Royal Borough of Kensington & Chelsea (17 009 856)

Category : Education > Special educational needs

Decision : Not upheld

Decision date : 27 Sep 2018

The Ombudsman's final decision:

Summary: The Council was not at fault when it did not ensure C’s school was delivering his SEN provision. There is no evidence that Miss B made the Council aware of this. The Council was also not at fault in the education it offered C after his permanent exclusion. It made education available to C, but Miss B refused the offer. This was her choice, and did not amount to maladministration by the Council.

The complaint

  1. The complainant, whom I refer to as Miss B, complains about the level of support her grandson’s school gave him before permanently excluding him. I refer to her grandson as C.
  2. Miss B also says C did not receive the special educational needs (SEN) support he should have received, and the Council did not ensure that the school delivered this SEN support. She says that, between 8 May and 3 October 2017 (after he was excluded) he received no education. She says the Council did not provide her with support to appeal against C’s exclusion.

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What I have investigated

  1. I have investigated Miss B’s complaints about the Council not ensuring that C’s school delivered SEN provision and about C’s lack of education in 2017.
  2. The final paragraph of this decision statement explains why I have not investigated other matters.

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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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  3. 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. I spoke to Miss B about her complaint, and considered information provided by Miss B and the Council.
  2. I wrote to Miss B and the Council with my draft decision and gave them the opportunity to comment.

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What I found

  1. I will address each part of Miss B’s complaint, in turn, below.

Lack of education between May and October 2017

What happened

  1. On 8 May 2017 C’s school permanently excluded him, and informed the Council.
  2. On 9 May the Council The Council offered C a place at an alternative education centre, and invited Miss B to a meeting there, with a view to C starting there the following day. However, Miss B refused the offer of a place. She said the centre was for children who had been permanently excluded, but she was appealing C’s exclusion, so he should not go there. She also says she did not think the centre would be suitable for C’s SEN.
  3. On 11 May Miss B asked the Council to place C at a different alternative educational centre while she appealed against his exclusion.
  4. On 26 May C’s school’s governors upheld his exclusion.
  5. On 1 June the Council held a meeting, and again offered C a place at the centre which it had offered him in May. However, Miss B refused the offer again. The Council agreed to explore Miss B’s preferred placement.
  6. On 5 June the Council consulted Miss B’s preferred placement, which said it could only offer a short-term place (until July), so the Council would need to have a school in place for September. On 6 June the Council agreed to this.
  7. On 7 June Miss B’s preferred placement said it would need to complete a risk assessment before it could confirm C’s place, because it did not (at that time) have the expertise to deal with his behaviour, based on the reason for his exclusion. It asked the Council for details of what other options were being explored.
  8. On 14 June the Grenfell Tower fire happened in the Council’s area. The Council says that this had a huge impact on its resources in all departments.
  9. There is no evidence that the Council replied to Miss B’s preferred placement’s request for information of 7 June.
  10. On 8 September the Council met with the school which had excluded C in May. The school agreed to take C back onto its roll so he could start at Miss B’s preferred placement, although it expressed doubts that it could meet C’s needs when C’s short-term placement had ended. It suggested an alternative longer-term placement for C, which the Council consulted on 14 September.
  11. C started at Miss B’s preferred placement on 3 October 2017.

Law and guidance

  1. Section 19 of the Education Act 1996 says that councils must make arrangements for the provision of 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.
  2. Regulation 4 of The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 says councils must arrange education for permanently-excluded pupils from the sixth day of exclusion.

Analysis

  1. C’s school permanently excluded him on 8 May, so – according to the Regulations – the Council should have provided him with alternative education by 16 May.
  2. The Council offered C a place at alternative education the day after his exclusion, and again around three weeks later. Miss B refused both offers, and said she did not believe the placement was suitable. However, the Council still considered the placement suitable, despite Miss B’s views.
  3. 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 is under a duty to arrange alternative provision.
  4. However, if there is no suitable education available to a child, then the Education Act requires that councils arrange an alternative. In cases where a child has been excluded from school, councils should ensure that the child has education in place from the sixth day of exclusion.
  5. In C’s case, the Council offered what it considered to be suitable education the day after he was excluded. However, Miss B refused the offer and C stayed at home.
  6. I am not in a position to assess the suitability of the school. Given that C had an education, health and care (EHC) plan, any decision to name a placement on it could have been appealed to the SEND Tribunal, which makes decisions on the suitability of placements for children with SEN.
  7. However, this did not happen, because C never attended the placement on offer. This was not the Council’s fault – it had offered education and it did not prevent him from accessing it.
  8. The Council also made some efforts to secure C a place at Miss B’s preferred placement, initially without success. The placement asked the Council for more information on 7 June and the Council does not appear to have responded.
  9. I acknowledge that the Grenfell Tower fire had an enormous impact on the Council’s resources. However, if the Council had responded to Miss B’s preferred placement, it is possible that C could have started there sooner (although, if he did not have a school in place until September, this may not have been possible).
  10. Nonetheless, I do not consider that this failure to respond to the placement caused C an injustice. The Council had already offered education, and Miss B had refused it. C could have been attending the placement offered by the Council until Miss B’s preferred placement became available.
  11. As a result, I have not found fault with the Council.

The Council did not ensure C’s school delivered his SEN provision

  1. Although Miss B says she (or others on her behalf) sent emails to the Council in late 2016 and early 2017 about C’s SEN provision, she has not been able to provide these emails, and the Council has not been able to locate them.
  2. The Council, in its complaint response of 6 November 2017, said it could not hold C’s school to account in the same way as Ofsted could, because the school is an academy.
  3. While it is true that the Council’s role is different to that of Ofsted, it still holds overall responsibility for ensuring that children receive the SEN provision set out in their EHC plans. This is the same for children who attend academies as it is for those who attend maintained schools.
  4. If someone contacts a council and says a child who attends an academy is not receiving their required SEN provision, then the Council has a duty to look into this and, if necessary, instruct the academy to deliver the provision set out in the child’s EHC plan.
  5. However, in Miss B’s case I have not seen any evidence that the Council was made aware of her concerns until after C was permanently excluded, so I have not seen any reason why it should have intervened at the time.
  6. I have seen emails which C’s early help worker and social worker sent to the Council on Miss B’s behalf; however, none of these emails raised concerns that C’s school was not meeting the terms of his EHC plan. There may also have been complaint emails sent to the school, but if the Council was not made aware, then I would not expect it to have taken action.
  7. As a result, I have not found fault with the Council.

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Final decision

  1. The Council was not at fault when it did not ensure C’s school was delivering his SEN provision. There is no evidence that Miss B made the Council aware of this. The Council was also not at fault in the education it offered C after his permanent exclusion. It made education available to C, but Miss B refused the offer. This was her choice, and did not amount to maladministration by the Council.

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Parts of the complaint that I did not investigate

  1. I did not investigate Miss B’s complaints about what happened in C’s school before his exclusion, or about whether the Council supported her to appeal the exclusion. This is because the Ombudsman cannot look at what happens in schools. Although one of these complaints is about the Council providing support for an appeal, the Academy Trust of the school was responsible for the appeal process, not the Council.

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Investigator's decision on behalf of the Ombudsman

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