Summary: The Ombudsman will not investigate Ms X’s complaint. This is because we cannot look at what happens in schools and we have no jurisdiction to consider complaints when a person has started court action. The Information Commissioner’s Office is the appropriate body to consider Ms X’s concerns about data protection. There is not enough evidence of fault in the Council’s decision that Ms X’s daughter should not be considered for a school place under the Council’s Fair Access Protocol.

The complaint

1. Ms X complains about the way her child was treated at school and how the Council has dealt with her concerns. Ms X is also unhappy with information held on file by the school, and how the Council dealt with her requests for information. Ms X also thinks the Council should offer her daughter a place at her preferred school through its Fair Access Protocol.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
5. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
6. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
7. 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)

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How I considered this complaint

8. I considered Ms X’s complaint to the Ombudsman and the information she provided. I gave Ms X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

What happened

9. Ms X complained to her child’s previous school about the way other children treated her daughter and about the conduct of staff. Ms X also raised concerns linked to the storing of personal data. Ms X contacted the Council about her concerns and made Subject Access and Freedom of Information requests. Unhappy with the Council’s responses, Ms X made a race discrimination claim to the County Court.
10. The Council did not offer Ms X’s daughter a place at her preferred secondary school for September 2019. An independent panel refused Ms X’s appeal for a place. Ms X says her daughter cannot attend various schools with vacancies. This is because there will be children attending who went to the same primary school as her daughter. Ms X says her daughter should be offered a place at the school which is now her first choice, through the Council’s Fair Access Protocol.

Assessment

Complaints about schools

11. The Ombudsman has no powers to consider complaints about what happens in schools. Ms X’s complaint about the way her daughter has been treated and the conduct of staff is outside our jurisdiction with no discretion to investigate. Also, Ms X started legal proceedings based on racial discrimination. We have no powers to investigate a complaint when a person starts court action.

Data protection

12. Ms X’s concerns about data protection and the handling of personal information are best considered by the ICO. The ICO is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation.
13. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO.
14. The ICO can decide if the school and council have properly processed personal information, and if Ms X’s requests for information have been correctly dealt with. The ICO has much wider powers than the Ombudsman to act if it finds a public body has failed in its duties as a data controller. It is the appropriate body to deal with this part of Ms X’s complaint.

Fair Access Protocol

15. The aim of Fair Access Protocols is to ensure that outside the normal admissions round, unplaced children, especially the most vulnerable, are offered a place as quickly as possible.
16. The Council has explained to Ms X that:
• Her daughter was offered a place at a school. Ms X does not want her daughter to attend this school because of children attending from the same primary school her daughter went to.
• The Council has provided details of other schools with vacancies. There are no children, who have previously caused problems for Ms X’s daughter, attending one of these schools.
• The School Admissions Code makes it clear that Fair Access Protocols should not be used to circumvent the normal admissions process.
• Ms X’s daughter is not attending school despite there being places available at alternative schools. Because Ms X’s daughter is not without a school place, it would not be appropriate to place her in a school using the Fair Access Protocol.
• If Ms X does not ensure her daughter receives a suitable education, then the Council will serve her with a School Attendance Order. Failure to comply with this would be an offence.
17. As the Council has explained, the purpose of Fair Access Protocols is to ensure children without a school place do not miss out on an education. The Council has offered Ms X’s daughter a school place, and there are other schools with vacancies which she could attend. Ms X would like the Council to use its Fair Access Protocol to secure a place at her preferred school – the Council has decided this is not appropriate – for the reasons set out above. The Council originally sent Ms X an out of date version of its Fair Access Protocol. But this does not call into question the decision itself. Based on the evidence available, there is not enough evidence of fault in the Council’s decision for the Ombudsman to become involved.

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Final decision

18. The Ombudsman will not investigate Ms X’s complaint. This is because most of the complaint is outside our jurisdiction. The Information Commissioner’s Office is the appropriate body to consider Ms X’s concerns about data protection. There is not enough evidence of fault in the Council’s decision that Ms X’s daughter should not be considered for a school place under its Fair Access Protocol.

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Investigator's decision on behalf of the Ombudsman