The Ombudsman's final decision:
Summary: Mr X complains that the Council did not follow legislation when responding to a safeguarding incident at his daughter’s early-years school. We do not find the Council at fault.
- Mr X complains that after a safeguarding incident at his daughter’s early years provider, (Provider B), the Council failed to investigate the incident properly.
The Ombudsman’s role and powers
- 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)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
How I considered this complaint
- I reviewed the complaint file and spoke to Mr X. I reviewed the Council’s response to my initial enquiries and researched the relevant law. I gave both the Council and the complainant the opportunity to make comments on my draft decision. I considered the comments received in response.
What I found
- Ofsted regulates childcare providers under the Children Act 2006 and the Care Standards Act 2000 and the regulations made under those Acts. It should use its statutory powers to take action when a relevant threshold is met.
- Councils must follow the Early Education and Childcare Statutory Guidance for local authorities March 2017, (the Guidance). They should not depart from the Guidance unless there is good reason to do so.
- The Guidance says the council should rely solely on Ofsted inspection judgments of providers as their benchmark of quality. (The Guidance, A3.8)
- However, Councils can refuse to fund providers who are judged ‘good’ or ‘outstanding’ if the local authority has reasonable grounds to believe that the provider is unable to meet any of the limited number of requirements set out in the Guidance. One of the requirements a council can make is that a provider ensures there is effective safeguarding and promotion of welfare of the children at the placement. (The Guidance, A4.26 and A4.18)
- The Council’s terms of agreement with Provider B gave the Council the discretion to withhold or suspend payment if, ‘in the reasonable opinion of the Council,’ it was ‘…delivering the Service in a negligent manner.’ (12.1 of Grant Agreement 2016)
- Local authorities may provide advice if this is requested by the provider.
- Mr X’s daughter, F, attended an early years provider, provider B. On 4 May 2016, Provider B had been rated ‘Good with outstanding for personal development, behaviour and welfare.’
- At the time of the events described, F was 3. On 11 May 2017 Mr X says F was ‘left alone’ for an unknown amount of time in the toilet area of the building. He says there were unhygienic conditions. He complained that when F’s mother, Mrs D, arrived to pick F up, she was ‘frog-marched’ to the toilet area to inspect the mess the teacher said F and another pupil had made. He said Mrs D, ‘felt demeaned and bullied.’ Mr X said the children must have been in the toilet area a long time to have created such a mess. The records show he complained to Provider B and the next day, removed F.
- Council records say that the situation was resolved at a meeting a few days later and F attended Provider B again. This is, it says, supported by a letter sent to the school from Mr X. However, Mr X says that he only said he was happy with the outcome of the meeting to protect his daughter from ‘further unequal treatment’. He said the school had said he had to remove F from the school if he wanted to continue with his complaint.
- In July 2017, Mr X removed F from the school again. He accused Provider B of treating F differently and unfairly. Mr X complained to the school. The relationship between the school and Mr X became more fraught when the school incorrectly billed Mrs D for fees that were not owed. Mr X felt the school was being deliberately victimised. When the relationship between the school and Mr X completely broken down, Mr X complained to the Council.
The complaint to the Council
- On 28 September 2017 Mr X told the Council that he wanted:
- Disciplinary action against the teacher who had, he said, bullied Mrs D
- The management committee of the school to be rebuked for its lack of procedures.
- On 2 October 2017 a Council officer, Officer A, responded. She said she had spoken with Ofsted regarding his complaints. The Council has no evidence of this conversation as it was on the phone. Officer A said that the matters Mr X raised would be included in the inspectors briefing for Provider B’s next inspection. She stated that there were ‘no indicators’ that the school was not meeting the requirements of the Early Years Foundation Stage Framework or that there was any safeguarding risk to the children. She closed the case.
- Mr X questioned whether it ‘ok’ for, among other things:
- an unlawful invoice to be issued
- the school to bully a parent
- the school to fail to inform a parent of the complaints process, and to
- say that F had to be removed from school before the complaint could continue.
- He asked for the Council’s legislative support for the ‘lack of attention’ he said the Council was giving to his complaint. The Council sent Mr X the relevant links to the legislation cited above, which sets out the Councils duties in this area.
- On 3 October 2017, having read the information set out in the links, Mr X said that the setting was in breach of its duty of care towards the children in its care. He said this was evidenced by the fact that his daughter was found in unhygienic conditions in an adult toilet. He said the school had no rota or system in place to supervise the toilet.
- Officer A responded saying that the reason the incident in the toilets came to light was because there was a supervision system in place. In response to my draft decision, Mr X said this is not correct.
- Officer A went on to say that Provider B had exclusive use of the premises and that as a result of the incident, it had made changes to the toilet arrangements and introduced a laminated sheet where staff initial when they have checked the toilets. She said that she had spoken to the Ofsted officer at length and had been told that the incident had been investigated when Mr X complained in July.
- Mr X replied saying, ‘I do not care what the school may or may not be doing now.’ He said that the fact F was out of sight from staff for a period of time meant safety requirements had been breached. He said he felt the Council had failed to act and had done nothing other than speak to the school. He said he thought the school should be closed immediately.
- On 6 October 2017 he submitted a formal complaint to the Council. He said the Council had “shirked any responsibility” to deal with what he thought was a clear breach of the obligation to keep children safe. The Council complaint form asked him what action he would like the Council to take. He responded: “Stop funding this close and force it to close!”
- On 12 October 2017, a Council officer visited Provider B and inspected the toilet area. She gave a detailed account of the area, praising its cleanliness and condition.
- Mr X continued to complain to the Council and on 27 October 2017 the Council responded setting out its statutory duty. It reflected that early years providers should have effective safeguarding arrangements in place and that, while there had been some need for improvement, the Council was satisfied Provider B had taken appropriate action to address the concerns raised.
Communication between Provider B and the Council
- During this time the records show Provider B had been in regular contact with the Council. Provider B says it informed the Council whenever Mr X made a complaint and the records show telephone conversations were had about the complaints.
- The email exchange between Officer A and a representative from Provider B, Mrs M, shows they were on first name terms. At one point in the email exchange about Mr X’s complaint, Officer A tells Mrs O that, “…[Mr X] is playing power games.” She said that Mrs O should not feel pressured into responding to Mr X.
- The records show that the relationship between Mr X and Provider B had completely broken down. Mr X felt Mrs D had been victimised by Provider B. He felt that because they had complained, Provider B had treated F differently to another child who had not complained. He felt that Provider B had not followed the complaints process. I make no finding on any of these allegations. None of the above complaints would give the Council the authority to decide not to fund Provider B.
- The Council was limited as to what it could investigate. If the Council had reasonable grounds to believe that Provider B was unable to effectively safeguard children on its premises, it could refuse to fund Provider B. But it considered the incident complained of and considered Provider B’s response to it. Provider B had offered to take steps to effectively safeguard in the future and as the Council was satisfied it would be able to meet that requirement, it did not consider withdrawing funding to be appropriate. That is a decision for the Council to make and I cannot question its judgment unless it appears unreasonable. It does not and I do not find fault.
- Mr X said he was not concerned with what the Council does now, but this is a relevant consideration for the Council. It is not the Council’s place to punish Provider B because of an incident where there allegedly might have been a lack of supervision. It considered, after investigation, that the school was able to meet the terms of the limited requirements. Mr X was aggrieved that the Council appeared to accept Provider B’s evidence without question. This is not the case. A Council official visited Provider B and found no safeguarding issues.
- From the records I have seen I am unclear if Ofsted conducted an investigation into the incident or not. But there is evidence the Council discussed the incident with Ofsted and that Ofsted did not consider there was cause for concern. It was reasonable for the Council to take a similar view.
- Councils should not withdraw funding from pre-schools lightly. Having visited the school it confirmed its view that it was able to safeguard children effectively and this is entirely in line with statutory guidance.
- I have considered the email exchange between Officer A and Mrs O. I acknowledge it reads as if the Council was supportive of Provider B and somewhat dismissive of Mr X. However, the Council took proportionate steps to further investigate Mr X’s allegations after he complained it had simply accepted Provider B’s account. It did not find any safeguarding issues and so had no reason to consider withdrawing funding. I find no fault.
- Mr X complains that the Council did not act in accordance with legislation when responding to a safeguarding incident at his daughter’s early-years school. I do not find the Council at fault. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman