Summary: Mrs B says the Council wrongly excluded her son from a weekly club without considering his special educational needs and delayed considering her complaint. The Council failed to have in place a behavioural policy and risk assessment and allowed the situation to drift. The Council delayed responding to the complaint. An apology, payment to Mrs B, introduction of a behavioural policy and a process for recording a child’s special educational needs, alongside training, is satisfactory remedy.

The complaint

1. The complainant, Mrs B, complained the Council:
• wrongly excluded her son from a weekly club without considering his special educational needs; and
• delayed considering her complaint.
2. Mrs B says because of the Council’s actions her son missed out on accessing the club for nine months and she has experienced distress.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a Council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs B and the organisation 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

What should have happened

8. The outdoor education team have a risk assessment. This covers not listening to instructions/swearing/hitting. It says:
• staff should clearly brief children of what is expected and not expected in the activities at the beginning of the session;
• staff should create a structured and predictable environment that helps children understand expectations and routines;
• staff should focus on positive reinforcement and reward systems for appropriate behaviour;
• staff should clearly define a list of consequences for inappropriate behaviour while emphasising natural consequences where possible. It then lists time out from the activity as an option;
• visual schedules and cues should be used to communicate activities and transitions;
• historical data, incidents and observations relating to accidents and safety concerns will be reviewed;
• individual behaviour support plans for children with challenging behaviours will be developed. This to include triggers, de-escalation strategies and communication plans;
• staff will be aware of behavioural issues with children;
• children will be encouraged to take responsibility for their actions and find solutions together when involved in conflicts;
• reflection time will be used to consider how to make it better after the activity;
• monitoring and a review of the effectiveness of the strategy in place and adjustments to refine the approach if necessary;
• any concerns or challenges will be shared with parents and all will work together to develop solutions.
9. The risk assessment covers communication and says:
• there should be a consistent communication channel between staff, parents and professionals to share information and strategies;
• staff should have skills to remain calm and composed in challenging situations;
• staff should ensure the child has alternative ways to express themselves, such as using communication boards or use of a remote area room;
• staff will designate a safe and calming space where children can go to self regulate when they are feeling overwhelmed;
• staff will provide the child with strategies to manage frustration and anger such as deep breathing exercises or sensory tools;
• staff will consider the behaviour patterns and triggers for children with challenging behaviour;
• staff will communicate with parents/guardians about specific needs and behavioural challenges.
10. The Council says it has an unwritten behavioural process in place which is:
• any incidents are dealt with by the staff team in place on the day;
• depending on the nature of the incident the manager will be made aware;
• if agreed with the team a break or cooling off period will be applied to the young person’s attendance to promote a time for reflection. A return to session meeting will then take place with the parent/s.

What happened

11. Mrs B’s son attended activities at a youth centre which the Council set up. I will refer to that as ‘the club’. An incident took place in April 2023. There is disputed evidence about what happened on that day. Mrs B says a staff member threatened and shouted at her son and this is what prompted him to call the staff member names and swear. In contrast the staff member says Mrs B’s son refused to continue with the activity despite being asked to three times and was then abusive. The staff member disputes threatening or shouting at Mrs B’s son.
12. Members of staff from the club tried to contact Mrs B to ask her to collect her son following the incident. When Mrs B attended shortly before the end of the session staff explained what had happened and told Mrs B they would have to hold a team discussion about the consequences of her son’s actions. They suggested a break may be required. The staff members explained they would contact Mrs B later about that. While still onsite Mrs B’s son wrote a letter of apology to the staff member.
13. Following the incident a session evaluation form was completed and two staff members, including the staff member complained of, provided a statement. The second staff member was the staff member that spoke to Mrs B’s son and Mrs B after the incident but was not present at the incident itself. The manager of the club said on 12 May he would compile a summary of the evidence and contact Mrs B the following week to organise a meeting. He also provided Mrs B with details of the Council’s complaints procedure.
14. Mrs B put in a complaint on 12 May 2023. Mrs B raised concerns about the staff member not adapting his communication style to reflect the fact her son is autistic. Mrs B also raised concerns about her son being excluded for six weeks without any investigation.
15. Mrs B chased the manager of the club for the summary of evidence he had promised on 20 May.
16. In the meantime the Council responded to the complaint on 22 June. The Council explained the staff member complained about had not shouted at Mrs B’s son and had instead been raising his voice to ensure he was heard due to the wind. The Council said Mrs B son had refused to continue with the activity and after being asked to do so had sworn at the staff member and continued to refuse to follow instructions. The Council explained the manager of the club had then spoken to Mrs B and asked her to keep her son away until May half term. The Council explained that position still stood as with a reduced team there was a question of whether it could support Mrs B’s son properly, referring to the potential of specialist one-to-one support. The Council offered Mrs B the opportunity to speak to the manager of the club about the level of support required. That meeting took place in July but did not result in any changes.
17. Mrs B asked to move her complaint to stage two on 23 June.
18. Mrs B met with the manager of the club in November 2023. Mrs B says during that meeting the manager agreed for her son to return to at the end of November and to arrange a restorative justice meeting with the staff member complained about. Mrs B says none of that happened and the Council did not provide a copy of the risk assessment it promised until February 2024. By that time her son had returned to the club.
19. The Council responded to the stage two complaint on 8 March 2024.

Analysis

20. Mrs B says the Council wrongly excluded her son from a weekly club without considering his special educational needs. Mrs B says she received no contact from the club when her son was excluded and was told he could not come back until the case had been investigated.
21. I am satisfied the issues arose in this case following an incident in April 2023. While I have seen no evidence to suggest the club excluded Mrs B’s son on that date it is clear staff members told Mrs B he should not attend for a cooling off period. There is no clear information though about how long that cooling off period was supposed to last. Nor was there any clear information given to Mrs B about how long her son could not attend the club for.
22. Following my investigation it has become clear although the Council has in place ground rules for children attending the club to follow there is no written behavioural process. The Council says instead the behavioural process is unwritten and covers what I refer to in paragraph 10. I am concerned about the Council’s approach here. Without a written behavioural process there is no clear guidance for staff members to follow when behavioural issues are experienced. I would expect the Council to have in place a behavioural policy which sets out the type of behaviours considered unacceptable, the type of sanctions that might be put into place or measures to deal with such unacceptable behaviour, the circumstances in which a temporary or permanent exclusion or cooling off period is appropriate, how long that will be for and how parents can challenge that decision.
23. Had the Council had a written behavioural policy in place it is likely, in my view, the issues raised in this case could have been resolved earlier. Failure to have a formal behavioural policy in place meant the decision-making in this case was unclear and the situation was allowed to drift. That meant Mrs B’s son could not attend the club for longer than was intended. That is a significant injustice.
24. I recognise the Council has an overall risk assessment for the club, which I refer to in paragraphs 8 and 9, although it appears this was only introduced after the events complained of. It is clear some of that process is relevant for dealing with behavioural issues. However, the Council has confirmed this risk assessment is not made available to parents and it is not clear it existed in April 2023. In any event, I am not satisfied it was followed in this case. For instance, the risk assessment refers to developing individual behaviour support plans for children with challenging behaviours including de-escalation strategies and there is no evidence of that in this case. Nor is there any evidence of a clearly defined list of consequences for inappropriate behaviour. I am therefore not satisfied the risk assessment, if it was in place, was sufficiently well known by members of staff to ensure it was followed or that it qualifies as a behaviour policy.
25. Given Mrs B’s son has special educational needs I would have expected the club, acting on the Council’s behalf, to have completed a risk assessment or recorded Mrs B’s son’s specific needs when accepting him. Without that document I cannot see how staff members dealing with Mrs B’s son could have properly understood how to communicate with him and address any behavioural issues. Failure to complete that assessment at the outset is fault. I consider that also likely impacted on the lack of a proper process to deal with any issues with behaviour in this case and the delay accepting Mrs B’s son back at the club.
26. I appreciate there was some delay due to the staff member complained about being away from work. The Council says that delayed the overall process. The evidence I have seen though satisfies me the Council had a statement from the staff member complained about by at least June 2023. The Council also had a statement from another staff member and the session evaluation form. While the manager of the club did not write to Mrs B as he said he would do, I recognise the Council had received a formal complaint from Mrs B in the meantime. I therefore do not criticise the Council for sending Mrs B a formal complaint response rather than leaving it to the manager to respond to her.
27. I am concerned though that in the complaint response the Council said the manager of the club would arrange a meeting with her to discuss the level of support required for her son. Although two meetings took place there is no evidence an agreement was reached about what needed to be in place for Mrs B’s son to return to the club. That is fault and again meant Mrs B’s son missed out on being able to attend the club. I am also concerned some of the actions agreed at that meeting did not take place which meant Mrs B had to complain again. Failure to follow up with Mrs B following the complaint response to discuss the measures that may need to be taken to enable her son to return to the club is fault. Delay providing Mrs B with the information agreed at the meeting is also fault.
28. I cannot reach a safe conclusion though about whether the staff member complained about threatened Mrs B’s son in front of the other children and shouted at him as Mrs B claims. That is what Mrs B’s son reported to her. However, the staff member complained about provided a different description. He says Mrs B’s son refused to follow instructions and became abusive when asked to do so repeatedly. That staff member says although he raised his voice that was because the activity was taking place outside and it was windy. He says he therefore raised his voice to make himself heard. As the evidence as to what happened is disputed I cannot reach a safe conclusion about how the staff member treated Mrs B’s son on the day.
29. Mrs B says the manager of the club told her at a meeting in July 2023 she needed to ask for specialist one-to-one support for her son to return to the club. In contrast the Council says the manager did not say that was required but instead asked Mrs B if her son received one-to-one support at school and whether that could be applied at the club. There are no notes from the meeting from July 2023, which is also fault. In those circumstances I cannot reach a safe conclusion about what was said about the one-to-one support. I consider it likely though if the Council had completed a document detailing Mrs B’s son’s special educational needs when he joined the club those issues could have been resolved earlier.
30. Mrs B says the Council failed to follow through with a restorative justice meeting as discussed in November 2023. The Council accepts it failed to arrange that meeting but points out this was due to the staff member in question being away from work. I understand the Council’s difficulty here. However, I would have expected someone to explain why the meeting could not take place. I see no reason why the Council could not have done that without disclosing personal information. Failure to address that point with Mrs B is fault.
31. I consider Mrs B and her son have suffered an injustice because of the faults identified in this statement. Mrs B has experienced frustration, has had to go to time and trouble to pursue her complaint and is left with some uncertainty about whether matters could have been resolved earlier. Mrs B’s son has also missed out on provision he may have been able to access between May 2023 and January 2024. As remedy for that I recommended the Council apologise to Mrs B and pay her £500. The Council has agreed to my recommendation.
32. I also recommended the Council introduce a formal behavioural policy for its services or review the existing risk assessment to include that. It is not my role to specify what should be included. However, it should cover the types of behaviour considered unacceptable, the steps that can be taken, if a break is required or cooling off period is recommended the length of time that might apply for and how parents can challenge that decision. The Council should then arrange a training session for those working in its youth services. I further recommended the Council ensure when a child with special educational needs is attending a club there is a process in place for recording that child’s needs and how the provision will be adapted to meet those needs, if required. The Council should also remind officers of the need to keep notes of any meetings with parents, especially where follow-up actions are agreed. The Council has agreed to my recommendations.
33. Mrs B says the Council delayed considering her complaint. The Council accepts it delayed in this case due to an oversight. The evidence I have seen satisfies me Mrs B put in a request for her complaint to go to stage two in June 2023. There is no evidence the Council responded to that until March 2024. That delay is fault. The Council has apologised for the delay, which I welcome. I also recommended the Council send a reminder to officers about the need to ensure complaint timescales are kept to and to ensure those that have complained are kept up-to-date when delays occur. The Council has agreed to my recommendation.

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Agreed action

34. When a Council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the organisation, I have made recommendations to the Council.
35. Within one month of my decision the Council should:
• apologise to Mrs B for the uncertainty and upset she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs B £500;
• remind staff members working in its youth clubs to ensure notes are kept of meetings with parents, particularly where follow-up actions are agreed;
• remind officers dealing with complaints of the need to ensure the timescales set out in the Council’s complaints procedure are adhered to and that complainants are kept up to date when any delays occur.
36. Within two months of my decision the Council should:
• introduce a formal behavioural policy or review the existing risk assessment to include behavioural issues, how they will be managed, the options available and the means of challenging any decisions to exclude children for a period of time. When that is introduced the Council should carry out a training session for those working with young people in its youth centres; and
• introduce a process to ensure the needs of children with special educational needs who access the Council’s youth services are recorded and to ensure a record is made of any reasonable adjustments required.

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Final decision

37. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman