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Lincolnshire County Council (17 009 546)

Category : Education > Alternative provision

Decision : Not upheld

Decision date : 25 Apr 2018

The Ombudsman's final decision:

Summary: Mrs X complained about how the Council acted after she withdrew her son S from school because he was being bullied. The Council promptly started checking if S was getting a suitable education at home, offered S a place at the same school and refused home to school transport to Mrs X’s preferred school in accordance with its policy. We have found no evidence of fault in its actions.

The complaint

  1. Mrs X removed her son, S, from his secondary school (school 1) at the end of June 2017 because he was being bullied. She applied for a place at school 2 in July 2017 but it was full. Her son was put on school 2’s waiting list and a place became available in November 2017. Mrs X complains S was out of school from 2 July 2017 until 27 November 2017 but the Council did not make any educational provision for him during this time.
  2. She says she repeatedly told the Council that although she had employed a tutor for the last 3 weeks of the 2016-2017 school year she did not intend to home educate him on a long-term basis and was seeking a school place in September 2017 at school 2. Mrs X further complains the Council has now refused to provide assistance with home-to-school transport. Her son previously had school transport when he was attending school 1.

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What I have investigated

  1. I have not investigated Mrs X’s complaint about how the school dealt with the bullying complaint for the reason set out in paragraph 44.

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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 a council’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 complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  4. 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. I spoke to Mrs X about her complaint and considered the information she provided.
  2. I have considered the Council’s replies to my enquiries.
  3. I have considered the statutory guidance on Home to school travel and transport (July 2014) and also the Council’s own policy on home to school transport (March 2017). I have also considered the statutory guidance on Children missing education (September 2016).
  4. I gave the Council and Mrs X the opportunity to comment on my draft decision and I considered their comments before making the final decision.

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What I found

  1. The Education Act 1996 says parents must ensure their children receive an education, whether at school or by home educating them. A council can take legal action against a child’s parents where a child is not attending school and the council is not satisfied he is receiving suitable education at home.
  2. What is a “suitable education” depends on the child’s age, abilities and any special educational needs he may have.
  3. The statutory guidance on children missing education says schools must inform the council if they are about to remove a child’s name from their register. The council should then consult with the child’s parents to establish if the child is receiving a suitable education. The guidance says: “prompt and early intervention are crucial … in ensuring that children are safe and receiving suitable education”.
  4. Section 19 of the Education Act 1996 says if a child of compulsory school age cannot attend school the council must make arrangements to provide suitable education either at school or elsewhere (for example, at home). The duty to provide education outside school applies where the council and the school agree that a child cannot attend school
  5. The courts have decided that the fact a child has been bullied at a school does not make that school unsuitable. The school is expected to have a bullying policy in place and to take appropriate action to deal with any bullying that occurs.

Home to school transport

  1. The statutory guidance on home to school transport sets out the council’s duty to assist with school transport for eligible children. A child is eligible for help with school transport if
    • he is of compulsory school age
    • his nearest school is more than 2 miles (if the child is below the aged of 8) or 3 miles (if the child is aged 8 or over) from the home
    • he cannot be expected to walk to school because of special education needs, a disability or mobility problems
    • there is no safe route to walk to school

In certain cases, the council may need to assist families on very low incomes.

  1. The guidance states that at the point when transport is considered “the prospect of being able to secure a place in an alternative (usually nearer) school must be a real one”.

What happened

  1. Mrs X withdrew her son (S) from school 1 at the end of June 2017 because he was being bullied and she felt he was not safe in school. She wrote to the school on 26 June 2017 to explain she intended to hire a tutor for three weeks until the end of term and wanted S to attend school 2 from September 2017. The Council says the school did not send it this letter.
  2. She wrote a further letter to the school on 30 June 2017. She said:

“[S] is safe with myself and his father until his move (hopefully to [school 2]) in Sept. I have organised a home tutor to start on Monday 3 July 2017 for 8 hours per week to continue his education at home”.

  1. The school sent this letter to the Council on 30 June 2017 with a compliments slip on which it said: “Please find attached a copy of a letter asking for [S] to be home educated. Removed from role at [school 1]”.
  2. The Council wrote to Mrs X on 10 July 2017 to say it had been informed she would be home educating her son. It said an Education Welfare Officer would contact Mrs X to arrange a meeting to discuss this and provide her with information about how the Council would assess whether the education she intended to provide was suitable. Mrs X says she spoke to the Council on 17 July 2017 and explained she was not home-educating S from September. The Council have no record of this conversation.
  3. Also on 10 July 2017 Mrs X made an in-year online application for a place for her son at school 2. The Council processed this application. It emailed her the same day to say school 2 was full. Mrs X approached school 2 direct and it put S on a waiting list.
  4. The Council wrote to Mrs X on 24 July 2017 to arrange a home visit on 7 August 2017 to discuss home education. The Council says Mrs X telephoned it to cancel the home visit because she hoped S would get a place at school 2 in September 2017.
  5. The Council wrote to Mrs X on 6 September 2017 to arrange a further home visit on 12 September 2017. It says no one was at home when it visited that day. It wrote again on 13 September 2017 to arrange a visit on 24 October 2017. Mrs X says she telephoned the Council on 8 and 18 September 2017 but the Council have no record of these conversations.
  6. On 17 September 2017 Mrs X complained to the Council. She set out the bullying issues that had caused her to remove S from school 1. She confirmed she had approached school 2 directly and S was second on its waiting list. She said she had employed a tutor for 3 weeks in July to the end of the school year and had hoped the Council would have assisted her to find a school place for S for September. She asked the Council to provide a home tutor for one or two nights per week until a school place could be found.
  7. The Council replied on 28 September 2017. It said:
    • the bullying issues were for school 1 to deal with not the Council
    • it had been told by the school she was home educating
    • since Mrs X was not now doing this, S would be registered as a “child missing education”
    • the Council’s admissions team would locate the nearest school place for S
    • as school 2 could not currently offer a place, Mrs X should look at other schools or re-engage with the home education process, and if she failed to do this the Council may need to take legal action.
  8. The Council wrote to Mrs X on 6 October 2017 to offer S a place at school 1.
  9. On 2 November 2017 Mrs X telephoned the Council. She explained about the bullying at school 1. She said she had raised the issue with the school but had not made a formal complaint. The Council says it telephoned the school and spoke to the school’s safeguarding lead, who was aware of the allegation but said it was a historical event that had been resolved.
  10. On 3 November 2017, the Council says it telephoned Mrs X to tell her school 1 was confident it could keep S safe. During the conversation Mrs X informed the Council she had sent an appeal letter to school 2. The Council says it checked this with school 2 on 13 November 2017 but the school had not received an appeal letter.
  11. Mrs X was unhappy with the Council’s response to her complaint and asked the Council to consider it at Stage 2.
  12. The Council responded to her complaint at stage 2 on 15 November 2017. It said it had acted “as per its duties”. It thought, based on her letter to school 1 that she intended to home educate. It said it did not know she was not intending to continue to home educate in September until she complained on 17 September. It then offered S a place at school 1. Further, it said there were other schools nearer to their home address than school 2. It said its policy was “to only provide free transport to a school place over 3 miles and where that place is the nearest available”.

Home to school transport

  1. School 2 offered S a place starting on 27 November 2017.
  2. Mrs X applied for home to school transport. The Council wrote to Mrs X on 21 November 2017 refusing to provide home to school transport because the school 2 was not the nearest suitable school. It said Mrs X was therefore responsible for transport arrangements and costs. It enclosed its Home to School Transport booklet setting out its policy.
  3. Mrs X wrote to the Council on 6 December 2017. She said she had no choice but to remove her child from school 1. She felt S was “absolutely entitled to school transport”. The Council replied on 6 December 2017 that S was not entitled to home to school transport because he was not attending the nearest suitable school. It said it had contacted school 1 about the bullying but if Mrs X felt there was further information it should take into consideration and could supply evidence to support this then she could make a stage 1 appeal.

My findings

  1. Mrs X’s letter dated 30 June 2017 does not state that she was only intending to home-educate S for the last 3 weeks of the summer term. Therefore, the Council was entitled to assume she was home-educating from then on.
  2. Mrs X has said she repeatedly told the Council she was not intending to home educate from September 2017. However, there are no written records to confirm this. The first indication in writing that she did not intend to home educate was the complaint on 17 September 2017.
  3. In response to the complaint, the Council set out its position and acted quickly to offer a place at school 1. In doing so, it satisfied its obligations to ensure S received an education.
  4. It was open to Mrs X to hold out for a place at her preferred school, which she did. The Council informed her in its complaint response on 28 September 2017 that if S was not in school or being home-educated he would be treated as a “child missing education”. It was Mrs X’s duty, as a parent, to ensure that S was educated whilst she waited for a place at her preferred school.
  5. The courts have decided the fact a child has been bullied does not necessarily make a school unsuitable. Schools are expected to have a bullying policy in place and to deal robustly with any bullying that occurs. The Ombudsman is unable to consider complaints about what happens within schools.
  6. The Council is not at fault for offering S a place at school 1. It had contacted the school about the bullying. The school had confirmed Mrs X had not raised a formal complaint about bullying. The school had said it was satisfied S would be safe. The Council was entitled to rely on this.
  7. The Council is not at fault for refusing school transport. This decision is in accordance with its policy to provide transport only to the designated or nearest school. It says even if S did not attend school 1 (the designated school) there are other appropriate schools nearer to where S lives than school 2.
  8. The Council said if Mrs X has further information that it should consider then she could provide this (with supporting evidence) as part of her Stage 1 appeal. Mrs X has not done so. The Council has agreed that although she is now technically out of time for an appeal, it would accept an appeal from Mrs X if this is made within 20 days of the date of our final decision. If an appeal is made I would expect the panel to consider any fresh issues Mrs X raises and any new evidence she provides in reaching its decision.

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Final decision

I have completed my investigation. I have not found fault leading to personal injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mrs X’s concerns about the way school 1 handled the bullying complaint because this is an internal matter for the school and we cannot investigate what happens in schools.

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Investigator's decision on behalf of the Ombudsman

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