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Nottinghamshire County Council (21 004 925)

Category : Education > Other

Decision : Not upheld

Decision date : 10 Apr 2022

The Ombudsman's final decision:

Summary: Mr C complained the Council failed to identify and provide education for his son between November 2019 and February 2020. There is no evidence of fault by the Council. The remainder of the complaint relates to the actions of an academy school which falls outside the Council’s control and the Ombudsman’s jurisdiction.

The complaint

  1. The complainant, whom I shall refer to as Mr C, complained the Council:
    • failed to take action when the school attended by his son failed to keep proper records following incidents of bullying;
    • failed to act when the school did not comply with requirements relating to special educational needs;
    • failed to provide his son with education when he was out of school between November 2019 and February 2020;
    • failed to act when the school did not safeguard his son; and
    • failed to monitor special educational needs provision in the school.
  2. Mr C says failures by the Council has caused his son and his family distress and has affected his son’s education.

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What I have investigated

  1. I have investigated that part of the complaint relating to the education provision to Mr C son between November 2019 and February 2020. The final section of this statement contains my reason(s) for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  3. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  4. 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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Mr C's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mr C and the Council 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

What should have happened

  1. Under section 436A of the Education Act 1996 Councils have a duty to make arrangements to identify children not receiving education, so far as it is possible to do so.
  2. Section 19 of the Education Act 1996 says education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. 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.
  3. Academies receive funding directly from the Government and are run by an academy trust. They have more control over how they do things than community schools.
  4. Academies are inspected by Ofsted. They have to follow the same rules on admissions, special educational needs and exclusions as other state schools and students sit the same exams.
  5. The Council has a health-related education team. The guidance for that service says it is intended to provide time limited support for pupils with anxiety related school attendance problems. It says the team can help to ensure continuity of education and support the school’s re-inclusion plan for the pupil. The support will involve education in a suitable alternative learning environment for up to a maximum of 12 weeks. During that time the pupil remains on the school roll. The guidance makes clear it is expected before making a referral to the health-related education team the school will have attempted strategies to improve the pupil’s attendance.

What happened

  1. Mr C’s son attends an academy school. In 2019 a number of incidents occurred at the school which resulted in Mr C’s son receiving several fixed term exclusions. The school initially reduced Mr C’s son’s timetable in October 2019 to address the issues. Mr C’s son stopped attending the school in November 2019 after a further exclusion. The school provided Mr C’s son with access to an online system providing lessons in key subjects before attempting slow reintegration to school in January 2020. The school sought advice from the educational psychologist in November 2019. In seeking that advice the school did not say Mr C’s son was not receiving education.
  2. The school made a referral to the Council’s health-related education team in February 2020. That referral said Mr C’s son was on a reduced timetable following some fixed term exclusions and was accessing one lesson a week at school with the remainder of the time accessing online provision. The Council sought to arrange a meeting with the family. At the family’s request this took place as part of the already arranged child protection core group meeting in March 2020. At that meeting the Council agreed to provide one-to-one support of 2.5 hours per week alongside the package already offered by the school with the intention to increase Mr C’s son’s time in school gradually. One-to-one sessions began later in March. When lockdown was introduced due to Covid 19 the family elected to engage with the online learning offered by the school to all pupils. Mr C’s son returned to school with his peers in September 2020.

Analysis

  1. The Ombudsman will not normally consider a complaint about something which happened more than 12 months ago. While the period of time Mr C’s son was not attending school is more than 12 months ago I have exercised the Ombudsman’s discretion to investigate this part of the complaint. That is because I am satisfied Mr C has spent a considerable time pursuing his complaint through the school’s complaints procedure.
  2. Mr C says the Council failed to put in place education for his son between November 2019 and February 2020. As I said earlier, Mr C’s son attends an academy. The only way the Council would know Mr C’s son was not attending school is if the school or the parents notified the Council. While there were contacts between the school and the Council from November 2019 onwards there is nothing in the documentary evidence which would have put the Council on notice Mr C’s son was not receiving any education. Even when the school completed a referral to the Council in February 2020 that referral stated Mr C’s son had attended school as recently as 3 February 2020. There is no indication in that referral to put the Council on notice Mr C’s son was not receiving education.
  3. The Council also raised queries with the school about Mr C’s son being on a part-time timetable later in February 2020. In response the school was clear it had put in place alternative provision alongside building time up in school. I am therefore satisfied the Council had no information between November and 2019 and February 2020 to suggest it needed to take any action to ensure Mr C’s son received education. I am satisfied once it became clear in March 2020 that Mr C’s son could not engage with the education package made available by the school the Council acted promptly to put in place one-to-one provision. Even then though that provision ran alongside the provision arranged by the school. As there is no evidence the Council knew of any failure to provide education to Mr C’s son between November 2019 and February 2020 I have no grounds to criticise it.

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Final decision

  1. I have completed my investigation and do not uphold the complaint.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr C’s concerns about how the Council dealt with the actions of the school in terms of safeguarding, exclusions and compliance with special educational needs guidance. That is because the school attended by Mr C’s son is an academy school and the Council has no control over those schools. The Ombudsman also does not have jurisdiction over the actions of the school.

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Investigator's decision on behalf of the Ombudsman

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