Westminster City Council (18 018 185)

Category : Education > Other

Decision : Upheld

Decision date : 28 Aug 2019

The Ombudsman's final decision:

Summary: Mr X complained on behalf of child R. Mr X complained the Council failed to provide R with suitable education after they arrived in the United Kingdom as an unaccompanied asylum-seeking child. The Council was at fault. It delayed completing R’s personal education plan and failed to ensure they received suitable education between September 2017 and March 2018. The Council should pay R £800 to use for the benefit of their education and a further £250 for the uncertainty caused by its delay in handling the complaint.

The complaint

  1. Mr X complained on behalf of child R. Mr X complained the Council failed to provide R with suitable education between September 2017 and March 2018 after they arrived in the United Kingdom as an unaccompanied asylum-seeking child. Mr X said R suffered a loss of educational opportunity and restricted social development as a result.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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.

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How I considered this complaint

  1. I spoke to R’s representative, Mr X, about the complaint.
  2. I considered the complaint correspondence between the Council and Mr X.
  3. I considered the Council’s response to my enquiry letter.
  4. Mr X and the Council had the opportunity to comment on my draft decision. I considered the comments before I made my final decision.

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What I found

  1. Under section 19 of the Education Act 1996, if a child of compulsory school age (between 5 and 16 years old) cannot attend school for reasons of illness, exclusion from school or otherwise, the council must arrange to provide ‘suitable education’. This can either be at school or elsewhere.
  2. The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs they may have.
  3. The education arranged by the council must be full time, unless, in the interests of the child, the council considers part time education more suitable. This would be for reasons relating to the child’s physical or mental health.
  4. The council’s duties under section 19 apply to all children of compulsory school age.

Care of unaccompanied asylum-seeking children

  1. The Council follows statutory government guidance titled ‘care of unaccompanied migrant children and child victims of modern slavery’. The guidance says an unaccompanied asylum-seeking child is a child who is claiming asylum in their own right, who is separated from both parents, and who is not being cared for by an adult who in law or by custom has responsibility to do so.
  2. Councils have a duty to protect and support highly vulnerable children such as unaccompanied migrant children. Because of the circumstances they have faced, they often have complex needs. The support required to assess those needs begins as soon as the child is referred to the council or is found in the council’s area.

Council responsibilities

  1. Section 17 of the Children Act places a general duty on every council to safeguard and promote the welfare of children in need within its area by providing services appropriate to those children’s needs. A child who has been in the care of the council for more than 24 hours is known as a looked after child (LAC). Looked after children are also often referred to as children in care. Unaccompanied asylum-seeking children are usually accommodated by the council under section 20 of the Children Act.
  2. The Council treats asylum-seeking children as LAC. That means asylum-seeking children receive the same support and same educational provision as a LAC child does. That is irrespective of whether the child has made an asylum claim to the Home Office.
  3. The Care Planning, Placement and Case Review Regulations require the council responsible to undertake a single assessment as the first step in the care planning process. Following that assessment, the council will produce a care plan to set out how it will meet the child’s needs.
  4. The Regulations specifically requires the care plan to include a personal education plan (PEP). The PEP (pre-school age to 18) is an evolving record of what needs to happen for LAC to enable them to make at least expected progress and fulfil their potential. Social workers, Virtual School heads and Independent Reviewing Officers, school admission officers and special educational needs departments should work together to ensure that appropriate education provision for the child is arranged.

Virtual School

  1. The Virtual School is a specialist education team within social services set up to help children and young people with their education. The school does not exist as a building, and children do not attend it. It provides access to specialist services and gives advice and guidance on education, training and employment, as well as providing opportunities for out of school learning and leisure.

Independent Reviewing Officer

  1. The Independent Reviewing Officer’s (IRO) are social workers, who are also experienced social work managers whose duty is to ensure the care plans for children in care are legally compliant and, in the child’s best interest.

What happened

  1. Child R arrived in the UK as an unaccompanied asylum-seeking child in September 2017 when they were 15 years old. The Council accepted responsibility for R and placed them into semi-independent accommodation, and then into foster care.
  2. The records show the Council started R’s care planning and completed the plan at the start of November 2017. The care plan said R had settled well into his foster care placement. The plan allocated R’s social worker various actions which included completing a PEP.
  3. Records showed the IRO reviewed R in January 2018. Their view was that R remained looked after by the Council and it should make efforts to enrol them in formal education. R expressed their wishes at the review and stated their wish to attend college.
  4. Records showed R’s outreach worker contacted the Council February 2018. They expressed concern on behalf of R that they had not yet been enrolled in any education. The outreach worker asked the Council for an update on the plans for R’s education but said they had referred R to a community care solicitor, Mr X.
  5. The records show the Council completed R’s PEP in March 2018 following a letter from Mr X. Following that the Council arranged 15 hours of one to one tuition for R. R also participated in football, cookery and social outings and attended the virtual school for 6 hours of tuition each week.
  6. Mr X wrote to the Council on behalf of R in April 2014. Mr X complained the Council had failed to promote and provide education for R between September 2017 and March 2018. Mr X said the Council failed to produce a PEP and therefore had no knowledge of R’s educational needs and had no plan for his education at all. Mr X said the Council’s actions had caused R a loss of educational achievement and general wellbeing.
  7. The Council acknowledged Mr X’s complaint in May 2018 and said it would respond at stage 1 within 20 days. The Council emailed Mr X in June 2018 and asked for an extension. The Council decided Mr X’s letter was a claim for compensation and therefore said it would not deal with it through its complaint procedure. It wrote to Mr X again in July 2018 and said it had referred the matter to its solicitors to respond on its behalf.
  8. Mr X asked the Council for a response several times between July 2018 and February 2019. He did not receive one, so he complained to the Ombudsman.
  9. The Council’s solicitor’s provided Mr X with a formal response in May 2019. It accepted it did not complete R’s PEP as part of the care plan as it should have done. The Council also accepted it delayed providing R with suitable education. It apologised for those faults.
  10. Mr X remained unhappy and asked the Ombudsman to investigate the complaint.

My findings

Failure to provide R with education between September 2017 and March 2018

  1. R was 15 years old when they arrived in the UK in September 2017 as an unaccompanied asylum-seeking child, and therefore classed as a LAC. The records showed the Council carried out a single assessment and completed a care plan. The care plan contained an action for the social worker to complete a PEP for R. However, the action was not SMART (specific, measurable, attainable, realistic, timely) and had no timescale for completion. The social worker did not complete the action until March 2018. The Council said it was experiencing significant staffing issues at the time which was the reason for the delay in completing the PEP. The Council failed to carry out the PEP at the time it completed the care plan in line with statutory guidance. That was fault and caused the delays in providing R with suitable education.
  2. R was of compulsory school age and was therefore the Council was under a duty to provide R with suitable education. The Council delayed completing R’s PEP and failed to refer R’s case to the virtual school which further delayed the matter. R received some informal tutoring and training at a refugee centre however it was not formal or accredited education. There is no evidence to show the Council had any oversight or plan for R’s education or promote R’s educational achievement. It meant R did not receive suitable education between September 2017 and March 2018. The Council was therefore at fault. It caused R a loss of educational and social opportunity.

The Council’s handling of Mr X’s complaint

  1. There were significant delays in the handling of Mr X’s complaint on behalf of R. Mr X complained in April 2018 and that letter was clearly titled ‘formal complaint’. The Council said the letter referred to damages and compensation and therefore passed the matter to its insurance department to consider. Despite chasing the matter, a number of times, Mr X did not receive any kind of response until May 2019. That was fault and the significant delay caused R uncertainty and time and trouble. The Council has accepted it delayed investigating Mr X’s complaint and has offered R a payment of £250 to remedy that injustice.

Agreed action

  1. The Council agreed within one month of the final decision to:
    • apologise to R for failing to ensure they received suitable education between September 2017 and March 2018.
    • pay R £800 to recognise the loss of educational and social opportunity between September 2017 and March 2018. The payment should be used for the benefit of R’s education in agreement with R’s personal advisor.
    • pay R the £250 offered to recognise the uncertainty and time and trouble caused by its delay in handling the complaint.
    • remind staff who deal with unaccompanied asylum-seeking children of the importance of completing the PEP at the time they complete the care plan. It should also remind staff to make any actions on the plan SMART to ensure similar delays do not occur again.
    • review its complaint handling policy to ensure the Council deals with clearly titled complaints through its corporate procedure even if the complaint refers to compensation.

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Final decision

  1. I have completed my investigation. I found fault leading to injustice and the Council agreed with my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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