Children’s rights legal digest – September 2021

In this issue, we focus on a decision of the Local Government and Social Care Ombudsman (LGSCO) concerning multiple failings by a council in its care of a looked after child, called ‘D’ in this decision. Because of the failings, D lost a total of 17 months of suitable education, he lost the opportunity to achieve GCSEs, his relationship with his family was damaged and his mental health deteriorated significantly.

This important decision is a reminder of not only the statutory duties of local authorities, including the duty to promote and support the educational achievement of looked after and formerly looked after children, but also of the paramount importance of listening to children and young people and taking seriously their views and wishes. Additionally, the LGSCO noted that outsourcing children’s services does not absolve local authorities of their legal responsibility for the quality of such services and any failings.

Ombudsman awards maximum remedy to a care experienced young man who lost the opportunity to achieve GCSEs because of council failings


D became looked after in 2016, aged 14, under Section 20 of the Children Act 1989. Shortly after entering care, D moved into a residential setting in a different local authority. Later that year, the court granted the council an interim care order for D and, the following year, a full care order. During D’s time in the residential home, where he was also receiving on-site education, he reported ‘inappropriate’ behaviour by one of the teachers, and this was investigated by the local authority designated officer (LADO). D made two requests to move back to London while in the residential home, but he did not move into new accommodation until mid-2018.

In 2019, after a short period in a different (third) accommodation (‘trainee flat’), D moved back to live with his mother. At a subsequent statutory review, it was agreed that D should live with her. By then, his mental health had suffered severely, and he was at one point hospitalised after becoming suicidal and self-harming.

D first complained to the Council in late 2019. Following completion of the statutory complaints process at stage 2, feeling dissatisfied with the Council’s response, D asked the council to make an early referral to the LGSCO.

Failure to ensure D received suitable education

The Children Act 1989 places a duty on local authorities to safeguard and promote the welfare of looked after children; this includes promoting ‘educational achievement’ of children in care. Regulations (secondary legislation) require local authorities to draw up a Personal Education Plan (PEP) as part of the broader care planning process. A PEP should set out the arrangements for the child’s education and it should reflect the child’s individual needs, circumstances and aspirations. Statutory guidance sets out detailed provisions relating to PEPs and the role of local authorities in promoting and supporting the education of looked after children. 

After becoming looked after, D spent around 3 years living in a residential home outside his home area. Education was provided on-site, and a personal education plan (PEP) was completed for D when he first moved in. A few months later, during D’s statutory care review meeting, it was agreed that D could study GCSEs where he lived but this was in fact not possible because the residential home provided exclusively “functional skills courses”. An application to a mainstream school was refused but was not pursued by the council. During a later statutory care review meeting, the deteriorating circumstances with the on-site school were noted (which included an allegation against a teacher investigated by the LADO), but no education alternatives were explored or recorded for D. Also, despite agreement that “input from mental health services was needed”, there was no evidence of D receiving any support.

D complained to the council and following a stage 2 investigation, it was found that “the council had not taken sufficient account of D’s educational needs and had not given sufficient consideration and support to matching (his) educational needs”. The investigating officer concluded that: D had the academic ability to achieve GCSEs, but the council failed to consider suitable provision which led to D “effectively being denied the opportunity to achieve GCSEs”; disruption to D’s education was not adequately examined by the council; D’s possible additional needs were not identified or assessed; and not enough was done to consider education alternatives for D.

The council apologised, offered a remedy for loss of appropriate education and offered to pay for D to complete “one specific course of study that will enable him to gain a qualification that will improve his employability”. This course, however, would not have been accessible to D as he would have needed A levels to complete it.

During the LGSCO investigation, D shared that because of the failings by the council, he had been left with no qualifications and that he had “lost the yearning for an education”. The LGSCO found that the inability to pursue and achieve GCSEs caused significant injustice to D, with possible long-term consequences.

Failure to support D to see and spend time with his family

The Children Act 1989 places a duty on local authorities to promote and facilitate ‘contact’ between children in care and their families. Regulations (secondary legislation) require local authorities to consider, document, monitor and review the arrangements for children in care to see and spend time with their families. The law also restricts local authorities’ power to stop children seeing their families and requires local authorities to undertake specific actions, like informing the independent reviewing officer, when time together is stopped.

After D became looked after under an interim care order, it was agreed that a plan would be developed for him to regularly see and spend time with his mother and sister. Soon after, the family court made D the subject of a full care order and it was agreed that D would see his mother once a fortnight (unsupervised in-person visits). The LGSCO found no evidence of a ‘contact plan’ being drawn up. Despite subsequent discussions with D and proposals for D to see his mother, the LGSCO found no evidence of visits taking place.

Following stage 2 of the complaints process , the investigating officer found that: the council did not make adequate arrangements for D to see his family according to his needs and wishes; D had no direct contact with his mother for about eight months; this absence of direct contact was not communicated to D’s independent reviewing officer; there was no record of arrangements for supporting family time for D in his care plan; the process set out in law for when time together is stopped was not followed.

During the LGSCO’s investigation, D shared that “the long period of no contact with his family had caused severe damage to the relationship. He had had to re-start the relationships, which had been very difficult with a lot of arguments”.

Recommendations and remedies

The LGSCO’s recommended that the council:

  • Pay £10,200 to D to acknowledge the loss of 17 months of suitable education (the LGSCO guidance on remedies indicates that where no suitable education was provided, the remedy payment should be at the maximum end – £600 per month). Because the functional skills training D was involved in did not match D’s abilities or aspirations, it was discounted by the LGSCO when the remedy was being calculated.
  • Pay £500 to D to acknowledge the impact of the council’s faults on his relationship with his family.
  • Pay D £450 for the distress he experienced because of the faults and £200 for the time and trouble connected to the complaints process.

Importantly, the LGSCO confirmed in his decision that “when a council commissions another organisation to provide services on its behalf it remains (legally) responsible for those services and for the actions of the organisation providing them”. Therefore, in D’s situation, the LGSCO’s decision and recommendations were directed at the council despite the children’s services received by D being delivered by a community interest company commissioned by the council.

You can read the summary of the LGSCO’s decision and the full report here.

You can learn more about the remit of the LGSCO in the July 2020 issue and about remedies in the July 2021 issue (scroll down to the blue box).

Duty to promote the educational achievement of looked after children

The law places specific duties on local authorities relating to looked after children’s right to education, and how this should be promoted and safeguarded.

The overarching duty to promote the educational achievement of looked after children (Section 22(3A)) forms part of the broader duty under Section 22(3) to safeguard and promote the welfare of looked after children and local authorities must appoint at least one person, known as Virtual School Head, to make sure that this duty is properly fulfilled.

Additional, related duties are set out in secondary legislation, supported by statutory guidance:

The Care Planning, Placement and Case Review (England) Regulations 2010:

Regulation 5(b)(ii) states that the child’s care plan must include a record of the arrangements made by the local authority looking after the child to meet their needs relating to education and training. This is known as the ‘Personal Education Plan’ (PEP) and it’s described in more detail in Schedule 1.

Regulation 10 requires local authorities to avoid disruption in education of looked after young people in school years 10 and 11 (Key Stage 4) that can be caused when children move from one home to another. Alternative options should be explored and exhausted and planning should be documented in the child’s PEP. Statutory guidance (para 2.76) requires social workers and independent reviewing officers to “take every possible step to minimise disruption to an education placement as a result of entry into or exit from care or a change in care placement” and every effort should be made to “help all looked after children stay in the same school if they have to move to another address”.

Statutory guidance – Promoting the education of looked after children and previously looked after children – states that the choice of the education setting for each individual child “should be based on evidence that the setting can meet the educational needs of the child and help them make maximum progress” and the child’s wishes and feelings should be taken into account when education decisions are made (para 12).

It is also useful to keep in mind the corporate parenting principles which require local authorities to act in the best interest of children and young people, to promote high aspirations for them and to help them gain access to, and make the best use of, services (which includes education).

Finally, although this decision does not explicitly highlight the failings of D’s independent reviewing officer/s, the legal responsibilities of these post holders are set out in the Children Act 1989, in secondary legislation (here and here) and in statutory guidance which can be found here. Further, secondary legislation made in 2004 empowers Cafcass to bring judicial review proceedings (including under the Human Rights Act) on behalf of a looked after child following referral by an independent reviewing officer. The European Convention on Human Rights/Human Rights Act protects the rights of all children and young people (as well as adults), including the right to education (The First Protocol, Article 2) and the right to respect for private and family life (Article 8)