London Borough of Waltham Forest (19 013 367)

Category : Education > Other

Decision : Upheld

Decision date : 07 Dec 2020

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s conduct of its Fair Access Protocol. The Ombudsman has completed our investigation. The Council failed to give Mr X the opportunity to contribute to the Panel. The Council should apologise, pay Mr X £150, and take action to improve its service.

The complaint

  1. Mr X complains about the Council’s conduct of its Fair Access Protocol. He says the Council denied him and his son the chance to contribute to the panels.
  2. As a result, Mr X says his son has not been able to access education since September 2019.

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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 investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
  3. 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 Mr X about the complaint.
  2. I made written enquiries of the Council and considered its response along with relevant law and guidance.
  3. I referred to the Ombudsman’s Guidance on Remedies, a copy of which is available on our website.
  4. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Fair Access Protocols

  1. Every council must have a Fair Access Protocol (FAP), agreed with most schools in its area to ensure that, outside of the normal admissions round, unplaced children are offered a place at a suitable school as quickly as possible. (School Admissions Code 2014 section 3.9)
  2. The FAP is triggered when a parent of an eligible child has not secured a place under in-year admission procedures. There is no duty to grant a place at a parent’s preferred school when placing children through the Fair Access Protocol. However, it is expected the wishes of the parents are considered.
  3. The School Admissions Code gives councils and schools the freedom to develop FAPs which best serve the needs of children in their area. However, as a minimum, FAPs must include children of compulsory school age who have difficulty securing a school place and are:
    • children from the criminal justice system or Pupil Referral Units;
    • children who need to be reintegrated into mainstream education;
    • children who have been out of education for two months or more;
    • children of Gypsies, Roma, Travellers, refugees and asylum seekers;
    • children who are homeless;
    • children with unsupportive family backgrounds for whom a place has not been sought;
    • children who are carers; and
    • children with special educational needs, disabilities or medical conditions (but without a statement or Education, Health and Care Plan). (School Admissions Code 2014, section 3.15)


  1. Mr X’s son, whom I shall call Y, is a child of secondary school age. In 2019, he attended School B.
  2. In June 2019, School B referred Y to the Fair Access Panel (the Panel). The Council says the school withdrew the case, so the panel made no decision.
  3. In September 2019, School B made a second referral to the Panel. Its referral said Y was “not within the care and control of our school.”
  4. The Panel decided Y should attend a Pupil Referral Unit (PRU). Mr X objected, he wanted Y to stay at School B.
  5. The Council says moves to PRUs need parental consent and so the Panel’s decision was withdrawn.
  6. Y has not been in education since September 2019.

The Council’s Fair Access Panel

  1. The Council provided me a copy of the Terms of Reference for its Fair Access Panel in place in 2019.
  2. The Council’s Terms of Reference for its FAP says that in addition to the mandatory groups listed in paragraph 13, its Panel will also consider:
    • Children at risk of permanent exclusion;
    • Young people permanently excluded;
    • Children Missing Education; and
    • Looked After Children.
  3. The Council’s FAP says:

“Parents’ (sic) will be given prior information about a decision to refer a pupil to panel and will have the opportunity to express preferences about alternative placements and/or to make a written representation to the panel. Wherever possible, parents’ views will be considered, but will not override the protocol if the preferred school is unable to take the young person.”

My Findings

Conduct of the Panel

  1. There is no injustice to Mr X from the conduct of the Panel in June 2019 since the school withdrew the case and nothing changed. Therefore, I will focus on the September 2019 Panel.
  2. Mr X says he did not get the opportunity to contribute to the Panel and nor did Y.
  3. In response to my enquiries, the Council provided a copy of a letter School B sent to Mr X before the June 2019 Panel. This letter invited Mr X to make written representations to the Panel. There is no evidence the school sent a similar letter to Mr X before the September Panel.
  4. The Council says it is up to the referring school to tell parents about a FAP referral. The Council’s FAP does not specify where this responsibility lies, saying only that parents “will be given prior information” about a referral.
  5. It is the Council’s responsibility to have a FAP for its area. The Panel issues its decision on Council letterhead and directs parents to a Council officer with questions. It is the Council’s responsibility to ensure the Panel runs in line with its FAP. Therefore, I find it is the Council’s responsibility to tell parents about FAP referrals and invite representations.
  6. The Council did not tell Mr X about the Panel. This is fault. As a result, the Council denied Mr X the opportunity to contribute to the Panel. The Council should apologise to Mr X for this injustice.
  7. Mr X says that because of the Panel’s decision, Y has been out of school since September 2019. However, the Panel withdrew its decision because Mr X refused to send Y to the PRU.
  8. School B’s governors then issued a “direction off-site for the improvement of behaviour” which said that Y had to attend the PRU. This is a power given to schools by the Education Act 2002. The Council is not involved in making such directions.
  9. The Ombudsman cannot investigate complaints about what happens in schools. School B issued the direction, and so the Ombudsman cannot investigate this decision or its outcome.

Should Y have been referred to FAP?

  1. Councils must have a Fair Access Protocol to ensure children without a school place can access education. Y already had a place at School B. Trying to apply the principles of Fair Access to Y’s circumstances highlights the contradictions in the Council’s FAP.
  2. These contradictions arise because the Council has expanded its FAP to include children who already have a school place. As a result, the Panel’s ‘decision’ Y should attend a PRU had no weight because Mr X opposed it. If Y had no school place, the Panel could direct any school or PRU to accept Y.
  3. There is no scope in the School Admissions Code for councils to apply Fair Access Protocols to pupils with a school place. The Panel should not have accepted a referral for Y under FAP. It did, and this is fault.
  4. Doing so caused Mr X unnecessary frustration. He was excluded from a process which, had his views been sought at the outset, need never have continued. The Council should apologise to Mr X for this injustice and pay him £150.

Agreed action

  1. To remedy the injustice from the fault I have identified, the Council should:
    • Apologise to Mr X in writing; and
    • Pay Mr X £150.
  2. The Council should take this action within four weeks of my final decision.
  3. The Council should also take the following action to improve its service:
    • Tell parents when the Council receives a referral to the Fair Access Panel and invite representations;
    • Review the Fair Access Protocol Terms of Reference to ensure it meets the requirements of the School Admissions Code; and
    • Ensure the revised Fair Access Protocol Terms of Reference preserves the distinctions between children without a school place and those with a place.
  4. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

  1. I have completed my investigation. The Council is at fault. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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