The Ombudsman's final decision:
Summary: There is a lack of thorough and consistent information available to support an investigation into this complaint, about a school placement for a child with special educational needs, and other related issues. However, the Council has now offered to re-open discussions with the complainant about this, and we agree this is the best way to resolve the complaint. For this reason, we have discontinued our investigation.
- I will refer to the complainant as Mrs J. Mrs J’s complaint concerns the education of her daughter, K, who has special educational needs (SEN).
- Mrs J complains the Council:
- has not agreed a residential school placement for K;
- did not arrange adequate alternative educational provision, for a period when K was not attending school; and
- has failed to make reasonable adjustments to allow Mrs J to access its service.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’.
- We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6))
How I considered this complaint
- I reviewed Mrs J’s correspondence with the Council, along with a selection of the Council’s internal records.
What I found
- The following is intended to provide only some basic information about this complaint. It is not intended to be a detailed chronology.
- K has SEN and is subject to an education, health and care (EHC) plan. Her condition means she sometimes displays challenging and aggressive behaviour to others.
- K was attending a special school for a period of time, but she was excluded several times because of her behaviour. Because of this, and Mrs J’s concerns the school could not keep K safe, she withdrew her from the school in early 2020.
- For a period of time K attended an alternative educational provision facility arranged by the school. However, K remained unsettled here and Mrs J eventually withdrew her from that as well.
- The Council then arranged tutoring for K instead.
- During the review of K’s EHC plan in 2021, Mrs J told the Council she considered K should have a placement at a residential school. She explained this was because she and K’s father were struggling to manage her behaviour at home, and felt she would benefit from the structure and routine provided in a residential placement.
- The Council consulted with 13 different schools in the area, but was unable to secure a residential placement for K.
- Mrs J submitted a complaint to the Council, about both the fact had not secured a residential placement for K, and because she was only receiving four hours per week of tutoring.
- The Council responded on 29 March, to say:
- it had consulted widely with local schools about a possible residential placement, but none of these had led to K being offered a place. The Council apologised it had not previously informed Mrs J of this because of a change of staff;
- it had consulted only in order to explore Mrs J’s preference for a residential placement;
- the original alternative provision placement, arranged by K’s previous school, had broken down because it could not manage her behaviour. The school had offered another provider but Mrs J had turned this down, because of concerns about the COVID-19 pandemic;
- K had been allocated 16 hours of tuition per week, but had been unable to make full use of this yet. K’s tutor had informed the Council she was working up to the full 16 hours.
- In September 2021, K began a day placement at another special school. Mrs J also made a complaint to the Ombudsman around this time. She has explained she is satisfied with the school itself, but still considers K needs a residential placement at the school instead.
- For clarity, I will address each point of Mrs J’s complaint in turn.
The Council has not arranged a residential school placement for K
- When I made enquiries with the Council, I asked it to explain whether it actually considered a residential placement was necessary or appropriate for K.
- The Council replied to say that it currently had a high turnover of staff. Several officers who had been dealing with K’s case had now left, and the Council was unable to access their email accounts. This meant it could not confirm what information had been passed between its SEN and children’s social care teams.
- However, the Council also said Mrs J had previously asked the social care team to withdraw from K’s case. It said it had explained to her this meant the team would not be able to support her request for a residential placement for K, and Mrs J confirmed she understood this.
- I find these comments difficult to place in the wider context of Mrs J’s complaint. First, it is concerning if the Council’s only copy of key records were in the email accounts of officers who have now left its employment.
- Second, it is clear the Council was aware Mrs J wanted a residential placement for K – the fact it consulted with 13 different schools about such a placement is proof of this. The Council has not explained whether Mrs J’s apparent request for social care to withdraw came before or after this consultation period; but either way, I do not understand why this means the Council cannot say whether it actually supported the idea of K having a residential placement or not.
- However, the Council has provided me with a summary of the responses it received from each of the 13 schools it consulted with; and, as the Council says, each one responded negatively. In some cases, this was because the schools do not have residential placements anyway. In others, it was because the schools did not consider they could manage K’s behaviour or meet her needs. I note, in particular, her current (day placement) school was one of the latter.
- In this respect, I am satisfied the Council did undertake a wide consultation, as it says. But the Council has also confirmed it did not inform Mrs J of this at the time.
- I am left very confused about what the Council has actually done here. There is evidence of fault on at least two points – its inability to confirm the conversations previous officers had without accessing their (now defunct) email accounts, and its failure to inform Mrs J of the outcome of its consultation in early 2021.
- But it is more difficult for me to identify and attempt to resolve any injustice this may have caused Mrs J. Critically, it is not for me to decide whether K needs or would benefit from a residential placement – this is a matter of professional judgement for the relevant Council officers. The fact that Mrs J is determined this is the best option for K does not mean the Council must agree. So, regardless of any other considerations, I cannot direct the Council to provide K with a residential placement, which is ultimately what Mrs J seeks here.
- In its response to my enquiries, the Council said it would like to explore further the idea of whether a residential placement is in K’s best interests, with consultation between Mrs J and the Council’s SEN and social care teams. It is positive the Council has offered this without prompting, and in fact an investigation by the Ombudsman would be unlikely to achieve a lot more than this.
- So, taking this together with the difficulty of making conclusive findings here, and for this reason I consider it would appropriate to end my investigation at this point, without making a formal finding, on the basis Mrs J now has a further opportunity to seek the Council’s agreement for a residential placement.
- Mrs J is also free to make a further complaint to the Ombudsman, if she is dissatisfied with the outcome of these discussions.
The Council did not arrange adequate alternative provision for K
- The Council’s records show that, after K stopped attending her original school, the school arrange two alternative providers for her. The first placement again broke down because the provider did not consider it could manage K’s behaviour, while Mrs J declined the second because K was shielding from COVID-19 at that time.
- Since then, the Council arranged a tutor for K. Mrs J complained K was receiving only four hours of tutoring per week, but the Council explained K had been allocated 16 hours, with the expectation the tutor would gradually increase the amount K was receiving as she became more settled.
- The law says the Council has a duty to arrange alternative provision within a short time of becoming aware a child cannot attend school for health reasons. There is no defined amount of tutoring time a child should receive, although it is recognised that one-to-one tutoring is more intensive (and therefore requires less time) than a normal school setting.
- It is again difficult for me to understand exactly what happened with regard to K’s alternative provision, as none of the information I have been provided by either party gives me a clear timeline covering her period out of school. But it is clear arrangements were made, by both the original school and the Council.
- I accept Mrs J’s comment that four hours of tutoring per week appears inadequate, even accepting that tutoring is more condensed than normal school teaching. However, I also accept the Council’s point here, that it had allocated a reasonable package of hours to K, but that it was thought best to gradually increase the amount of tutoring K was receiving. We would not generally call this fault for a child who had been out of school for some time for medical reasons.
- I am also conscious that K is now attending school again and has been for nearly a full academic year. While, on the evidence, I cannot say there was no fault in how her alternative provision was arranged, K’s situation has now moved on anyway. This being the case, I do not consider it would be proportionate to continue my investigation of this point.
The Council has not made reasonable adjustments for Mrs J
- Mrs J has explained she also suffers from a disability, which means she can struggle to understand complex written or verbal information. She says she has told the Council about this, but the Council has failed to consider or implement any reasonable adjustments for her.
- The law says:
“The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any organisation which carries out a public function. Organisations are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If an adjustment is reasonable, the organisation must make it.
“The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.”
- I asked the Council to provide any evidence it had of Mrs J making requests for reasonable adjustments, and to explain what consideration it had given to these requests, and what, if anything, it had done to implement them.
- In response, the Council again referred to its inability to access ex-officers’ email accounts. It said it could not, therefore, confirm or deny whether Mrs J had requested reasonable adjustments.
- I am again troubled by the suggestion that important records may be unavailable. The Council has a duty to take seriously any request for reasonable adjustments, and ensure any agreement to make such an adjustment is apparent to all staff members – for example by recording it on the Council’s main system. For such discussions to be documented only in individual officers’ personal email accounts presents obvious risks.
- I am, however, conscious this does not prove Mrs J did make any request for reasonable adjustments from the Council.
- We have ourselves agreed to make a significant adjustment to assist Mrs J in understanding our decision. This being the case, I do place significant weight on her statement that she made a similar request to the Council. On balance though, I am not persuaded I can take this so far as to make a finding of fault, in the absence of any supporting evidence whatsoever.
- But, given the Council has said it wishes to re-enter discussions with Mrs J about a residential placement for K, I consider this also provides an opportunity for the Council to clarify with her, once and for all, what adjustments she needs. The Council should ensure it notes this carefully, and also whether it then agrees to implement any adjustments.
- I will again therefore not make a formal finding here, but Mrs J will also be able to complain further to the Ombudsman about this, if she is dissatisfied with the Council’s consideration or implementation of her adjustments.
- The information provided by the Council in this case has been patchy and inconsistent.
- While this, in itself, might justify a finding of fault, it is difficult to identify any meaningful injustice this may have caused Mrs J. As I have explained, I cannot decide myself whether K should have a residential placement, and she is now properly attending school again, and so is no longer reliant on alternative provision. I also cannot say, one way or the other, whether Mrs J requested reasonable adjustments from the Council (although I am certainly not dismissing her claim to have done so).
- Ultimately, the Council’s offer to re-enter discussion with Mrs J about K’s placement appears the most pragmatic way forward here. This is likely to be the most I could recommend here anyway.
- I therefore consider it appropriate to discontinue my investigation and avoid making a formal finding. If Mrs J wishes to make a fresh complaint in the future, if she remains dissatisfied with the Council, then it is open for her to do so.
- I have discontinued my investigation.
Investigator's decision on behalf of the Ombudsman