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London Borough of Hackney (20 013 913)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 08 May 2022

The Ombudsman's final decision:

Summary: Ms B says the Council failed to follow the school admissions code by not having in place a policy to remove disadvantage for children of Crown servants. Ms B says the Council processed her son’s school application incorrectly, wrongly required her to begin the education, health and care plan process from the beginning, failed to complete a needs assessment and failed to deal with her complaint properly. The Council failed to notify the allocated school of Ms B’s son’s special educational needs and failed to deal with her complaint properly. There was some fault in consulting on the education, health and care plan but that did not cause Ms B an injustice. There is no fault in the remainder of the complaint. An apology, payment to Ms B and consideration of how to identify children of Crown servants who have special educational needs and notify schools of those needs is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Ms B, complained the Council:
    • failed to follow the school admissions code by not having in place a policy to remove disadvantage for children of Crown servants;
    • processed her youngest son’s school application through the standard admissions process without alerting the school to his significant special educational needs (SEN);
    • required them to begin the education, health and care plan (EHCP) process from the beginning rather than accepting the education, health and care plan and professionals reports she had provided;
    • failed to undertake a needs assessment for her youngest son with required reports and instead requested only an update from the occupational therapy service;
    • failed to properly investigate her complaint at stage one and delayed responding; and
    • unreasonably refused to take her complaint to stage two.
  2. Ms B says failures by the Council has led to disadvantage for her children.

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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. 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, sections 26(1) and 26A(1), as amended and section 34(3))
  2. 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 Ms B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  3. 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.

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What I found

What should have happened

  1. The school admissions code says for families of service personnel with a confirmed posting, or Crown servants returning from overseas, admission authorities must:
    • a)allocate a place in advance of the family arriving in the area (as long as one is available), provided the application is accompanied by an official letter that declares a relocation date. Admission authorities must not refuse to process an application and must not refuse a place solely because the family do not yet have an intended address, or do not yet live in the area.
    • b)use the address at which the child will live when applying their oversubscription criteria, as long as the parents provide some evidence of their intended address. Admission authorities must use a Unit or quartering address as the child’s home address when considering the application against their oversubscription criteria, where a parent requests this.
    • c)not reserve blocks of places for these children.
    • d)ensure that arrangements in their area support the Government’s commitment to removing disadvantage for service children.
  2. Arrangements must be appropriate for the area and be described in the local authority’s composite prospectus.
  3. The Department for Education has issued an explanatory note to local authorities and school admission authorities to help them understand the duties and responsibilities in relation to the admission of Crown servants (explanatory note).
  4. The explanatory note says where vacancies exist at a school the government will expect places to be allocated to the family in advance of their move even if they do not yet have a confirmed address.
  5. The explanatory note says where a school is oversubscribed the admission authority needs to be satisfied places are allocated lawfully in accordance with the oversubscription criteria. It says admissions authorities may expect to have some level of certainty about a family’s intended new address so they can make sure they allocate a place lawfully.
  6. The explanatory note says admissions authorities are expected to be flexible in what they would accept as confirmation of address, while ensuring statutory duties are met.
  7. The explanatory note says admission authorities must not refuse a child place simply because the family does not currently live in the area.
  8. The Council’s revised admissions arrangements from October 2021 say in the case of UK service personnel with a confirmed posting in the area or Crown servants returning from overseas who will reside in Hackney the Council will allocate a school place on the basis of the family’s intended future address. For UK service personnel the application must be accompanied by an official letter declaring a relocation date and unit address or quartering address in Hackney. Applications from Crown servants will be dealt with on a case-by-case basis and proof of the intended future address must be provided. In all other aspects these applications will be treated as for any other Hackney resident.
  9. Section 24 of the Children and Families Act 2014 (the Act) says a local authority in England is responsible for a child or young person if he or she is in the authority’s area and has been:
    • (a)identified by the authority as someone who has or may have special educational needs, or
    • (b)brought to the authority’s attention by any person as someone who has or may have special educational needs.
  10. Section 45 of the Act says a local authority may cease to maintain an EHCP for a child or young person only if:
    • (a)the authority is no longer responsible for the child or young person, or
    • (b)the authority determines that it is no longer necessary for the plan to be maintained.
  11. The special educational needs and disability regulations 2014 (the regulations) list the information and advice to be obtained for EHCP Needs Assessments:
    • (a)advice and information from the child’s parent or the young person;
    • (b)educational advice and information:
    • (i)from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending, or
    • (ii)where this is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs;
    • (c)medical advice and information from a health care professional identified by the responsible commissioning body;
    • (d)psychological advice and information from an educational psychologist;
    • (e)advice and information in relation to social care;
    • (f)advice and information from any other person the local authority thinks is appropriate;
    • (g)where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
    • (h)advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.
  12. In October 2021 the Department for Education issued guidance on the admission of children of Crown servants. This said if a child had an EHCP in place prior to moving overseas it will not be valid on return from overseas. If a parent feels that their child requires an EHCP the parent will need to apply for an assessment on their return and if one is required a school will be named in that plan and must admit the child. That guidance has since been withdrawn and replaced with different guidance which does not contain the same information about the EHCP process. The new guidance does not say whether a previous EHCP is valid when a child returns from overseas.
  13. The special educational needs code of practice (the code) has a section related to the children of service personnel. Crown servants are not service personnel but the code refers to the difficulties service personnel may face due to the nature of their serving parent’s employment. The code states all those with statutory responsibilities towards service children with SEN should ensure the impact of their policies, administrative processes and patterns of provision do not disadvantage such children because of their service-related lifestyle.
  14. The code states in respect of service children, schools and other education providers should:
    • ensure that mechanisms are in place to enable effective and timely receipt and dispatch of all relevant records for service children with SEN moving between schools in the UK and overseas, to enable effective planning, ideally in advance of the child’s arrival in school;
    • ensure that all reviews for service children with SEN explicitly consider those Service-related issues (for example, service-induced mobility) relevant to the outcomes of those reviews;
    • ensure that access to appropriate assessments, interventions and provision is determined solely on the nature, severity and complexity of the needs presented by service children with SEN and not related to the amount of time they have left in a particular school;
    • consider how any funds received through the service Pupils’ Premium might be used to improve their overall approaches to meeting the SEN of Service children;
  15. The code says when carrying out an assessment of a service child’s needs or making an EHCP, local authorities must seek advice from the children’s education advisory service (CEAS), acting on behalf of the Secretary of State for Defence when children move home across local authority boundaries, transfer the EHC plan from the ‘old’ local authority to the ‘new’ local authority within 15 days from when they first become aware of the move. The new local authority will have to tell the parents within 6 weeks of the transfer of the EHCP whether the authority will bring forward the annual review of the plan and whether it intends to reassess the child. From the transfer of the plan the new local authority must arrange the special educational provision set out in it, although a child may have to be placed in a school other than the one named on the plan if the distance of the move makes it impractical to send the child to the named school.

What happened

  1. Ms B has three children, one of whom has SEN. Ms B’s son had an EHCP in place when he was last living in the UK which was in 2018. Ms B and her family moved abroad in 2018 as part of a posting for her husband, who is a Crown servant. Due to Covid 19 the family were brought back to the UK in an emergency in 2020. Initially the intention was to remain in the UK for only a short period of time. Ms B owns a property in Hackney which is rented out. Due to the short notice of the return to the UK and Government restrictions on evictions during Covid 19 Ms B and her family could not move back into their own property. Ms B and her family therefore stayed in various properties outside Hackney.
  2. On the advice of the Foreign & Commonwealth Office Ms B applied for school places for her three children in June 2020. That was because there was no clear end date for when Ms B’s family could return to their foreign posting. When contacting the Council about the need for school places for her children Ms B told the Council her youngest son had SEN and had previously had an EHCP when in Hackney.
  3. The Council sent Ms B a form to complete to request an EHCP needs assessment. Ms B questioned why she needed to complete that form and asked the Council to restart her son’s previous EHCP and name her chosen school in section I.
  4. The special educational needs coordinator (SENCO) at Ms B’s chosen school told the Council Ms B and the school considered her son needed one-to-one support for education, safety and toileting. The SENCO told the Council Ms B’s son needed a high level of support from speech and language therapy, occupational therapy, physiotherapy and specialist teachers to make progress. The SENCO made clear the school could not meet Ms B’s son’s needs without level 5 funding.
  5. On 23 July the Council wrote to Ms B to advise it had begun the process of the EHCP needs assessment. The Council wrote to the relevant professionals on 27 July. The letter asked for their response within six weeks.
  6. On 27 July the Council offered Ms B a place for her son at her chosen school. The Council told the school it would provide level 3 funding pending completion of the EHCP assessment.
  7. Ms B again raised concerns about the Council beginning the EHCP assessment from scratch. Ms B explained this would put her son at a disadvantage every time he returned from overseas. The Council referred Ms B back to the special educational needs code of practice (the code). Ms B therefore asked the Council to treat her concerns as a complaint.
  8. Ms B contacted the Council again later in August as she was concerned the occupational therapy service had only been asked for a short updated assessment. Ms B said she was not concerned about that but needed clarification from the Council given it had said it had to begin the process from scratch. Ms B asked the Council to include that in her complaint.
  9. At the end of August Ms B and her family moved back to their overseas posting. Ms B and her family will now return to the UK permanently in August 2022. As Ms B had left the UK the Council discontinued the EHCP assessment.
  10. The Council responded to Ms B’s complaint on 20 November 2020. Ms B raised concerns about the Council’s response and pointed out it had not addressed all her concerns. Ms B asked the Council to move the complaint to stage two. The Council responded in December 2020 to advise it should not have dealt with Ms B’s concerns under its complaints procedure as her son was not resident in the borough at the time and the Council therefore was not responsible for supplying a service in relation to the provision or revision of his EHCP. The Council declined to take the complaint further.
  11. Following further representations from Ms B the Council wrote to her in January 2021 about the issue of reports from professionals overseas. The Council pointed out it was required to seek medical advice and information from healthcare professionals identified by the responsible commissioning body which was City and Hackney clinical commissioning group. The Council told Ms B though she could provide reports from overseas as part of her comments and the Council would consider those.
  12. In October 2021 the Council updated its admissions policy to refer to Crown servants. The Council advised Ms B to apply for school places for her children to start school in September 2022 as it had received confirmation from the Foreign & Commonwealth Office that the family would return to the UK in August 2022. The Council told Ms B it would put in place interim provision for her youngest son while it drafted the EHCP, if that was required. The Council confirmed it could agree at this stage that Ms B’s youngest son needed an EHCP rather than start the assessment process for him from scratch. The Council asked Ms B to provide any updated information for her son.

Analysis

  1. Ms B says the Council failed to follow the school admissions code by not having in place a policy to remove disadvantage for children of Crown servants. The Council accepts before October 2021 its admissions policy did not refer specifically to Crown servants, which is fault. The Council says though point d of paragraph 2.21 of the admissions code, which I refer to in paragraph 8, does not apply to the children of Crown servants and instead only applies to service families. Point d is relevant here because it relates to the need to remove disadvantage. The Council’s point is therefore that its admissions arrangements do not need to remove disadvantage for Crown servants.
  2. It is not for the Ombudsman to interpret the law or guidance. Instead, the Ombudsman will take the law and guidance on a simple reading. I set out in full paragraph 2.21 of the admissions code in paragraph 8 of this statement. Paragraph 2.21 is headed for families of service personnel with a confirmed posting or Crown servants returning from overseas and says for those children the Council must take the following actions and it then lists four actions. Given the heading of that section it suggests all four bullet points, including bullet point d, apply to Crown servants as well as children of service personnel. The wording of point d is confusing though because it specifically refers to removing disadvantage for service children and does not specify whether this includes Crown servants. I consider this section of the admissions code can be read in both ways. While I appreciate the heading refers to both service personnel and Crown servants I cannot ignore the fact that point d specifically refers to service children and does not refer to Crown servants or clarify whether they are also to be considered service children. As I consider the paragraph can be interpreted both ways and as it is not the Ombudsman’s role to provide a legal determination or speculate about what the Government’s intention was I cannot comment on whether bullet point d also applies to Crown servants.
  3. I am satisfied though that despite that confusion the Council has amended its admissions policy to include a section on how the Council will deal with the children of Crown servants. I refer to what the policy now states in paragraph 15. I recognise Ms B does not consider the current wording of the policy goes far enough in terms of removing the disadvantage to Crown servants. However, it is not for the Ombudsman to determine how the Council’s policy should be worded and there is also some uncertainty about what the admissions code intended.
  4. I appreciate Ms B has outlined circumstances in which a Crown servant would be disadvantaged, despite the wording of the Council’s policy. However, I do not consider a policy can cover every circumstance that may occur. In this case I am satisfied in addition to making clear the Council will allocate a school place on the basis of a family’s intended future address for Crown servants the policy also makes clear each case will be dealt with individually. I would expect the Council to use its discretion when considering each case to consider whether additional measures need to be in place for a specific case where it is warranted. As I am satisfied the wording of the Council’s policy allows for additional measures for Crown servants and as I am satisfied the policy addresses the issue of treating Crown servants differently, in accordance with the explanatory note issued by the Department for Education, I have no grounds to criticise the Council.
  5. In any event, in this case I do not consider Ms B has suffered an injustice from the way in which the Council dealt with her school admissions application. That is because despite the fact the Council had not updated its policy it treated Ms B’s application in the same way as it would be treated under the current policy. I say that because I note the Council accepted although Ms B was not living in Hackney it would treat her home address in Hackney as if it were the current address and allocated school places to her children on that basis. So, although the Council’s policy had not been amended at the start of the process I am satisfied that has not disadvantaged Ms B or prevented the Council identifying a suitable school placement for her son.
  6. There is, however, an issue about the information the Council provided to the school allocated for Ms B’s youngest son. Ms B’s youngest son has special educational needs. Ms B made that clear when she applied to the Council for a school place for her son in June 2020. The Council accepts it did not pass that information onto the school. That is fault. I do not though consider this caused Ms B any injustice. That is because I am satisfied the school allocated was the school previously attended by her son. Fortunately, the school recognised Ms B son’s name and knew he had special educational needs and contacted the Council about that. Ms B’s son also moved back to a foreign country with his family before the new school year started and therefore he did not suffer any injustice as a result of failure to notify the school of his special educational needs. In those circumstances I make no recommendation for a personal remedy for Ms B. However, I recommended the Council ensure it considers how to identify these cases and notify schools in future. The Council has agreed to my recommendation.
  7. Ms B says the Council wrongly required the family to begin the EHCP process from the beginning rather than accepting the previous EHCP for her son. Ms B also says the Council refused to accept the professionals reports from abroad and instead required reports from UK-based professionals.
  8. I understand Ms B’s concern about having to start the EHCP process from the beginning given her son had previously had an EHCP when he was living in Hackney. However, I am satisfied the Council ceased that plan in 2018 when Ms B and her family moved abroad as part of a posting from the Foreign & Commonwealth Office. The only EHCP Ms B’s son had was therefore more than two years old. The Government issued guidance in 2021, which I refer to in paragraph 19. That made clear once a child with an EHCP moves overseas the EHCP will no longer be valid when the child returns from overseas and parents must apply for an assessment. That is what the Council did here. I appreciate that guidance has since been withdrawn and new guidance issued. That new guidance though does not provide any clarification about whether a council should begin the EHCP process from scratch or whether it should reinstate the previous EHCP, no matter how old it is. I am therefore satisfied there is confusion in Government guidance in terms of the treatment of Crown servants returning from overseas. As the Council’s actions are in accordance with the guidance which was issued at one point and as Ms B’s son’s EHCP was more than two years old at the point of his return to the UK I do not consider, on balance, there are grounds to criticise the Council here.
  9. I recognise there are separate procedures in place for service personnel and the code includes a detailed section about how those children should be dealt with. However, the code does not mention Crown servants. The guidance in the current code therefore does not apply in Ms B’s case. I understand Ms B’s disappointment with that. However, the Council is not responsible for the content of Government guidance. As there is no specific guidance for children of Crown servants who have SEN I have no grounds to criticise it.
  10. Ms B is also concerned the Council refused to accept reports from professionals involved in her son’s care outside the UK. Again, I understand Ms B’s concern. As I said in the previous paragraph though, there is currently no guidance to suggest Crown servants with children with SEN who return to the UK should be treated differently. As I say in paragraph 18, the current regulations require the Council to seek reports from health professionals identified by the responsible commissioning body. That means a UK based health commissioning body. In those circumstances I cannot criticise the Council for advising Ms B it needed updated reports from UK-based health professionals. I am satisfied though the Council made clear when providing her comments for the EHCP Ms B could also submit any reports she had obtained outside the UK and the Council would consider those. I am therefore satisfied alongside asking for reports from professionals in the UK the Council also made clear it would consider any evidence Ms B provided.
  11. I appreciate though the letter the Council sent to Ms B was sent by post to her address in Hackney which the Council knew she was not living at. Ms B therefore did not receive the letter. Sending the letter to an address the Council knew Ms B was not living at is fault. I do not consider that has resulted in a significant injustice to Ms B though given she moved back to a foreign country with her family before the Council completed the EHCP process.
  12. Ms B says the Council failed to undertake a needs assessment for her youngest son, delayed and failed to ask for the relevant reports. Ms B also says in relation to the request for occupational therapy input the Council only asked for a limited update from the occupational therapist.
  13. The evidence I have seen satisfies me the Council began the process of consulting the relevant professionals in July 2020. Given Ms B requested an assessment in June 2020 there was a delay beginning the process here which is fault. However, I could not say that delay caused Ms B a significant injustice given she moved out of the UK before the process could be completed. In terms of beginning the process though it is clear from the evidence the Council provided that it sought information from the following:
    • the educational psychology service;
    • the consultant community paediatrician;
    • the respiratory consultant;
    • a specialist speech and language therapist;
    • speech and language therapy services;
    • a specialist teacher for Down’s syndrome;
    • the vision/orthoptic service;
    • occupational therapist;
    • physiotherapist; and
    • children and young people services at the Council (social services).
  14. Given the list of consultations issued I could not say the Council failed to begin the needs assessment. The Council did not, however, consult the school Ms B’s youngest son attended in the foreign country. That is fault. However, I am satisfied the Council wrote to Ms B to ask her to complete section A of the EHCP and asked her to provide any information she wanted the Council to take into account. The Council made clear in its letter to Ms B once it had completed the professional assessment and received the reports it would arrange a planning meeting to discuss the outcomes for the EHCP and would then decide whether to issue an EHCP. Given all of that I could not say the Council had failed to begin the assessment process. I therefore have no grounds to criticise it, other than in relation to the Council sending the letter to Ms B’s address in Hackney.
  15. In terms of the occupational therapy assessment, I do not have a copy of the communication the Council sent to the occupational therapist to establish whether it asked for an updated report or a comprehensive report. I only have a copy of the letter sent to the other professionals. That letter does not suggest only an updated report was required. In any event, Ms B made clear in her correspondence with the Council she was not concerned about an updated report being requested. Ms B's concern was in relation to the Council only asking for an updated report while also beginning the EHCP process from the start as she did not consider that necessary. While I understand the point Ms B makes, I have already made clear I cannot criticise the Council for beginning the EHCP process from the beginning given it had ceased Ms B's son's EHCP two years previously. I note though the Council, going forward, has accepted Ms B's son requires an EHCP so when he returns to the UK in 2022 he will not have to begin the process from the beginning again. I welcome that and would hope the Council would work with Ms B to complete as much work on the EHCP as it can before the family's return to the UK so her son does not miss out on education, where that is possible.
  16. Ms B has also raised concerns about ongoing issues with the Council including its failure to respond to her request for mediation in 2021. Those matters fall outside the scope of my investigation and I therefore cannot comment on them.
  17. Ms B says the Council failed to properly investigate her complaint at stage one and delayed responding. There was significant delay responding to the complaint. Ms B put in her complaint on 16 August 2020 but the Council did not respond until 20 November 2020. That is a significant delay and is fault. I am also concerned when responding to the complaint the Council did not address all the issues raised by Ms B. That again is fault.
  18. I am also concerned the Council refused to consider the complaint at stage two. The evidence I have seen satisfies me the Council did that because it noted Ms B’s son was not resident in Hackney and therefore not entitled to services in relation to EHCP. The Council took the view this meant it should not have dealt with the complaint at stage one either. I am concerned about that decision. That is, firstly, because the complaint Ms B put in covered education admissions as well as issues relating to the EHCP. I see no reason why the Council could not consider those matters through its complaints procedure at stages one and two.
  19. In addition to that, the Council accepts in its admissions policy it can use a future address in Hackney when considering school applications from Crown servants. In effect, that means the Council accepts the child is living in Hackney at the point at which the school place is allocated even if the child is not physically resident in Hackney. Given that fact I am concerned the Council does not consider it should have taken a complaint from Ms B. I recognise the current special educational needs code of practice does not provide any comment specifically on Crown servants. However, the complaint also concerned the way in which the Council had dealt with the school admissions issue. I therefore consider the Council at fault for not moving the complaint to stage two. As remedy for that I recommended the Council apologise to Ms B and pay her £100. That is to reflect her time and trouble in pursuing the complaint. The Council has agreed to my recommendations.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Ms B;
    • pay Ms B £100; and
    • consider how to identify school applications from Crown servants returning to the UK with a child with SEN to ensure those SEN are notified to schools when they are consulted about places.
  2. The Council should make its position on the treatment of Crown servants clear and act in a timely way to sort out school places for Ms B’s children from September 2022 as well as ensuring prompt completion of the EHCP process for Ms B’s youngest son.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused Ms B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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