Summary: Mr B complained the Council failed to properly consult those affected when deciding to expand a local school and based its decision on inaccurate and misleading information. There is no fault in the Council’s decision to expand the local school. The Council delayed responding to Mr B’s complaint. That caused Mr B to have to go to time and trouble to pursue it. An apology is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council, in deciding to expand the local school:
• failed to properly consult those affected; and
• based its decision on inaccurate and misleading information.
2. Mr B also complains the Council delayed considering his complaint. Mr B says due to the Council’s actions he is now faced with dealing with more parking issues due to extra children attending the local school.

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The Ombudsman’s role and powers

3. 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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(3))
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

5. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

7. Mr B lives close to a primary school. In September 2018 the Council decided to consult on a proposal to expand the size of the school. Consultation began on 8 October. The Council advertised the proposal on its website, sent letters to all parents/carers of pupils at the school, wrote to governing bodies of other schools in the area, placed a notice in a local newspaper and displayed the notice at all entrances to the school. The Council also held drop-in sessions on 15 and 17 October 2018. Consultation ended on 12 November 2018.
8. In January 2019 Cabinet approved the proposal to expand the school.
9. Mr B put in a complaint on 16 January 2019. The Council responded to the complaint on 1 March but did not uphold it. After an exchange of emails Mr B asked the Council to take the complaint to the next stage on 22 July 2019. The Council responded to the complaint on 14 October 2019. The Council did not uphold the complaint. Mr B asked the Council to move the complaint to stage three on 17 October. The Council responded to that complaint on 29 November 2019. The Council did not uphold the complaint.

Government guidance and legislation

10. Under section 14 of the Education Act 1996, councils have a statutory duty to ensure there are sufficient schools for primary and secondary education in their areas.
11. The ‘Making significant changes (‘prescribed alterations’) to maintained schools’ is statutory guidance (the guidance). This says the statutory process should be followed to enlarge premises as set out in the Prescribed Alterations Regulations if the proposed enlargement is permanent (longer than three years) and would increase the capacity of the school by:
• more than 30 pupils; and
• 25% or 200 pupils (whichever is the lesser).
12. The guidance says the consultation period is four weeks and best practice is to hold consultations and public meetings (either formal or informal) during term time, rather than school holidays and, where appropriate, extend the consultation period if it overlaps school holidays.
13. The guidance says consultation should include, amongst others:
• publication of the proposal on the council website;
• a brief notice of the proposal in a local newspaper;
• posting of the proposal on the school premises and at all entrances to the school; and
• notifying parents of every registered pupil at the school.
14. The Government has issued a guide to forecasting pupil numbers in school place planning as part of the School Capacity Survey (the guide). This says councils need to produce forecasts of pupil numbers so they have up to date information on the number of school places needed in the area, and so place planning decisions can be taken accordingly.
15. The guide says forecasts of mainstream pupil numbers must be submitted to Department for Education each summer as part of the annual School Capacity (SCAP) Survey. It says the Government expects local authorities to forecast demand for school places based on “planning areas” which are mutually exclusive groups of schools that represent admissions patterns and reasonable alternatives to one another.
16. The guide says forecasts should represent the pupils a council expects to be educated in each planning area in each year. So, if some pupils who live in Town A routinely attend a school in Town B and the Council expects this to continue, they should be forecast in the Town B planning area.
17. The guide sets out factors councils should consider when forecasting pupil numbers. That includes:
• population based data for the number of children who live in the council’s area and any other areas that may contribute pupils to the reception cohort;
• a population estimate or use of an external source of population or birth forecasts, as some of these children will not yet be born when the council produces the forecasts; and
• an uptake factor to decide what proportion of the children in the underlying population will need a mainstream, state-funded school place.
18. The guide goes on to say councils may need to make some manual adjustments such as for the inflow of pupils due to new housing. The guide says pupil forecasts should only include expected pupil yields from housing developments that have a high probability of being delivered within the timeframe of the forecasts. In most cases such developments will have full planning permission. If the council believes a development that does not have full planning permission will proceed and will yield pupils within the forecasts timeframe, the guide says there is an expectation the development will be present in the council’s latest five year land supply.

Analysis

19. Mr B says the Council failed to properly consult those affected before deciding to expand a local school. I am satisfied the statutory guidance, which I refer to in paragraph 13, sets out the consultation requirements. I am satisfied the Council met the consultation requirements in this case given it placed the proposal on its website, advertised it in a local newspaper, placed a notice on the school entrances, told parents of registered pupils at the school and carried out two consultation events. There is, however, no requirement for the Council to consult residents of properties close to the school and I therefore cannot criticise it for failing to do that. As I also say in paragraph 12, the Council is required to consult for a four-week period. I am satisfied the Council met that timescale in this case. As I am satisfied the Council advertised the proposal in accordance with the statutory guidance I have no grounds to criticise it.
20. In reaching that view I am aware Mr B has concerns the Council did not begin the consultation until October 2018. Mr B says it originally intended to do so in January 2018. However, whenever the Council carried out the consultation, it would only have consulted for four weeks. So, I do not consider any injustice resulted from carrying out the consultation in October 2018 rather than January 2018. The timescale for consultation would still have been the same.
21. Mr B also has concerns about the timing for the two consultation events. As I understand it both events took place during the same week with one event between 3:30pm and 6:30pm and the second event between 6pm and 8pm. Mr B says that did not give those wanting to comment enough time to attend, particularly if they worked shifts. There is, however, no guidance on suitable times for consultation events. I do not consider it fault for the Council to carry out the events at the times referred to in this paragraph. I am satisfied though Mr B rearranged his working week to attend both consultation events. So I am satisfied there was no injustice to Mr B caused by the timing of the events complained of.
22. Mr B says the Council based its decision to approve the proposal to expand the school on inaccurate and misleading information. Mr B is particularly concerned about the birth rate statistics and whether those statistics supported the need for an extra class. Having considered the report and associated statistics on which the report is based I have found no evidence to support Mr B’s allegations. I am satisfied the report properly recorded the projected increase in demand for places at the school. I am satisfied the numbers quoted in the report reflect the 2018 SCAP summary. I recognise Mr B says the actual figures are different and therefore the Council’s calculation of birth rates is inaccurate. However, the Council’s method of forecasting the need for school places follows the guide I refer to in paragraphs 16,17 and 18. As that makes clear, the method of forecasting does not just consider birth rates. As it is a forecast the actual figures may not be the same. As the Council followed the guide when carrying out its forecasting I have no grounds to criticise it.
23. Mr B says Cabinet was misled because many children attending the school do not live in the local area. Mr B says the demand for school places in the area is therefore not accurate. I am satisfied though the report for Cabinet and the appendices, identified the distances children live from the school. That included the fact at that point 8.8% of the children attending the school do not live in the local area Mr B refers to. As the report points out, that is often due to families moving out of the immediate area after receiving a school place. The report also recorded the distance between the school and the last child offered a place in the previous three academic years. Given the information included in the report and appendices I could not say the Council misled Cabinet or that Cabinet based its decision on inaccurate information. Cabinet could have decided to refuse the proposal or defer it for more information if it had any concerns with the issue of which areas children attending the school would come from. I have seen no evidence to suggest Cabinet had concerns.
24. Mr B says the Council did not present alternatives to expanding the school in the report for Cabinet and therefore it did not have a full picture. The Council is not required to do that. However, I am satisfied as part of the appendices the Council included concerns raised about whether there was capacity at other schools rather than expanding this school. The report also set out why officers considered this school the most suitable to take an extra class given it had already increased its intake for two bulge years. Again, if Cabinet had concerns about the proposal to expand the school I would have expected it to raise those concerns when considering the report. I have found no evidence to suggest Cabinet had concerns.
25. The Council accepts though that when presenting the information to Cabinet it should have clarified which wards’ birth data were included in the forecast as it did not make clear the calculations included 75% of a third ward. The Council says with hindsight it could have included that in the report. I understand Mr B will be concerned about that. However, I am nevertheless satisfied the report for the proposal made clear 8.8% of those currently attending the school do not live in the two local wards. I am therefore satisfied Cabinet knew children from different wards would also attend the school. I said earlier I have seen no evidence to suggest Cabinet had concerns about whether there was enough local demand for the school. Given Cabinet knew of the fact not all pupils attending the school would come from the two local wards I do not consider it likely, on the balance of probability, failing to specify how the figures had been calculated affected the overall outcome.
26. The Council delayed considering Mr B’s complaint. The Council’s complaints procedure says it will respond to stage one complaints within 10 working days. The Council did not meet that timescale in this case. That delay is fault. The Council’s complaints procedure says the Council will respond to a stage two complaint within a maximum of 15 working days, unless the Council needs more time to respond to the complaint. In those cases the Council should tell the person complaining about the new deadline. Mr B asked for his complaint to go to stage two on 22 July 2019. However, the Council did not respond until 14 October 2019 and did not tell Mr B it needed more time to respond to his complaint. Failure to meet the 15 working day target is fault. The Council also delayed responding to the stage three complaint. That is also fault. That caused Mr B to have to go to further time and trouble to pursue his complaint. I recommended the Council apologise for those delays. The Council has agreed to my recommendation.

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Agreed action

27. Within one month of my decision the Council should apologise for the delay responding to Mr B’s complaint.

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Final decision

28. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman