London Borough of Bromley (18 004 517)

Category : Education > Alternative provision

Decision : Upheld

Decision date : 14 Jan 2019

The Ombudsman's final decision:

Summary: Miss Y complains that the Council failed in its duty to provide suitable education for her son, X, after she moved into its area. The Ombudsman finds the Council is responsible for some delay in finding a placement for X, and it will remedy the injustice this caused with a payment of £375.

The complaint

  1. The complainant, whom I will call Miss Y, says the Council failed in its duty to arrange educational provision for her son, whom I will call X, after moving into its area in January 2018.

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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. 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. During my investigation I have:
    • Discussed the complaint with Miss Y and considered any information she submitted;
    • Made enquiries of the Council and considered its response;
    • Consulted the relevant law and guidance regarding the provision of suitable education. This is referenced where necessary within this statement; and
    • Issued a draft decision to the Council and Miss Y and considered any comments received before making a final decision.
  2. 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.

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What I found

  1. Miss Y moved to the Council’s area with her 13-year-old son, X, in November 2017. Before moving, X was referred to a Pupil Referral Unit (PRU) by the neighbouring council where they had previously lived. However X could not attend because the commute to the PRU was too long for him to sustain following the house move. Miss Y says that X’s previous school would not readmit him following their referral, and instead removed him from their roll.
  2. Miss Y contacted the Council on 8 January to advise that she had moved into the area. The Council provided an application form and informed Miss Y of the supplementary documents she needed to provide. The Council received Miss Y’s application on 23 January. The application form was incomplete because it did not include proof of Miss Y’s new address.
  3. The Council wrote to Miss Y on 25 January to explain that it could not process her application without proof of her new address. When Miss Y did not provide these, the Council emailed her again on 7 February to remind her of the requirement to submit the necessary documents, which Miss Y provided on 9 February.
  4. The Council sent the application to the preferred schools on 19 February and then referred X’s case to its ‘Inclusion Support Team’ shortly after.
  5. Two months passed and Miss Y did not receive any contact from the Council regarding her application. Miss Y contacted her local MP. Her MP wrote to the Council, and a meeting was arranged for 20 April.
  6. During that meeting Miss Y expressed her request for a mainstream school placement for X. The Council said it felt that X’s needs could not be met within a mainstream school, and instead suggested an offer of alternative provision with a view to an eventual transition back into mainstream school.
  7. The Council decided to refer X to its ‘In Year Fair Access Panel’ (IYFAP). This considers school applications for children who are considered hard to place. The first available panel meeting was 25 April. The panel met and reiterated the views expressed in the previous meeting. It agreed that X needed a programme of alternative provision.
  8. Around one week after the panel meeting, the Council contacted Miss Y to discuss a possible full-time placement at an OFSTED registered provider of alternative education. The Council formally offered a place the following day.
  9. Miss Y declined the offer made. She wanted X to attend a mainstream school or a PRU. The Council confirmed the local PRU did not have any spaces for X. An alternative was to transport X back to the PRU in the neighbouring council’s area. The Council urged Miss Y to reconsider its offer of alternative education.
  10. Two weeks passed. Miss Y then agreed to visit the alternative provider after the upcoming half-term break. Miss Y said her first availability was 14 June. After that visit, Miss Y agreed for X to start on 18 June.
  11. Shortly after starting at the alternative school, Miss Y complained about the provision. This is because she says X had been wrongly accused of aggression and other bad behaviour. Following an incident between X and a member of staff, the alternative school excluded X on for five days on 3 July. However, when the fixed-term exclusion ended, the school confirmed that it had permanently terminated X’s placement. The Council was aware that X was again out of school. In the meantime, the school provided virtual learning for X.
  12. Approximately two weeks later the Council contacted Miss Y to inform her that a place for X had become available at the local PRU. Miss Y agreed for the Council to make a referral for X and to arrange a pre-admission meeting with the headteacher. X started at the PRU in October 2018.
  13. Miss Y complained to the Council and the Ombudsman because she felt that the Council had failed in its duty to provide education to X after it was aware in January 2018 that X had moved into the area.

Was there fault causing injustice in the Council’s actions?

  1. Councils have a statutory duty to make other arrangements to educate a child where there are reasons for them not being in school full time. Section 19 of the Education Act 1996 says that if a child of compulsory school age (between 5 and 16 years old) cannot attend school for reasons of illness, exclusion from school or otherwise, the Council must make arrangements to provide ‘suitable education’ either at school or elsewhere.
  2. The Council’s S19 duty was engaged once it became aware that X was living in its area. To satisfy itself that X was a resident of its area, the Council rightfully requested proof of Miss Y’s home address. The application form Miss Y submitted clearly states: “when returning this form please ensure that you have provided copies of all the required documents listed below. Failure to do so will delay your child’s admission to school”. Acceptable forms of proof of address are listed. For applicants who have lived in the area for less than 12 months the Council also asks for proof of the final council tax statement and closing utility bill for the previous address.
  3. Miss Y submitted an incomplete application form. Therefore, not all the delay in arranging provision for X can be attributed to the Council. However, once the Council had received the necessary documentation in February 2018, it should have processed Miss Y’s application promptly. The Council’s published admission arrangements do not outline a timescale for the processing of applications, but does say that it allows its schools five school days to make a decision on a request for placement. It therefore seems reasonable to allow three school weeks to process an application.
  4. Allowing four weeks for Miss Y’s delay in submitting the necessary documentation, as well as the school holidays which occurred between January and May, I consider the Council took five weeks too long to process Miss Y’s request for a school placement for X. I appreciate that X was considered hard to place because of his diagnosis of ADHD and previous school history, but the Council should have referred his case to the fair-access panel sooner.
  5. The Ombudsman’s guidance on remedies suggests a payment in the range of £200 to £600 per month of provision lost due to Council fault. Taking this into account, I consider the Council should pay £375 for the five weeks of provision X missed in 2018
  6. However, I do not consider the Council was at fault after the alternative school excluded X in July 2018. The exclusion was at the end of the academic year, and the school made online learning available for X for 20 hours per week until the end of that term. During the school holidays, the Council arranged a placement for X at the local PRU for the start of the academic year.

Agreed action

  1. Within four weeks of my final decision, the Council has agreed to:
    • Apologise and pay £375 to Miss Y for the five weeks during which X did not receive the educational provision he was entitled to.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman

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