The Ombudsman's final decision:
Summary: Ms X complained about the way the Council dealt with her son who has Special Educational Needs and who was permanently excluded from school. The Ombudsman found the Council to be at fault because it failed to provide him with suitable education while he was out of school. It also failed to agree with Ms X how a financial payment awarded by the Ombudsman as part of a previous complaint would be spent. The Council agreed to the Ombudsman’s recommendations to remedy the injustice caused to Ms X and her son.
- The complainant, whom I shall call Ms X, complained the Council:
- Failed to ensure the provision detailed in her son’s statement of Special Educational Needs was put in place between June and November 2017.
- Failed to call an emergency review when her son was at risk of exclusion.
- Has not provided suitable full-time education since her son was permanently excluded from school.
- Inappropriately used the financial remedy recommended in a previous decision by the Ombudsman.
- Wrongly accused her of making threats against its staff.
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)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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
- During my investigation I have:
- Considered Ms X’s complaint to the Ombudsman and the information she supplied.
- Sent enquiries to the Council and considered its responses.
- Considered the Ombudsman’s response to a previous complaint submitted by Ms X and discussed the complaint with the previous Investigator.
- Taken into account relevant legislation and guidance.
- Given Ms X and the Council the opportunity to comment on my draft decision and considered their responses.
What I found
- A child with Special Educational Needs (SEN) may have a Statement of SEN or an Education, Health and Care (EHC) Plan.
- Councils are transferring pupils with Statements onto EHC Plans following the new scheme’s introduction in 2014.
- A Statement or EHC Plan sets out a child’s needs and what arrangements should be made to meet them.
- Councils are responsible for making sure all the arrangements in a Statement or EHC Plan are put in place. The Ombudsman has no powers to look at complaints about what is in the Statement or EHC Plan – this is appealable to SEND. We can look at other matters, such as where support set out in a Statement or EHC Plan has not been provided. But because we cannot look at what happens in schools, the support must be set out in the Statement or EHC Plan. If it is not, we cannot intervene.
A council’s responsibility to provide education
- The Education Act 1996 (Section 19) provides the basis for statutory guidance about provision for children who are not receiving education. This states that 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 they might have.
- Where a school permanently excludes a child, the Council must arrange suitable full-time education, to begin no later than the sixth school day following the permanent exclusion.
- Permanently excluded children will often receive ‘alternative education’ or ‘alternative provision’. This covers provision including classroom based teaching in a Pupil Referral Unit, or 1:1 tuition in the family home or a community venue.
Background / Previous complaint to the Ombudsman
- Ms X’s son (Child Y) has SEN and the Council had issued him with a Statement. In November 2016, Child Y’s school permanently excluded him from Year 9.
- Child Y started at his new school (School C) on 19 June 2017. Ms X complained to the Ombudsman about the Council’s failure to provide education for Child Y between November 2016 and June 2017. In October 2017, the Ombudsman issued a final decision about Ms X’s complaint. We found the Council to be at fault and it agreed to pay £2400 for the missed education. We recommended the Council arrange a meeting between relevant officers and Ms X to discuss how this money might best be used for educational purposes for Child Y (or other benefits reasonably related to his education or SEN).
- Part of Ms X’s complaint links to the above recommendation.
- The papers for this case are extensive and detailed. The chronology below is not meant to show everything that happened; it is an overview of the key events.
- Before Child Y started at School C, the Council agreed to fund a Higher-Level Teaching Assistant (HLTA) and 1:1 Speech and Language Therapy (SALT). The total cost of this support was c£34k. As explained above, Child Y started at School C on 19 June 2017.
- Child Y’s EHC Transfer Review meeting took place on 05 October 2017. It had previously been agreed this meeting would take place once Child Y had started at School C.
- On 17 October 2017, Ms X emailed the Council with concerns that School C was not providing an HLTA or SALT.
- On 24 November 2017, School C issued Child Y with a five-day exclusion – pending a possible permanent exclusion. The exclusion started on 27 November 2017.
- The Council contacted School C on 28 November 2017. It asked for more information about the exclusion. It scheduled an emergency review meeting for 01 December 2017. On the day of the review meeting, School C permanently excluded Child Y. The School said it would continue to provide work until 07 December 2017. After this date, the Council would be responsible for providing work.
- The Council says it referred Child Y to its home tuition service (Tutor 1). Tutor 1 made a referral to Croydon Restorative Learning School (CRLS). The Council says Ms X agreed to “look into” CRLS.
- On 02 January 2018, Ms X complained to the Council. Her complaint included the Council’s alleged failure to monitor the support School C provided to Child Y, and its failure to carry out an emergency review. She asked the Council if it had contacted her preferred schools for Child Y to attend (Schools D and E). Ms X said she did not think CRLS was suitable for Child Y. She emailed the Council on 08 January 2018 to say Child Y had not received any education since November 2017.
- School C’s Governing Body met on 04 January 2018 and confirmed the permanent exclusion. The Council had arranged for an educational professional (Representative B) to support Ms X at the meeting.
- On 11 January 2018, the Head of the Council’s SEN Team (Officer C) wrote to Representative B and said “I can confirm that there is agreement for your support for [Child Y] to be paid by Croydon Council.”
- Officer D from the Council wrote to Ms X on 12 January 2018, after a meeting to “discuss the actions of your recent LGO complaint.” Her email said Officer C and Ms X would meet to decide how best to spend the £2400 recommended by the Ombudsman.
- Ms X emailed the Council on 16 January 2018. She had arranged a meeting at School D. Representative B would attend to provide support.
- Officer C emailed Ms X on 16 January 2018. She gave advice about the evidence Ms X could provide to help secure Child Y a place at School D. She said the £34k previously agreed to support Child Y would be available for his new school and to cover Representative B’s support.
- The Council says it contacted Ms X about meeting a possible tutor for Child Y. Ms X could not make the original date and so the Council provided alternatives. A meeting took place with Tutor 1 on 02 February 2018. Tutor 1 put 10 hours of 1:1 tuition in place for Child Y.
- The Council responded to Ms X’s complaint on 15 February 2018. It accepted School C had not provided an HLTA. It had chased this up with the School in October and November 2017. It had written to the School about recovering the money. The Council said Ms X had not engaged with Tutor 1 until 29 January 2018, but Child Y was now receiving tuition.
- On 20 February 2018, Officer E from the Council emailed Ms X. The Council wanted her to confirm she was happy for it consult with School E. Officer E also said the Council did not have proof of Ms X’s address. She explained a child’s ‘home’ is defined as the address where the child normally resides as their only or principal residence. The Council reserved the right to ask for proof of a child’s address. Ms X sent the Council a copy of her Child Benefit statement the following day.
- On 07 March 2018, Officer D emailed Ms X. School D had said it could not meet Child Y’s needs and consultation with other schools was ongoing.
- Ms X emailed Officer E on 12 March 2018, asking for an update on a school place for Child Y. She also raised concerns about the tuition the Council had put in place. If an HLTA would support Child Y in school, it was wrong for him to work independently. Officer E responded and said the Council was waiting for a response from another school (School E). Officer E said she would contact Tutor 1 as “an amended timetable was issued.” This increased the tuition provided to Child Y.
- On 13 April 2018, the Council wrote to Ms X. It said it had discovered she did not live at the Croydon address she had provided. While Child Y spent the week at the address with his grandparents, Ms X lived in Lambeth. The Council asked Ms X to tell Lambeth she had moved to / was resident in their area. Lambeth Council would then have six weeks to tell her that Child Y’s EHC Plan had been transferred and when they would review the plan.
- On 25 April 2018, Ms X emailed the Council to say she would not be contacting Lambeth. She pointed out the Council had provided transport to school for Child Y from October 2015. It had collected him from his home address – which was in Croydon.
- The Council wrote to Ms X on 03 May 2018. It said it had transferred Child Y’s EHC Plan to Lambeth on 15 April 2018. The Council had been providing education via Tutor 1. Ms X had contacted Tutor 1 about the Council’s decision to transfer Child Ys EHC Plan, and it had stopped providing tuition. The Council had asked Tutor 1 to reinstate tuition until the end of half-term (01 June 2018). But Tutor 1 had said it only provided tuition for Croydon residents. The Council had therefore asked a local tuition service (Tutor 2) to provide education until half-term.
- The Council emailed Ms X on 09 May 2018 to say the Council “still hold full responsibility to ensure [Child Y] has access to education…we have made a referral…requesting that they [Tutor 2] provide full-time education until 01 June 2018…A representative from [Tutor 2] will be in contact with you”.
- On 10 May 2018, Officer D responded to concerns from Ms X about how the Council had spent the £2400 recommended by the Ombudsman. The Council said it was agreed at the meeting in January 2018 that it would be used to pay for Representative B. The Council said £2200 had been spent on Representative B. It asked how Ms X would like to spend the remaining £200.
- Ms X responded to Officer D on 11 May 2018. She said at no point during the January 2018 meeting was payment for Representative B discussed. She asked for evidence she agreed to the Council using the £2400 in this way. She pointed out the Council arranged for Representative B to support her in December 2017 – before the January 2018 meeting. Ms X raised concerns about Tutor 2’s location in Lambeth due to a safeguarding issue. The Council responded on 16 May 2018 and said it agreed to tuition taking place in Croydon – at Ms X’s grandparents address.
- Tutor 2 contacted the Council on 22 May 2018. It said it had arranged a meeting with Ms X, but because the following week was half-term, Child Y would only receive “a couple of days of tuition”.
- Officer F from the Council wrote to Ms X on 24 May 2018 – mainly about how the Council had spent the £2400. She referred to Officer D’s email sent after the meeting and said Ms X had responded the same day. She quoted Ms X’s email which said “I am happy with the discussion we held today and felt it was quite positive moving forward.” Officer D had confirmed Ms X agreed to the Council engaging Representative B’s services as “an expert education mediator, during the period of Child Y’s transition.”
- Officer F also raised concerns about telephone calls Ms X made on 09 May 2018. She said she had been informed Ms X had “threatened to blow up the Council’s offices with the SEN team insider the building.” Officer F asked Ms X to only contact the Council’s complaints team by email, and not to contact individual council officers.
- On 31 May 2018, Tutor 2 contacted the Council to ask if Child Y required tuition after half-term. Officer E contacted Officer C and D. She was concerned “they [Lambeth] have not done anything to take this case forward, effective from 01 June 2018.”
- Tutor 2 again emailed Officer E on 06 June 2018 for an update. They had not received a response from the Council. They would therefore be closing the case. Officer E responded on 07 June 2018 and said there had been “some confusion on Lambeth’s side” but she had sent Child Y’s file herself.
- Ms X complained to the Council about the allegation made against her. Officer F responded on 14 June 2018 and accepted her letter dated 24 May 2018 should have referred to “alleged threats”. But she said she had received reports from three different officers, and the Council takes the welfare of its staff seriously. The Council took the decision to limit contact from Ms X under its Persistent and Vexatious Policy.
- On 13 July 2018, Officer C emailed Ms X to say the Council was disputing a decision by Lambeth not to accept Child Y’s file. But it would continue to provide education for Child Y on a “without prejudice” basis until it had resolved the residency issue. Officer E contacted Tutor 2 to reinstate tuition on 16 July 2018 – four days before the end of the academic year.
The Council’s alleged failure to ensure the provision detailed in Child Y’s Statement was put in place between June and November 2017
- This part of Ms X’s complaint is mainly about an HLTA not supporting Child Y between June and November 2017.
- In May 2017, the Council emailed Ms X and said Child Y should receive this support. The Council paid School C c£34k in advance to fund this provision. It clearly felt it was necessary.
- But the provision referred to above is not set out in Child Y's Statement dated June 2017 - nor is it specifically mentioned in Child Y's EHC Transfer Document from October 2017.
- This means the Ombudsman cannot consider this issue. This is because the Ombudsman is limited to considering if a council has ensured the content of a child’s Statement or EHC Plan is delivered. We cannot consider what happens in schools.
- I discussed this issue with Ms X. She told me she did not receive a copy of Child Y’s Statement from June 2017.
- I asked the Council about this and it sent me a copy of a letter sent to Ms X on 29 June 2017. This was a ‘Final Amended Statement’ changing the School named to School C. The letter said if Ms X was unhappy, she had the right to appeal to SEND, or to access the Council’s Disagreement Resolution Service.
- But Section 8.126 of the SEN Code of Practice says that when a council proposes to amend the school named on a Statement, “they must write to the child’s parents informing them of that proposal, and of the parents’ right to make representations about the statement and the amendments”.
- There is no evidence the Council wrote to Ms X as required. The Council was therefore at fault. But I cannot say this caused Ms X any significant personal injustice.
- This is because I cannot say with certainty Ms X did not receive the letter sent in June 2017. This set out her appeal rights. Even if she did not receive this letter, I do not know if Ms X would have appealed the content of Child Y’s statement. If she had, I do not know what the outcome would have been. Even if the content of Child Y’s statement had been amended, either through agreement with the Council, or an appeal to SEND, there is no guarantee School C would have met his needs. The outcome could therefore have been the same.
Failure to call an emergency review when Child Y was at risk of exclusion
- Child Y’s Transfer Review Meeting took place at School C on 05 October 2017. Ms X raised concerns about him not receiving support from an HLTA; the Council pursued this with the School after the meeting. There is nothing in the Transfer Review document that suggests Child Y’s placement was at imminent risk of failing.
- School C told the Council that it had issued Child Y with a fixed-term exclusion on 24 November 2017. The exclusion started on 27 November 2017. The Council scheduled a review meeting, which was held on the same day School C confirmed Child Y’s permanent exclusion - 01 December 2017.
- Based on the evidence available, I do not see any reason the Council should have called an emergency review before Child Y’s permanent exclusion. There is no evidence of fault.
Failure to provide suitable full-time education since Child Y’s permanent exclusion
- As part of my enquiries, I asked the Council to explain how it had delivered a suitable full-time education for Child Y from 08 December 2017 – the date it became responsible for educating Child Y. I asked it to explain exactly what education was available each week, how it met Child Y’s needs, if Child Y accessed the provision, and if not, why. In response to my enquiries, the Council provided me with a timeline, copies of emails, and timetables. I have not seen any registers which would clearly show if provision was in place, and if Child Y attended. My findings are based on the information the Council and Ms X sent me.
08 December – 20 December 2017
- The Council says it made a referral to Tutor 1 on 01 December 2017, and it said alternative provision would be best for Child Y. On 11 December 2017, Tutor 1 told the Council it had approached CRLS. The Council says that it emailed Ms X about CRLS on 12 December 2017 and said ““we are hoping to secure him a placement there [at CRLS] to provide immediate education whilst we consider other options.” On 15 December 2017, Ms X said she would look into CRLS and the Council sent her details. On 24 December 2017, Ms X indicated CRLS would be “more suitable” for Child Y.
- But there is no evidence the Council had actually secured alternative provision for Child Y in the above period. The Council was “hoping” to secure a placement. I have seen no evidence that other provision, such as 1:1 tuition, was in place. The Council was therefore at fault because it failed to arrange education for Child Y. This caused him injustice because he missed the education he was entitled to.
04 January to 02 February 2018
- The Council says that on 04 January 2018, Ms X decided CRLS was not suitable for Child Y. On 12 January 2018, the Council told Ms X it was interviewing possible tutors. The Council says it invited Ms X to meet the new tutor, but she could not make the date. On 02 February 2018, a meeting took place with Tutor 1. It put in place ten hours of 1:1 tuition.
- Ms X’s decision that CRLS was not suitable will, I am sure, have caused difficulties for the Council. But this does not change its duty to provide Child Y with suitable education. There is no evidence it did this until 02 February 2018. If it was not for the fault identified in paragraphs 62 – 63, it would have been easier for the Council to ensure provision was in place. But there is no evidence Child Y received education between 04 January and 02 February 2018. This is fault and caused further injustice.
16 April to 01 June 2018
- On Friday 13 April 2018, the Council told Ms X it would be transferring Child Y’s file to Lambeth. The Council says it did not tell Ms X tuition would stop immediately. But an email from Tutor 1 to Ms X says the Council told it to stop tuition on 16 April 2018. The Council says that “between the periods of 27 April 2018 to 02 May 2018, [Officer E] asked Tutor 1 to reinstate tuition until 01 June 2018”.
- The Council says Tutor 1 said it could not provide tuition if Ms X lived outside of the borough. The Council therefore contacted Tutor 2 on 08 May 2018, and on 16 May 2018, the Council agreed to Tutor 2 providing education at Child Y’s grandparents.
- On 22 May 2018, Tutor 2 emailed the Council and said they had been in touch with Ms X, who had raised concerns about Child Y’s education after 01 June 2018 – when his file was due to transfer to Lambeth. Tutor 2 said “As half-term is next week, at best, Child Y would only receive a couple of days of tuition and then it would cease.”
- The evidence shows Tutor 1 stopped tuition on 16 April 2018. The fact the Council later asked it to “reinstate” tuition confirms it had stopped. Tutor 2’s comment that Child Y “would only receive a couple of days of tuition” suggests no education was in place for Child Y. I have seen no evidence there was education in place for Child Y between 16 April and 01 June 2018. This is fault and caused further injustice.
06 June 2018 onwards
- The Council says that on 06 June 2018, Tutor 2 emailed them to say that Lambeth had not been in touch, and that Ms X had not engaged since 01 June 2018. But the email from Tutor 2 said “we haven’t received an update from you [the Council] as to whether or not tuition is still required as we thought the student was receiving other arrangements”. There is no mention in this email of Ms X not engaging.
- On 13 July 2018, Officer C emailed Ms X to confirm the Council was disputing Lambeth’s decision not to accept Child Y’s file. The Council would therefore provide education on a ‘without prejudice’ basis. Officer E contacted Tutor 2 on 16 July 2018 to reinstate tuition. She emailed Officer C to say Tutor 2 could not put anything in place for four days (so it could not provide any tuition that term). There is a reference in this email to “[Tutor 2] informed me he [Child Y] has not been engaging from 01 June 2018 due to Ms X protesting the current issue.”
- There is a dispute between Croydon and Lambeth Council about who is responsible for Child Y’s education. This is not something on which I will make a finding. But the Council has previously accepted responsibility for Child Y’s education. Lambeth Council refusing to accept his file does not mean Croydon could simply stop providing education for him. A child should not be disadvantaged because of a dispute between councils. I therefore find the Council to be at fault for failing to provide education to Child Y between 06 June 2018 and the end of term. The Council says Ms X did not “engage” but this is not what the email it refers to says. There is no evidence education was in place for Child Y. This is fault and caused further injustice to Child Y. The Council may decide to pursue Lambeth for costs incurred in this period. But this is not a matter for the Ombudsman.
Inappropriate use of the financial remedy recommended in a previous decision by the Ombudsman
- In the Ombudsman’s previous decision, we awarded a remedy of £2400 and said the Council should arrange a meeting between its officers and Ms X to decide how this money “might best be used for educational purposes for Child Y (or other benefits reasonably related to his education or SEN).”
- There is a disagreement between Ms X and the Council about whether she agreed to the money being used to fund Representative B’s services. In response to my enquiries, the Council confirmed £2200 had been spent on “the support of…an independent Education Adviser [Representative B] appointed by Ms X.”
- The Council also said:
- Ms X sent an email on 02 January 2018 which said “The Council have failed to take any action to retrieve the money allocated to my son and this could be used to pay for services with Representative B.”
- Representative B emailed Officer C (copied to Ms X) on 08 January 2018 and said she had been approached by Ms X to support her at Child Y’s exclusion meeting. She said her fees were £550 per day.
- Officers C and D met with Ms X and Representative B on 12 January 2018 to discuss how the money would be spent. The Council says Ms X “gave preference for the payment to cover the engagement of Representative B.”
- After the meeting on 12 January 2018, Officer D emailed Ms X who said she was “happy with the outcome.”
- Representative B emailed Officer C to thank her for the meeting on 12 January 2018. Representative B said she would “give you my total costs, including the support in ensuring that Child Y settles in well when admitted into his new school.”
- The Council arranged for Representative B to support her at Child Y’s permanent exclusion meeting. This was before the meeting on 12 January 2018.
- The email from Officer D after the meeting on 12 January 2018 said “An award of £2400 has been granted for the period of missing education, this amount will not be paid direct to [Child Y] or the parent and as such will be held by the LA. A discussion to be held / finalised between the Head of SEND [Officer C] and the Parent [Ms X] to see how the money can be best used for education and or reasonable benefits for education / SEN…. A Trust account was discussed and once I receive instruction from our legal and or complaints team, I will arrange and discuss further with you.”
- Ms X says there is no mention of the £2400 being used to pay for Representative B. Ms X says if it had been agreed, why was this not set out in the email? Officer D’s email instead said there would be a meeting to discuss how the money would be spent. The fact a Trust is discussed suggests no agreement had been reached on how the money would be spent.
- The email she sent on 02 January 2018 does not show she agreed to the £2400 being spent on Representative B. She was simply suggesting the Council could use the £34k paid to School C to fund her services.
- Officer C emailed Representative B on 11 January 2018 and said “I can confirm that there is an agreement for your support to be paid by Croydon Council. I would be grateful if you could set out what support has been requested and the number of sessions that you predict will be undertaken.”
- The Council emailed Ms X on 16 January 2018, and said the money previously allocated to School C would be available to Child Y’s next school and to cover “Representative B’s support”.
- Officer C emailed Representative B on 29 January 2018 and said “As the expert education adviser in these matters, I would be grateful if you could provide the Council with advice in the form of a report...to confirm, the Council will make payment for the support provided by yourself...Please confirm sessions already delivered.”
- The Council told me there are no minutes or notes from the meeting held on 12 January 2018.
Threats against staff
- Ms X denies the allegation she threatened to “blow up the Council’s offices with the SEN team inside the building.”
- In response to my enquiries, the Council provided a note from the Complaints Team about the comments made by Ms X during telephone conversations on 09 May 2018. It also provided statements from the members of staff involved.
- I asked the Council if recordings of the telephone conversations were available. The Council said they were not.
- It is not the role of the Ombudsman to say how councils should deal with members of the public when they have concerns about their actions. But the Council received reports of behaviour from Ms X it considered unacceptable and decided to limit her contact.
- I cannot say with any certainty what was said during the conversations held on 09 May 2018. Ms X disputes the Council’s claims. But based on the evidence available, the Council’s decision was one it was entitled to take. It limited her contact in line with its published policy. There is no evidence of fault.
- Whenever the Ombudsman finds fault causing injustice, we look to remedy the injustice caused. I therefore recommended the Council:
- Writes to Ms X with a formal written apology for the failings identified.
- Pay Ms X £300 in recognition of the time and trouble she has spent pursuing this complaint.
- Make available the full £2400 previously recommended by the Ombudsman. This is based on £2200 being spent without Ms X’s agreement, and £200 being unspent. As previously recommended, the Council should meet with Ms X to discuss how this money should be spent for educational purposes for Child Y (or other benefits reasonably related to his education or SEN). The Council should properly minute this meeting with the outcomes clearly recorded and agreed by all parties.
- Pay £2700 in recognition of the time Child Y did not receive any education. In calculating this figure, I have considered the Ombudsman’s guidance on remedies. This suggests a figure of between £200 and £600 per month to recognise the impact of lost education. Our guidance suggests the higher figure should be used for a child with SEN. I consider that to be appropriate given Child Y’s needs and the Council’s previous failure to provide education. How this will be spent should be agreed between the Council and Ms X in the same way as the above remedy.
- The Council was at fault for the reasons set out above. It agreed to the Ombudsman’s recommendations to remedy the injustice caused. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman