The Ombudsman's final decision:
Summary: Mr A complains the Council has failed to provide his son, C with any form of education since they moved to the area in December 2017. He also complains about the way it handled his complaint about this matter. The Ombudsman has found the Council was at fault and did not make any educational provision for C despite its statutory duty to do so. It was also at fault for the way it conducted the In Year Fair Access Panel process and the way it handled the complaint. The Council has agreed to make a payment to C to acknowledge the loss of provision and injustice he was caused, and payments to Mr A and his partner to recognise the inconvenience and distress they were caused, as well as their time and trouble in making this complaint.
- The complainant, who I shall refer to as Mr A, complains the Council has failed to provide his son with any form of education since they moved to the area in December 2017. He also complains about the way it handled his complaint about this matter.
The Ombudsman’s role and powers
- 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)
- 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)
- 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.
How I considered this complaint
- I have:
- Read Mr A’s complaint and the documents he submitted in support of it.
- Considered the Council’s comments about the complaint and the supporting documents it provided.
- Provided both parties with an opportunity to comment on the draft decision.
What I found
- Section 19 of the Education Act 1996 provides the basis for statutory guidance about provision for children who are not receiving education. This states that local authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. The provision can be at a school or elsewhere, but must be suitable for the child’s age, ability and aptitude, including any special needs.
- Statutory guidance on alternative provision states the duty to provide such provision applies to all children of compulsory school age resident in the local authority area, “whether or not they are on the roll of a school, and whatever type of school they attend.” The guidance also states this provision should be made “as quickly as possible”.
- Further statutory guidance contained in the School Admissions Code states:
“Where a governing body does not wish to admit a child with challenging behaviour outside the normal admissions round, even though places are available, it must refer the case to the local authority for action under the Fair Access Protocol. This will normally only be appropriate where a school has a particularly high proportion of children with challenging behaviour or previously excluded children. The use of this provision will depend on local circumstances and must be described in the local authority’s Fair Access Protocol”.
- Dorset County Council’s In Year Fair Access Policy states it will consider parents’ views but these “will not override the protocol if the preferred school is not considered the most appropriate allocation”. It says a panel will review all applications referred to the protocol and consider a number of factors, including: the applicant’s preference; their readiness for mainstream school; current pupil numbers at potential schools; and the ability of schools to meet the applicant’s needs.
- The policy also states:
“In all cases the In Year Fair Access Panel (IYFAP) will carefully consider all professional advice available. Information will normally be gathered by Admissions. Where it is considered appropriate by professionals a mainstream school place will be offered. However, the panel, where professional advice fully supports and/or advises, can allocate a place at a Learning Centre or alternative appropriate educational setting. It must be noted that parents cannot apply directly for a place at a Learning Centre or alternative educational setting”.
- At the beginning of December 2017, Mr A moved to Dorset with his partner Mrs B, and son, C. He states the family decided to move because C was not coping well at the alternative provision free school he was attending, and they were keen to remove him from this disruptive environment. The date C last attended school was at the end of November 2017. At the time, he was aged 14 and in Year 10.
- Shortly after arriving in the area, Mr A and Mrs B submitted an application for a mainstream school place to the Council. They selected school X as their sole preferred option for a placement.
- In the middle of the month, school X contacted the Council and stated it had no space to accommodate C. The Council subsequently emailed school Y to enquire whether it had any space.
- The following day, the Council wrote to Mrs B and stated a place at school X could not be offered, but one at school Y was available. The letter instructed her to contact school Y if the family were content to accept the offer in order to arrange a start date. It also stated they could appeal the decision not to offer a place at school X.
- In January 2018, the family visited school Y after accepting its offer.
- In the middle of the month, the school emailed the Council following the visit. It stated it had since become aware that C had been permanently excluded from a previous school for numerous instances of poor behaviour, including assault on staff and students. It added it had just agreed to admit another pupil to Year 10 and was concerned it could not meet C’s needs. In conclusion, he asked that the case be referred to the In Year Fair Access Panel.
- Two days later, the Council wrote to Mrs B and stated the Panel would sit at the end of the month to consider the application. It also outlined the aims of its Fair Access Protocol, one of which was to “ensure that all schools admit their fair share of children with challenging behaviour”.
- Mr A and Mrs B then wrote to the Council before the Panel sat. They outlined their concerns that C was falling behind in his education because of the time taken to deal with his application, and felt the Council and schools had prejudged him because of his past behaviour. They proceeded to explain that C had been excluded from a previous mainstream school for “persistent defiance”, then attended an alternative provision free school. They stated this move had significant consequences for C as he was scared of the children who attended the school and felt he had to copy their behaviour in order to fit in, which was one reason for the deterioration in his behaviour. They added that since their move, C had started to grow up and was keen to return to mainstream school. They acknowledged C’s past behaviour but were concerned he would suffer again if he returned to a non-mainstream school, and asked that the Council give him a chance.
- At the end of the month, one of the Council’s regional In Year Fair Access Panels, Panel One considered C’s application. The minutes of the meeting state C’s previous behaviour had since come to light after he was offered a place at school Y and it was the Panel’s job to reconsider that decision. The Panel decided that the offer should remain open and the school should address any issues or concerns it had.
- Later that day, the Council emailed school Y to notify it of the Panel’s decision. It also emailed Mr A and Mrs B to make them aware of the outcome. They subsequently purchased school uniform for C after being notified of the decision.
- The following day, the couple called the school and were told the decision made by the Panel was merely a recommendation, and C’s application had to be heard by a second panel. They repeated their concerns that C was still not receiving an education and asked for clarification regarding his application.
- At the beginning of February 2018, the Council’s In Year Fair Access Panel for another region, Panel Two considered C’s application. A representative from school Y attended to present its case. Its written submission shows it felt C’s behaviour record was extreme and he was not ready for mainstream school, adding its staff were not trained in the techniques which had been used to restrain him at a previous school. It also stated it was concerned about the impact of C’s admission on other pupils, and highlighted it already faced significant challenges from its current Year 10 cohort. The Panel ultimately agreed with the school’s assertion that C was not ready for mainstream education and stated alternative provision should be sought instead.
- The Council subsequently began enquiries to check whether it could offer a place at one of its learning centres.
- In the middle of the month, the Council called Mrs B to notify her of Panel Two’s decision and highlight that none of the schools which it had consulted were prepared to offer a place to C. It advised her to return the school uniform to obtain a refund, and stated it would send her details of how she could appeal the decision.
- Two days later, Mr A submitted an online complaint to the Council. He outlined what had happened and stated the family were told on two occasions that C had a place at school Y, when this was not the case. He added they had purchased uniform worth £240 which was not longer needed, and highlighted C had been out of school for nearly three months. He asked the Council to arrange a place for C in a mainstream school and to refund the costs incurred in purchasing the uniform. He also asked for advice on where he could get help and support to get some form of education for his son. The Council subsequently acknowledged receipt of the complaint and stated Mr A would receive a response by mid-March.
- One of the Council’s advisors for alternative provision then informed the manager dealing with C’s case that there were no places in the Council’s learning centres and he would have to be added to a waiting list.
- In mid-March 2018, Mr A emailed the Council and stated he had not received its response to his complaint, despite the passing of its self-imposed deadline. He also mentioned he had been in contact with the Department for Education and it had told him the Council must provide his son with some form of education.
- Five days later, the Council responded to Mr A’s complaint and apologised for the time taken to provide a response. It stated school Y was right to refer C’s case to the In Year Fair Access Panel given the information it had received about his previous challenging behaviour. However, it concluded it should have consulted with school Y before it sent out written confirmation of C’s placement after the first panel. It apologised for this error and the inconvenience it caused. It also outlined the effort that was being made to provide C with an education, noting that those involved felt he should attend a learning centre first before being reintegrated into a mainstream school.
- Mr A and Mrs B subsequently responded to the Council and said they felt it had not in any way dealt with their complaint, pointing out that C had now missed a whole term of education. They added they found the lack of advice and support frustrating and believed any appeal they made to school Y would be futile, given its position.
- Internal deliberations then took place between Council officers in an attempt to resolve the matter. In an email to his colleagues, the officer who provided the stage one complaint response noted the Council had a duty to provide C with an education. Another email from the Virtual School Head noted the Council was not meeting its “statutory requirements”, although he highlighted this was because of funding and resource issues.
- At the end of March 2018, the matter still was not resolved. The Council provided Mr A and Mrs B with an update on the situation and stated it was working to secure C some form of education.
- At the end of April 2018, Mr A and Mrs B’s MP wrote to the Council’s Chief Executive. He said the couple had contacted him about C’s situation and stated the last update they had received from the Council was at the end of March. He urged the Chief Executive to ensure the Council resolved the matter in a timely manner, and suggested it might want to arrange private tuition for C in English and Maths as he was desperately behind in his schooling and was due to sit his GCSE exams in 2019.
- In mid-May 2018, Mrs B emailed the Council and asked it to provide C with two hours of home tuition per day so he could catch up on his English and Maths studies. She also stated she and Mr A did not want C to go to an alternative provision school again because of his past troubles.
- Further internal deliberations then took place between the Council officers involved in the case. Following these deliberations, it wrote to Mrs B and said it could only offer a learning centre place as it was Council policy only to offer home tuition following a referral by a medical consultant. It said the Council was continuing to investigate whether it could secure a mainstream school place for C.
- Mr A responded to the Council and clarified their request for home tuition had been misinterpreted and was not intended to be a long-term solution. On the contrary, he said the request was made to ensure the Council met its legal obligation to provide C with an education until a placement could be found. He asked for a meeting with the Council in an attempt to resolve the matter, and stated the situation was having a detrimental impact on him, Mrs B and their son.
- At the end of May 2018, the Council responded to the MP’s letter. It stated efforts to provide C with an education were ongoing.
- At the beginning of June 2018, Mr A complained to the Ombudsman. He states his son has been out of education for a considerable period because of the Council’s failures, and this has directly affected his chances of obtaining any qualifications, thus affecting the opportunities open to him. In addition, he says his son has not had a chance to make friends or be part of the local community since moving to the area, which he could have done if he were attending a school or receiving education. He also states the situation has been extremely stressful for the family and has exacerbated his partner’s medical conditions. To rectify the situation, he wants the Council to provide C with a school placement or some other form of educational provision without delay.
- The Council’s decision to consider C’s application at one of its In Year Fair Access Panels was correct, as the information provided by school Y indicated he met the criteria contained within the protocol. However, I have found the Council was at fault for the way it conducted this process. Panel One decided C should go to school Y, despite this school not being in its area of consideration and none of the school’s representatives being present to deliver its case. As already acknowledged by the Council, it then acted on this Panel’s decision when it should not have done and notified the family the offer to attend school Y remained open.
- When Panel Two sat it took account of the school’s case and decided the offer should be rescinded. This Panel decided that alternative provision, not mainstream education was more suitable for C, however it is unclear how it reached this decision as the minutes of the meeting lack detailed reasoning. Therefore, I am unable to check whether it considered the factors outlined in its In Year Fair Access Policy. Similarly, the minutes of the Panel One meeting also lack detail.
- These actions caused the family uncertainty as it was not clear whether the offer to admit C to school Y was valid. It also caused them inconvenience as they purchased school uniform on the understanding the place was secure, although I understand they have since been able to obtain a refund.
- Worryingly, the Council’s main fault relates to its failure to provide C with any form of education, despite having a statutory duty to do so. I understand it was facing budgetary and resource pressures at the time and do sympathise with its position. However, it had sufficient opportunity to arrange provision after C moved into the area and was aware he was not receiving an education at the beginning of December 2017, yet it failed to arrange any form of provision. On at least two separate occasions, the Council’s own officers even noted that it was not meeting its statutory duty.
- I understand the Council has since met with Mr A and Mrs B and agreed that C will attend a learning centre in September 2018, with the intention of reintegrating him into mainstream schooling at a later date. I also understand he will remain in Year 10 and restart his GCSE programme. I am glad to see progress has been made and a plan is now in place to ensure C receives an education. However, the Council’s inaction caused him to miss two terms of education at a particularly important stage of his schooling. Moreover, the failure deprived him of the opportunity to form relationships with others in an educational setting, which was important given he was new to the area. Therefore, I have made a recommendation in the section which follows to remedy the loss of this provision and the extent of the impact it had on C, which the Council has agreed to carry out.
- I have also found the Council was at fault for the way it handled Mr A’s complaint about this matter. It stated it would provide an update if its response to the complaint was delayed, but never did. In addition, it did not treat Mr A’s comments on its response as a review request, despite him remaining unsatisfied, nor, in essence, did it provide any of the advice, help or guidance which Mr A requested in his complaint. He and Mrs B then complained to their MP about the matter, but it appears his involvement did little to ensure the Council made the necessary provision. This caused Mr and Mrs B further uncertainty about their son’s schooling given the lack of a resolution, as well as inconvenience and stress as they were forced to pursue the matter. Consequently, I have made further recommendations in the section that follows in an attempt to remedy this injustice, and the Council has also agreed to carry these out.
- In total, C missed approximately six months of education, excluding holidays. Given the extent of the injustice, I believe the payment to remedy this loss of provision should sit toward the upper end of the scale outlined in the Ombudsman’s guidance. Therefore, the Council has agreed to pay C £500 for every month of provision lost, meaning a total payment of £3000. This payment should be used for educational purposes and to help him integrate into the local community (for example, by paying for membership of local clubs or participation in community activities).
- The Council has agreed to pay Mr A and Mrs B £200 for the inconvenience and distress caused by its failures, and a further £200 for their time and trouble in making this complaint.
- The Council will complete these actions within one month of the date of this decision.
- To prevent some of the faults identified from reoccurring, the Council has also agreed to draft operating guidance for its In Year Fair Access Panels which: outlines their remit; states how the panels should be conducted and specifies what factors they should consider when deliberating an application; stipulates that detailed notes be taken; and highlights what action, if any, should be taken in response to a panel decision.
- The Council will complete this action within three months of the date of this decision.
- The Council was at fault and did not make any educational provision for C despite its statutory duty to do so. It was also at fault for the way it conducted the In Year Fair Access Panel process and the way it handled the complaint. The Council has agreed to make a payment to C to acknowledge the loss of provision and the injustice he was caused, and payments to Mr A and his partner to recognise the inconvenience and distress they were caused, as well as their time and trouble in making this complaint.
Investigator's decision on behalf of the Ombudsman