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London Borough of Hackney (20 004 749)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 13 Jun 2022

The Ombudsman's final decision:

Summary: Ms D complained the Council failed to follow the correct procedures to safeguard her son when he was being abused at school. She also complained about how the Council handled a child protection investigation. Finally, she says the Council failed to understand her son’s special educational needs and it failed to provide him with alternative provision when he was out of school. We find the Council was at fault for failing to notify Ms D of her appeal rights after an annual review. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

  1. Ms D complained the Council failed the follow the correct procedures to safeguard her son when he said he was being abused at school. She says this was because of her ethnicity and her disability.
  2. Ms D complained the Council failed to review her son’s Education, Health and Care (EHC) plan for over two years.
  3. Ms D also says her son’s EHC plan did not accurately reflect his special educational needs and the Council failed to provide him with alternative provision when he was out of school.
  4. Finally, Ms D says the Council failed to deal with her complaints that her son was abused on school transport, it unreasonably put her son on a child protection plan and the child protection assessment was one sided and unfairly labelled that she had a mental health condition.
  5. Ms D says the Council’s actions have had a detrimental impact on her and her son.

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What I have investigated

  1. I have investigated Ms D’s complaints as set out in paragraphs one, two and four above. I have not investigated Ms D’s complaints as set out in paragraph three for the reasons explained at the end of this statement.

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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 question whether an organisation’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)
  3. 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)
  4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  5. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  6. 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.
  7. If we are satisfied with an organisation’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 information Ms D submitted with her complaint. I made written enquiries of the Council and considered information it sent in response.
  2. Ms D 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

Special educational needs

  1. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section F sets out the special educational provision needed by the child or young person.
  2. The Ombudsman cannot look at complaints about what is in the EHC plan but can look at other matters, such as where support set out in an EHC plan has not been provided or where there have been delays in the process.
  3. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision, the school named in their child’s plan, or the fact that no school or educational setting is named.
  4. Section 19 of the Education Act 1996 says local authorities are responsible for the provision or suitable education for children of compulsory age who, ‘by reason of illness, exclusion or otherwise’ may not for any period receive suitable education unless such arrangements are made for them. The provision must be suitable for the child’s age, ability and aptitude, including any special needs. The provision may be part-time where the child’s physical or mental health means full-time education would not be in their best interests.
  5. Statutory guidance on special educational needs provision (Special educational needs and disability code of practice: 0-25 years) confirms that annual reviews must take place within 12 months of the last review.

Child protection

  1. The Children Act 1989 says councils have a duty to safeguard and promote the welfare of children within their area who are in need.
  2. Where a council has reasonable cause to suspect a child in its area is suffering, or is likely to suffer significant harm, it has a duty under section 47 of the Children Act 1989 to hold a strategy discussion and make further enquiries. These are to decide whether it needs to take any action to safeguard or promote the child’s welfare. A section 47 enquiry may be triggered if there are allegations about neglect or the abuse of a child.
  3. If concerns of significant harm are substantiated following section 47 enquiries, an initial child protection conference (ICPC) should be arranged within 15 working days of the original strategy discussion. This is a multi-disciplinary meeting whose attendees decide what action is needed to safeguard the child. The ICPC may decide to make the child the subject of a child protection plan which details what action is necessary to reduce the risk of harm.
  4. After the ICPC, if the decision is to place a child under a child protection plan, there will be core group meetings with the professionals and family to assess progress. There should also be review child protection conferences (RCPC). These consider the progress taken to safeguard the child and whether the child protection plan should be maintained, amended, or discontinued.

Child in need

  1. Section 17 of the Children Act 1989 refers to services a council must provide to ‘children in need’. A child is need is defined in law as a child aged under 18 who requires either:
  • Council services to achieve or maintain a reasonable standard of health or development.
  • Council services to prevent significant or further harm to health and development.

The Equality Act 2010

  1. The Equality Act 2020 makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts.

The Local Authority Designated Officer

  1. The Local Authority Designated Officer (LADO) is a person responsible for the management and oversight of investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children.

What happened

  1. Ms D’s son (F) has special educational needs. The Council issued F with an EHC plan on 13 February 2018.
  2. Ms D disagreed with the content of F’s EHC plan and so appealed to the SEND Tribunal.
  3. Ms D removed F from the school (School A) he had been attending in December. She alleged a teaching assistant had abused F. She referred the matter to the police.
  4. School A referred Ms D’s allegation to the LADO at the Council.
  5. The LADO told School A to conduct an internal investigation. School A got statements from the teaching assistant and other members of staff.
  6. F’s social worker visited him at home and asked him questions about the incident.
  7. The LADO had a meeting with the police. The police decided the referral did not meet the threshold for an independent police investigation.
  8. The LADO reviewed the evidence and ended the investigation. She noted there was no corroborating evidence to support Ms D’s allegation and therefore closed the case.
  9. The Council received an anonymous referral in February 2019 with concerns about Ms D’s parenting.
  10. The Council decided to conduct an assessment. It visited Ms D and F at home.
  11. Ms D complained to the Council about its failure to provide F with alternative education when he stopped attending School A. She also complained the Council acted inappropriately when it received the anonymous referral.
  12. The Council responded to Ms D’s complaint. It said F had a place at School A and was making progress, but she chose not to send him there. It also said it was the responsibility of its children’s social care department to act on any referral it received.
  13. The Council completed its assessment in April. It said that F had complex social and emotional needs. It said F was not in education and therefore was not accessing the services he required. It said the safeguarding concerns were unsubstantiated, but there were ongoing concerns about F’s emotional wellbeing. Finally, the Council said its education officers had raised concerns about whether Ms D possibly suffered from poor mental health. The Council also said the judge during the Tribunal proceedings had also raised such concerns.
  14. The Council held a strategy meeting and recommended for the case to progress to an ICPC.
  15. Ms D, Council officers and other professionals attended the ICPC. All professionals agreed that F needed support through a child protection plan. Ms D disagreed with the concerns but agreed to work with professionals.
  16. The Tribunal issued its order in June and decided the Council needed to amend F’s EHC plan. It also noted that Ms D and the Council had agreed on a new placement for F to attend, and this was a suitable placement.
  17. F started transitioning to his new placement (School B) later that month. The Council also amended F’s EHC plan in line with the Tribunal’s order.
  18. The Council held a RCPC. Professionals agreed Ms D had made some progress, but it was appropriate for the child protection plan to continue because there were some action points that remained outstanding.
  19. Ms D raised a further complaint. She said the social worker did not make a referral to the LADO and he failed to contact the police. She said the social worker was biased and did not listen to F.
  20. The Council responded to Ms D’s complaint and said School A made a referral to the LADO which was in line with procedures. It also said the social worker visited F to seek his views on the incident. Finally, it said the LADO had a meeting the police and it was agreed the threshold was not met for further police involvement.
  21. School B completed an annual review of F’s EHC plan in October. The Council did not write to Ms D after the annual review.
  22. Ms D complained to the Council that F was being abused on the school bus. She also said he was on the bus for too long.
  23. The Council contacted the bus company and asked some questions about the journey and any interactions its staff had with F. The bus company responded and explained it had started picking up F later in the morning and dropping him off earlier in the afternoon after Ms D had raised concerns. It also said F was sitting separately as he had attacked members of staff.
  24. The Council held a RCPC in November. Professionals agreed that support for F could be addressed through a child in need plan rather than a child protection plan. Ms D had made significant progress against the outcomes of the plan and F was accessing social and educational support.
  25. F stopped attending School B in person in March 2020 due to the COVID-19 pandemic. Ms D also alleged a member of staff from School B had inappropriately restrained F.
  26. School B is in a neighbouring authority. The Council sent Ms D’s concerns to the neighbouring authority’s LADO.
  27. The Council also met with Ms D and agreed to work with her to find an alternative school. Ms D agreed to work with School B to ensure F was accessing education until an alternative school was found.
  28. Ms D raised a further detailed complaint in June about her experience with the Council’s education and social care department. The Council responded and asked for clear examples of the issues.
  29. Ms D moved out of the Council’s area later that month and so another authority became responsible for F’s EHC plan.
  30. The Council emailed Ms D in July and said it would close her complaint as it had not heard from her. She replied and said she was seeking support for her disability.
  31. Ms D’s MP emailed the Council on her behalf in October and answered some of its previous questions about the complaint.
  32. The Council was a victim of a cyber-attack and so lost access to some of its systems. It wrote to Ms D and said due to technical difficulties it could not progress with her complaint. It apologised for the inconvenience cased.
  33. The Council updated Ms D in January 2021 and assured her it had received her response to its questions.
  34. Ms D called the Council in June to discuss her complaint further. The Council responded and said majority of her issues had been addressed in previous complaints responses and it still was not clear what her complaint was about. It told her she could refer the matter to the Ombudsman if she remained dissatisfied.

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Analysis

  1. The Ombudsman cannot investigate late complaints unless there are good reasons to do so. Late complaints are when someone takes more than 12 months to complaint to us about something a Council has done. Ms D refers to issues from 2018 in her complaint, but she did not contact us until 2020. Ms D says she has communication difficulties and struggled to access advocacy support to help her progress with her complaint. This is a good reason why she did not come to us sooner, and I have therefore decided to exercise discretion and look at Ms D’s complaints from 2018.

The Council failed to follow safeguarding procedures

  1. Ms D says the Council failed to take appropriate action to safeguard F when he was attending School A. She says this was because of her ethnicity and disability.
  2. The LADO acted appropriately by asking School A to conduct an internal investigation. The social worker also visited F to seek his views. The LADO reviewed the evidence and ultimately decided there was no corroborating evidence to support the allegations. Although Ms D strongly disagrees with this, there is no evidence of fault in the way the Council reached its decision.
  3. I have also seen no evidence to support Ms D’s assertion the Council closed the case simply because of her ethnicity and disability.

The Council failed to review F’s EHC plan for over two years

  1. The Council issued F’s EHC plan in February 2018, and so it should have conducted an annual review in February 2019. The date of an annual review is not affected by an ongoing appeal to the SEND Tribunal. The Council did not conduct an annual review until October 2019, which is fault.
  2. Although I have identified fault, I do not consider this caused Ms D a significant injustice. The issues Ms D had with the EHC plan were being addressed during Tribunal proceedings. Even if the Council had completed an annual review in February 2019, it is likely the outcome would have still been the same and the issues would have been addressed through the Tribunal proceedings.
  3. The annual review took place in October 2019. The Council should have written to Ms D within four weeks of the annual review meeting and decided whether it would maintain F’s EHC plan, amend it or cease to maintain it. The Council failed to do this which is fault.
  4. The Council says it was an oversight on its part and it continued to maintain F’s EHC plan at School B. Even if the decision is to maintain the EHC plan, councils should still provide the parent with a notice of their right to appeal to the SEND Tribunal. Therefore, the Council’s failure to write to Ms D caused her a significant injustice as she lost an opportunity to appeal to the SEND Tribunal. Ms D was unhappy with F’s EHC plan and School B and so it is likely she would have appealed.
  5. It is difficult to know what the outcome would have been if Ms D had appealed, and so I cannot say with any certainty whether the Council’s faults caused F an injustice in terms of educational provision.

The Council failed to deal with complaints F was abused on school transport

  1. When Ms D raised her concerns, the Council contacted the bus company to seek its views. This was the correct action to take in the circumstances. The bus company disputed Ms D’s version of events.
  2. The Council says the matter was further investigated by the bus company. It has not been able to provide me with a copy of the bus company’s investigation. Therefore, I cannot form an independent conclusion on whether it was appropriate for the Council to take no further action after the bus company’s further investigation.

The Council unreasonably put F on a child protection plan

  1. Ms D alleges the Council discriminated against her and her family which is why it put F on a child protection plan.
  2. The Ombudsman cannot question a decision or process simply because the complainant disagrees with it. We must decide if there was fault in the way the decision was reached. In this case, I find no fault in the way the Council reached its decision to put F on a child protection plan. It visited Ms D and F, completed an assessment, and then held an ICPC with other professionals to discuss the issues. All professionals agreed that F needed support through a child protection plan.
  3. I cannot make a finding on whether the Council unlawfully discriminated against Ms D as that is a matter for the courts. However, I have not seen any evidence to suggest the Council treated Ms D unfairly or was biased against her.

The Council’s child protection assessment was one sided and unfairly labelled that Ms D had a mental health condition

  1. I have reviewed the child protection assessment and I do not consider it to be one sided. The Council identified that F lived in a well-maintained home environment, Ms D met his care needs, and she understood his behavioural needs. However, it also identified there was other areas of concern she needed to address.
  2. When it comes to Ms D’s mental health, the Council stated in the assessment its officers from its education department were concerned she was possibly suffering from poor mental health. The Council also later wrote to Ms D as part of the child in need process and said it was worried she might have an undiagnosed mental health condition she was not receiving support for.
  3. It was the professional judgement of Council officers, having worked with Ms D, that she might have been suffering a mental health condition. The Council did not definitively state Ms D had a mental health condition. The purpose of a child protection investigation is to examine family relationships, and this will sometimes cover difficult issues. I appreciate Ms D strongly disputes she has a mental health condition, and her views are noted on the file. The Council’s statement also had no overall impact on the child protection investigation.

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Agreed action

  1. To address the injustice caused by fault, by 12 July 2022 the Council has agreed to:
  • Apologise to Ms D.
  • Pay Ms D £250 to reflect her lost opportunity to appeal to the SEND Tribunal.

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Final decision

  1. There was fault by the Council, which caused Ms D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. Ms D appealed to the SEND Tribunal about the content and placement listed in F’s EHC plan. The courts have said where a loss of education coincides with an appeal about an EHC plan and there is a link between them, the period from the date on which the appeal right arises until the appeal is heard cannot be investigated by the Ombudsman. Therefore, I cannot investigate Ms D’s complaint about the Council’s failure to provide alternative provision for F during the time he was at School A.
  2. I also cannot look at Ms D’s complaint the Council did not accurately represent F’s special educational needs in his EHC plan. Ms D used her appeal rights and raised these issues during the Tribunal proceedings.

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Investigator's decision on behalf of the Ombudsman

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