for a vulnerable child while in the care of the Council resulting in lost education, and distress and inconvenience to both Y and Ms X.
Investigator's decision on behalf of the Ombudsman