London Borough Of Barnet (19 011 750)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 15 Feb 2021

The Ombudsman's final decision:

Summary: Miss W complains the Council failed to make appropriate full-time education provision for her son, V. It also placed him in unsuitable education, failed to keep his Education, Health and Care Plan properly updated, failed to respond to her complaints and referred the matter to child protection even though she says the main issue was him being out of school. She says this caused her, and her family, distress and time and trouble and V was deprived of services he should have received. There is evidence of fault and the Council has agreed to apologise, make appropriate payments and to change its procedures around complaint handling.

The complaint

  1. The complainant, whom I shall call Miss W, complains the Council:
      1. Did not make appropriate full-time provision for her son, V, from when he was excluded from school;
      2. Placed him at a school where the headteacher bullied him and failed to adhere to safeguarding requirements;
      3. Did not keep his Education, Health and Care Plan (EHCP) reviews up to date;
      4. Delayed or failed to respond to communications and complaints; and,
      5. Referred V to child protection rather than dealing with his issues in relation to missed education.
  2. Miss W says this caused her distress and time and trouble and meant V did not get the amount of education he should have done over this time.
  3. I am looking at this complaint from when V began secondary education in September 2016.

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What I have investigated

  1. I have investigated matters from September 2016. Miss W says problems with the Council began when V was in nursery school. I explain why I have not looked at this later in this Statement.

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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 law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
  5. 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)
  6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
  7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  8. 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.
  9. 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 considered the information submitted by Miss W with her complaint and spoke to her on the telephone. I also made enquiries of the Council and assessed its responses. I refer to relevant education, special needs and social care law and supporting statutory guidance. We expect Councils to follow both law and statutory guidance unless they have good reasons not to.
  2. I sent Miss W and the Council a copy of my draft decision and took the comments they made into account before issuing a decision.

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What I found

Relevant law and guidance

Education

  1. The Education Act 1996 (Section 19) 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 elsewhere, but must be suitable for the child’s age, ability and aptitude, including any special needs.
  2. This was amended by the Children, Schools and Families Act 2010 (Section 3), which made it the Council’s duty to provide full-time education from 1 September 2011.
  3. The only exception to this is under subsection 3AA of the 1996 Act, where the physical or mental health of the child is such that full-time education would not be in his/her best interests
  4. The relevant statutory guidance on alternative provision (from January 2013) states that councils’ duty to make alternative provision applies to children of compulsory school age. If a child cannot attend school then alternative provision should start as quickly as possible. The education should be the same amount as a child would receive in a maintained school.

Special Educational Needs and Disabilities

  1. Children with complex needs might have an Education, Health and Care Plan (EHCP). Councils have the statutory duty to ensure special educational provision in an EHCP is made available.
  2. The responsibilities of the Council, settings and partner agencies (including health bodies) are set out in the Children and Families Act 2014 and associated Regulations and statutory guidance; most notably the SEN Code of Practice 2015 (The Code). Agencies are expected to work in an integrated way, with the child and family fully included in decisions.

Social care

  1. The Children Act 1989 details what local authorities, courts and other agencies should do to protect the welfare of children, if they have concerns, and how they should do it. 
  2. Working Together to Safeguard Children’ (2019) sets out how Councils should work with other agencies to keep children safe.

Miss W’s complaints

The Council did not make appropriate full-time provision for V from when he was excluded from school.

  1. V was excluded from his primary school. I understand he was placed on a part time timetable and Miss W says he received hardly any education. I am not considering this because Miss W could have come to us earlier.
  2. V transitioned to secondary school in September 2016 and moved to secondary school A from May 2017.
  3. There were concerns about V’s lack of attendance in a Child and Family Assessment of May 2017. Professionals were worried about what V was doing ‘when not at school’. V was still attending secondary school A, at this point, and it is reasonable to think secondary school A would have been able to put support in place given it was a specialist provision.
  4. V’s father withdrew V from secondary school A in August 2017, which was related to complaints about safeguarding (see the complaint below). At the same time, the headteacher referred V’s non-attendance to the Council.
  5. A place was still available at secondary school A even though V was not attending. Miss W had the opportunity to go to SEND up until the end of that month and ask it for another placement for V but she did not do this.
  6. The Council knew that V was not attending secondary school A from September 2017. It did not take legal action for truancy against the family. It did not identify another placement for V. There is no evidence it thought Miss W was taking responsibility for V’s education herself (such as by arranging an appointment with an Elective Home Education officer). I can see the Council hoped V would or could return to secondary school A (because a place was still open for V to do that) but he did not begin that process until January 2018. Although I accept it would take some time to arrange another specialist placement for V, and he was not excluded so there was no specific timescale the Council was working to, there is evidence V was without education from October to December 2017. This is fault.
  7. I do not have any details of V’s timetable in January 2018, when he tried to transition back to secondary school A, but I do have information about March 2018. This shows V had 1.5 hours of education for the week commencing 12 March, 1.5 hours of education for the week of 19 March (plus ‘TYS initiative’ on the Friday) and 2.5 hours of education for the week beginning 26 March (with ‘TYS initiative’ on Tuesday 27 and ‘9.40-10.40 Cooking?' – so it is not clear if that took place – on the Wednesday. If V was on such a part time timetable in March, on the balance of probabilities he would have had less education in January and February. It is not clear why such a part time timetable was appropriate for V. I have no detail about April. I have no information of any discussion showing how much education V might have been able to benefit from.
  8. Therefore, although V may have had some education, it is not clear that he had the amount of education he could have taken advantage of in January, February, March and April 2018. This also fits with the letter from the Child and Adolescent Mental Health Service (CAMHS) from January 2018, which said V ‘has been staying in some classes’ at secondary school A (but nothing about the amount of education he was actually receiving or how long this lasted).
  9. In May an amended EHCP was issued naming secondary school A. Miss W had three months from that date to ask SEND to agree to a new placement. I am not looking at the matter until September 2018 after the summer holidays that year.
  10. By this time V was not attending secondary school A at all. A CAMHS letter around that time notes V’s anxiety and acknowledged he was ‘at risk of further social isolation…(which) may increase (V’s) risk of developing a major mental illness in future’. CAMHS recommended home tutoring for V and a graded reintegration into a school. A child and family assessment from February 2019 notes there were concerns about V not being in school and that ‘the school placement at secondary school A is non-effective and, from the family’s perspective, untenable’. The Council says V started at a short stay school in September 2018 but this does not fit with CAMHS’ report, which was produced from visits with the family in October and November. It also does not fit with information I have seen from the short stay school saying V was on their roll from January 2019. On the balance of probabilities, V did not receive education in September, October and November 2018.
  11. At this point, Miss W wanted V to go to a specific specialist placement. However, there is evidence V did not meet the requirements for this as his needs were not significant enough. Nevertheless, the Council acknowledged internally at the time; ‘we need to break this cycle of isolation for (V)’ and that he ‘needs to attend an appropriate school’.
  12. Given an amended EHCP was issued at the end of November 2018, Miss W had an opportunity to challenge the placement at SEND. I am not considering the matter until the end of February 2019.
  13. The Review Child Protection Case Conference of 27 February 2019 says; ‘there needs to be a clearer timetable for consultation on alternative provision…that provides (V) with opportunities to learn and socialise with other children’ and that this ‘has yet to be identified’. I have evidence from Annual Review notes of November 2019 that V had started at a short stay school on 24 January 2019 on a seven-hour 1:1 timetable, which the Council provided me with. This had become a ten-hour 1:1 timetable by November 2019 but it is clear from the notes V wanted ‘more education’ at that point. As the Council did not feel a 1:1 setting was wholly appropriate for V (because of the lack of interaction with others), it should have considered what more it could provide him with, and noted his request for ‘more education’ in November 2019. I consider that causes Miss W considerable uncertainty as she does not know if V could have benefitted from more education or been provided with a placement allowing him more social contact between February 2019 and July 2020. At the end of July 2020, a new EHCP was issued for V so Miss W was able to go to SEND if she had concerns with the provision set out. I am not considering the matter until September 2020.
  14. On balance, from September 2020, V continued tuition from the short stay school and have day release at college with a mentor. I have had to make an on balance finding because the Council says day release happened from May 2019. The Annual Review notes of November 2019 suggest he would be starting one day per week at a college in January 2020. When I spoke with Miss W, she says this started in September 2020 and I have no reason to disbelieve her account. I understand Miss W is happy with the education V is currently receiving.
  15. The investigation shows that V was without any education for six months and, on balance, may not have been receiving as much education as he could benefit from for four months. Miss W is also concerned he may not have had sufficient education (or had a different placement found) for a further six months. This is fault. It had an impact on the wider family, which was struggling to cope.

The Council placed V at a school where the headteacher bullied him and failed to adhere to safeguarding requirements

  1. Miss W reported the headteacher to OFSTED because she was unhappy with how he was treating V.
  2. I have information, that I cannot share with Miss W, to show the matter was investigated but it was necessary for Miss W, and V’s views to be incorporated into this process. It was thought that a meeting would best be arranged by the short stay school that V attended.
  3. For whatever reason, the school said it was not possible to arrange a meeting with Miss W and V so the matter was closed. Miss V says she had to cancel the first appointment with the short stay school and could then not arrange another one. I cannot find the Council at fault for this as it took appropriate action and I cannot comment on actions taken by schools.

The Council did not keep V’s EHCP reviews up to date

  1. There was an Annual Review of V’s EHCP in July 2017 although an amended EHCP was not issued until May 2018, which is fault. It caused time and trouble for Miss W chasing this up and prevented her going to SEND.
  2. I have seen notes from an Annual Review meeting in November 2019 but with no evidence of who was present. Nevertheless, there was no EHCP or appeal rights for an EHCP between February 2019 and July 2020. This is fault, which caused significant time and trouble to Miss W.

The Council delayed or failed to respond to communications and complaints by Miss W.

  1. I have seen a Stage One Council response to Miss W dated 14 November 2018. Miss W referred the matter to us. I do not have copies of any complaints Miss W made before this or other responses given so I am looking specifically at this complaint.
  2. We wrote to the Council on 22 November advising that Miss W had come to us before the Council’s complaints procedure was completed. The letter says; ‘Please start your investigation of the complaint’. We chased this in February 2019.
  3. The Council did not respond to Miss W at Stage Two until 7 April 2019 citing Miss W’s request to it of 12 March, which was over four months after we had originally referred the complaint to it. The Council’s delay in complaints handling is fault and it caused Miss W time and trouble having to wait a long time for a response.

The Council referred V to child protection rather than dealing with his issues in relation to missed education

  1. We would not criticise Councils referring matters to the child protection process if they felt it appropriate. Councils have a duty to make enquiries where a child is considered to be suffering or likely to suffer significant harm (in accordance with the Children Act 1989).
  2. Child protection conferences are multiagency meetings, held in line with ‘Working Together to Safeguard Children’ (2019) that decide whether or not the process is appropriate and for how long. I am not finding the Council at fault. I have already found the Council at fault for missed education.

Agreed action

  1. For the Council to apologise to Miss W for the fault identified in this Statement within a month of the date of my decision.
  2. For the Council to make a payment to Miss W of £200 for time and trouble and £500 for distress. This award for distress is higher than our guidance suggests but this acknowledges her uncertainty about V’s education between February 2019 and July 2020, which is a considerable amount of time. The Council should make this payment within three months of the date of my decision.
  3. For V being without education for six months and for receiving insufficient education for four months, the Council should make a payment of £2,400 for his educational benefit. The Council is discussing with his current provision how this might best be spent, which is appropriate. It should finalise this within three months of the date of my decision.
  4. The Council was asked to tell me how it will minimise delays in finding appropriate placements for children with special educational needs in the future when they are not attending the named school in their EHCP for reasons of illness, exclusion or otherwise. The Council has told me it has increased the number of potential placements available, which it believes will minimise delays going forward. It should keep this under review. It should tell me how it will keep this under review within three months of the date of my decision.
  5. The Council was asked to tell me how it keeps the amount of education provided to children under review when they are in alternative provision settings. It says it reviews the provision once a month, which is appropriate. It should provide evidence of this policy and procedures within three months of my decision.
  6. The Council was asked to tell me how it will ensure it keeps to statutory timescales for reviewing and issuing EHCPs in the future. It says it has recruited more staff to chase Annual Reviews and issue appropriate letters in a timely way. It should provide evidence of its policy and procedures within three months of the date of my decision.
  7. The Council was asked to tell me how it will record LGSCO’s requests for investigations and how they will be progressed in a timely way in the future. It has explained it logs requests and tracks them but this does not ensure timely progression. It is asked to explain how it intends to do this within six months of the date of my decision.

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Final decision

  1. Evidence of fault leading to injustice. A remedy has been agreed to address that injustice.

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Parts of the complaint that I did not investigate

  1. I did not investigate the complaint before 2016. Miss W could have come to us earlier even if the Council did not respond to her complaints.

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Investigator's decision on behalf of the Ombudsman

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