The Ombudsman's final decision:
Summary: The Council was not at fault in how it investigated Ms B’s allegations that her daughter was assaulted at school. I have not found fault with how the Council conducted the investigation, so I cannot question its decision. There was also no fault in the Council’s actions while Ms B’s daughter was out of school between March and November 2017. There was a school available which would deliver her special educational needs provision, but Ms B did not send her there.
- The complainant, whom I refer to as Ms B, complains that the Council did not provide alternative education, or deliver special educational needs (SEN) provision, to her daughter while she was out of school. I refer to her daughter as C.
- Ms B also complains about the Council’s investigation of her allegations that C had been assaulted in school. She disagrees with the outcome and complains that she was not told of the outcome for several months after the Council had completed its investigation.
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)
- 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
- I considered evidence provided by Ms B and the Council. I wrote to Ms B and the Council with my draft decision and considered their comments.
What I found
- I will consider each part of Ms B’s complaint in turn, below.
Investigation into assault allegation
- On 17 March 2017 the Council received a referral from the Police, who reported that Ms B had alleged that C had received bruises at school. Ms B had said that these bruises were a result of an incident during which staff members restrained C.
- On 27 March the Council held a strategy meeting which was attended by relevant professionals, including the Police and the local authority designated officer (LADO). The meeting agreed that the Police and the Council’s children’s services department would visit Ms B and speak to her, but that there were no grounds for a criminal investigation. The meeting also agreed that children’s services would conduct an assessment of the risk to C.
- On 13 April the Police and the Council visited Ms B, and told her the restraints were lawful and there would be no continued role for either organisation. The Council completed its assessment on 18 April and said it would take no further action.
- On 26 July Ms B contacted the LADO and asked about the outcome of the Council’s investigation. The LADO emailed relevant professionals and asked them to respond to Ms B’s questions.
- On 27 July the Council’s children’s services department emailed the LADO and said:
We were clear at the end of the visit [on 13 April] that there was no further role for Children’s Social Care as there were no concerns about the child being at ongoing risk at home or education.
- The Council says that, shortly after this, Ms B sent a complaint about the LADO to Ofsted and approached the media. The Council says the LADO passed the matter to the Head of Children’s Safeguarding to respond. He responded on 10 November 2017.
Local child protection and safeguarding procedures
- These procedures set out how the Council should respond to allegations against people who work with, care for or volunteer with children.
- They say the parent(s) of the child should be helped to understand the processes involved and kept informed about the progress of the case and of the outcome.
- They say the employing organisation, with children’s services and the Police, should liaise with one another, consider the impact on the child concerned and ensure the child’s needs are addressed.
- The local procedures (above) say that, when the Council receives an allegation against a person who works with children, it must keep the parent or child aware of the progress of the investigation and, if there are no criminal proceedings, the outcome. The Council must also liaise with other agencies, ensure the child is supported if necessary, and address the child’s needs.
- The Council did all of this. The Police decided there would be no criminal investigation and there was no plan to begin disciplinary procedures. The outcome of the strategy meeting was that the Police and children’s services would visit Ms B.
- This visit took place a fortnight afterwards. The case note of the meeting says both the Police and children’s services told Ms B that they would take no further action. This was the end of the investigation.
- Having reviewed Ms B’s complaint, it appears that she did not understood that the matter was closed, and thought that, even though the Police and children’s services had ended their involvement, there may be further action taken.
- This was an unfortunate misunderstanding. However, I do not consider it to be fault by the Council. It told Ms B it would not take the matter further, even if she still thought an investigation was still under way.
- When Ms B contacted the LADO directly to ask about the investigation, the LADO passed the matter to the Head of Children’s Safeguarding to deal with after Ms B made a formal complaint. He responded four months later.
- There could have been a quicker response. However, I do not consider this relevant to when Ms B was told about the outcome of the investigation into her allegations. She had already been told in April that the Police and the Council would not be taking any further action.
- As set out in paragraph 4 of this decision statement, I cannot question a decision a council has made if there was no fault in the way it made its decision. I consider that the Council, in response to Ms B’s allegations, followed correct procedure and told her the outcome. As a result, I have not found fault with the Council.
Lack of education between March and November 2017
- On 19 March 2017, after Ms B had made allegations of assault against members of staff at C’s school, she asked the Council to find C a new school. She sent the Council photographs of C’s bruises to support her request.
- On 21 March the school arranged for C to have an emergency annual review on 19 April. On the same day Ms B told the Council that C should not have to return to the school because she had been the victim of an assault.
- On 23 March the Council’s home tuition service told its SEN department that it would not tutor C because she had a school place available.
- On 19 April C’s annual review was held. The meeting discussed potential alternative placements, and C’s school asked that C continue to attend the school while the Council explored other placements. Ms B refused to send C back to school. The school agreed to send work home for her.
- On 26 April the Council told Ms B that her new school preference would not be suitable. It contacted another school at Ms B’s request.
- Between April and September the Council sent consultations to different educational placements, and discussed potential placements with Ms B. During this time C’s school placement remained available to her, but Ms B refused to send her there.
- On 21 September Ms B’s new preferred placement offered a place, and provided details of provision and costs. On 5 October the Council put the case to its joint agency placement panel, which agreed to the placement.
- On 17 October C’s new placement told the Council it had agreed a start date of 2 November.
- On 2 November C’s previous school removed her from its roll, and she started at her new school.
Law and guidance
- Section 19 of the Education Act 1996 requires that councils provide suitable education for:
“… those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”.
- Section 324 of the Education Act 1996 says that, if a council maintains a statement of SEN for a child, it must deliver the SEN provision set out in the statement unless the child’s parent(s) have made suitable arrangements for the provision.
- Section 42 of the Children and Families Act 2014 requires that, when a council maintains an education, health and care plan for a child, it must make sure it delivers the special educational provision set out in the plan.
- It clearly took some time for the Council to find a new placement for C – it began looking in April 2017 and C started her new school in November. However, during that time (six months of which was term-time) the Council was going to efforts to find a new school.
- Even if the Council could have found a new school more quickly, the question is whether suitable education and SEN provision was available to C while she was not attending school. If it was not, the Council would have been under a legal duty to provide it until a new school became available.
- In C’s case she remained on the roll of her previous school until she started her new school. The placement did not end because the school could not meet C’s needs; it ended because Ms B refused to send her anymore, because she felt C had been assaulted by staff.
- As set out earlier in this decision statement, the investigation into Ms B’s allegations found that the restraints were legal and were necessary in the circumstances, and I have not found fault with how the investigation was conducted, so I do not consider that the Council was at fault for deciding that C was safe to return to school, whatever Ms B’s view on this was.
- If a council has arranged education for a child which is suitable and available, but – for whatever reason – the child is not making use of that education, it does not automatically mean the authority should be under a duty arrange alternative provision. It depends on the circumstances. In this case, neither the school nor the Council were preventing C from accessing suitable education and SEN provision – this was Ms B’s decision.
- As a result, I have not found fault with the Council.
- The Council was not at fault in how it investigated Ms B’s allegations that her daughter was assaulted at school. I have not found fault with how the Council conducted the investigation, so I cannot question its decision. There was also no fault in the Council’s actions while Ms B’s daughter was out of school between March and November 2017. There was a school available which would deliver her special educational needs provision, but Ms B did not send her there.
Investigator's decision on behalf of the Ombudsman