Summary: Mr V complained the Council failed to properly process an in-year transfer application for his child, W. Instead the Council made W have a managed move to the new school, which broke down. This caused Mr V time, trouble and distress. It also caused W uncertainty whether, had the Council processed this correctly, the transition to the new school would have been successful. There is evidence of Council fault and it has agreed to apologise and make a payment for distress, time and trouble and uncertainty.

The complaint

1. The complainant, whom I shall call Mr V, complains that the Council:
1. did not handle correctly an application for a school place for a child who was previously Looked After; and;
2. failed to address his complaints appropriately.
2. Mr V also asked me to look at the failure of the managed move and the actions of the school in ending the managed move but these are outside of the Ombudsman’s jurisdiction. We cannot consider school matters.
3. The Council has said it is no longer involved in managed moves, which are negotiated by the schools themselves.

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What I have investigated

4. I have investigated Mr V’s complaint about a failure to deal with a school application and how the Council then dealt with the managed move. I have not looked at the actions of the school and I explain why at the end of this statement.

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The Ombudsman’s role and powers

5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. We cannot investigate a complaint if someone has appealed to a tribunal or a court. (Local Government Act 1974, section 26(6)(a), as amended)
7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
8. 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 further investigation will lead to a different outcome, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)
9. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
10. 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.
11. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
12. 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

13. I considered the information sent by Mr V with his complaint. I made enquiries of the Council and assessed its response. I refer to the February 2018 statutory guidance on ‘Promoting the education of looked-after children and previously looked-after children’ and the January 2013 statutory guidance on ‘Children who cannot attend school because of health needs’. We expect Councils to follow statutory guidance or have very good reasons why they cannot do so. I sent Mr V and the Council a copy of my draft decision and took the comments they made into account before issuing a decision.

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What I found

Background

14. W is a previously looked after child. Looked after, and previously looked after children are prioritised in school admissions. Faith schools can prioritise children of that particular faith but can prioritise looked after and previously looked after children of the faith above looked after and previously looked after children not of the faith.
15. Mr V said he wanted W to attend School B, which was a single sex faith school and its own admissions authority. At the time, W was not baptised so was not prioritised for entry. Instead, W went to School A.
16. School A was, according to Mr V, a highly academic, co-educational school. Although W did not have an education, health and care plan (EHCP), W did have autistic spectrum disorder (ASD) and Mr V and W felt School A was not meeting her needs. W was unhappy there.
17. Since first applying to School B, W had been baptised. Furthermore, there was a place available at School B in the correct year group. Mr V asked for an in-year transfer for W. The Council said the only way W could change schools was through a managed move (also known as a ‘negotiated transfer’).
18. This complaint is in relation to that managed move and what happened afterwards. I will identify fault and consider the injustice caused by the fault later.

Application for an in-year transfer

19. On the form requesting an in-year transfer, W has been marked as ‘no’ to being ‘looked after or public care’. This is correct as W was a previously looked after child, not a looked after child. The Council’s form failed to identify previously looked after children even though they also had priority for admissions. This is fault. The Council says it changed its form once it was aware of this.
20. The second page of the form indicated W was supported by the post-adoption team. This was not noticed by officers in the Council even though the form was looked at by more than one officer in one department. If an officer had noticed this, it would have been aware W may have been a previously looked after child. As a priority, W could then have been given the available place as an in-year transfer. This is fault.
21. On receiving the form, the Council could have asked School A (and/or Mr V) whether, in line with relevant statutory guidance, seeking advice and guidance from the Virtual Headteacher might be appropriate given W was so unhappy. The Council has told me it did not refer to the Virtual Head. I consider this is fault.
22. The Council informed Mrs V that the request for an in-year transfer had been turned down because of a behaviour log shared by School A. Mr B said it took ten weeks to get to that point. Although information was required from School A, it should not have taken this long to tell Mr V the application was unsuccessful. This is fault.
23. The Council said this meant the only way for W to attend School B was by completing a managed move. Given the Council should have simply given W a place at School B, this was fault. The failure to agree to an in-year transfer was appealable but this was not offered to Mr V. There should have been no need for an appeal given a place was available at the school. The failure to alert Mr V to this right of appeal, however, was fault.

Managed move

24. Managed moves are voluntary agreements between schools, parents and children for a child to change school or educational programme under controlled conditions. Because they are ‘voluntary agreements’ there is no specific law governing them (although I note that the tribunal judge that considered this case disagreed). Because they are agreements between schools, the Ombudsman has no jurisdiction to consider them or the actions of a school in ending the agreement.
25. This particular agreement specified:
1. W would remain on roll at School A until School B accepted W permanently on its roll;
2. The placement at School B would be reviewed regularly; and,
3. If the placement at School B failed, the responsibility for W’s education would rest with School A.
26. School B could stop the process at any time. I consider the evidence provided at this point enabled Mr and Mrs V to understand the expectations of School B as well as the implications of failure of a managed move, which would necessitate an immediate return to School A. The form also explained what School B would be looking for in terms of punctuality, conduct and attendance.

Attendance at School B and the managed move ending

27. Mr V told me that W did well in School B. Of the twelve-week process, the first 6 weeks were very positive; W made friends and was enjoying classes. Mr V says the school telephoned him in week ten to say W had made an unfounded allegation against a teacher and could not return. W told him of a ‘bump’ from a teacher’s elbow while the teacher walked down the corridor with her hands on her hips. The teacher said she had not bumped W. The teacher was apparently upset by the allegation. Mr V understood the head had been talking with the teacher the day after the event and that was what led her to decide W could not continue at the school. I cannot comment on this as it is a school matter.
28. I have no evidence to show the Council knew the placement was at risk of breaking down. It only knew what had happened once the placement had broken down. As the school could end the arrangement at any time, and as managed moves are voluntary agreements between schools, I cannot find the Council at fault for this. There is evidence the Council contacted the school to ask for its reasons for ending the process, and asked it to reconsider (just as Mr V did), but it had no ability to insist that School B must take W back. The school did not accept any representations and refused to allow W to return.
29. Once the arrangement broke down, W would have been expected to go back to School A.

Following the breakdown of the managed move

30. Mr V took action against School B. I cannot consider either the actions of the school or matters that have been raised at court or tribunal.
31. There was a place available at School A for W. The managed move agreement had been clear W would return to School A if the placement broke down. Although the school facilitated a staged return, W did not wish to go back; Mr V says W was ‘too scared’ to go back. W’s mental health deteriorated after the failed managed move as W felt so unsupported. This had a knock-on effect on the rest of the family. The Council could have contacted the Virtual Headteacher, at this point, for advice on how to move the situation forward. Given the problems the situation was causing, especially for W, I consider its failure to do this is fault.
32. The Council says it involved Education Welfare Officers when W was not attending but School A had agreed W’s absences. Mr V says the advice was that the only alternative to another managed move, was to seek a placement at another Council school that had places available. This is not evidence of Council fault.
33. The Council later recognised it was wrong to suggest W could only transfer to School B on a managed move. It said Mr V could make a fresh application to School B for a transfer. Mr V says the Council told him the significance of W being a former looked after child too late. He says if the Council had explained this early in the previous month, W may have been able to return with support. As time passed, this was much less likely. This delay is fault. Mr V was unhappy the Council had apparently made suggestions to School B to turn W down for a place. As School B ‘could’ turn down W for a place (although it would struggle if there was still a space in the year group); it cannot be fault the Council told it this too. School B offered a W a permanent place on 28 March 2019.
34. Mr V believes that if the Council had transferred W as an in-year transfer rather than a managed move that this outcome would not have happened. I could not conclude this even on the balance of probabilities. This uncertainty arises from Council fault.

Current placement

35. W is still on roll at School A but is attending School C.
36. Mr V says neither School A nor the Council have agreed to provide school transport for W although School C is some miles away from home. The Council has said there are closer available schools for W should a different placement be desirable. This is not evidence of fault.
37. W does not currently have an Education, Health and Care Plan) otherwise School C could be named within it. At that point, W might be eligible for school transport.
38. I am unlikely to achieve anything for Mr V or W by investigating this point further. Mr V is able to apply formally for school transport, with the medical evidence he has, and return to the Ombudsman if he is unsuccessful at appeal.

Complaints

39. Mr V made complaints about what had happened. The Council was late answering them; especially at Stage Two.
40. Mr V made a request to go to Stage Two on 13 May 2019 and the Council’s response was not sent to him until 19 November 2019. Although this was partly due to the assigned investigator being off on unforeseen long-term sick leave, I consider the Council could have considered reallocating the work earlier. As a result, the process was delayed by at least two months. This is fault.
41. Mr V was unhappy with the individual selected to carry out the Stage Two investigation. However, I consider the response sent to him had the appropriate level of detail and the officer agreed with Mr V even though they were from another service area. Although Mr V wanted them to contact School B, on the balance of probabilities this would not have taken matters any further forward.

Injustice

42. The Council’s failure to properly prioritise W for entry to the school and failure to consider the transfer form appropriately or to seek advice from the Virtual Head (either before the managed move or after its breakdown) is fault. The failure to alert Mr V to a right of appeal or to tell him the significance of W being a previously looked after child when it identified this is also fault. This has caused time and trouble and distress for Mr V as he felt the Council should have done more after the breakdown of the move. It also causes W uncertainty as W cannot know whether the outcome would have been positive had the Council simply allowed an in-year transfer or if it had told Mr V, once it became aware after W had left School B, that a permanent place was possible.
43. The Council’s delay in answering Mr V’s complaints caused further time and trouble in that it also delayed him coming to the Ombudsman.

Agreed action

44. The Council will apologise to Mr V and W within two months of the date of my decision.
45. The Council will make a payment of £500 for Mr V’s time and trouble and distress. It has already agreed to make this payment. I consider this also acknowledges the impact on the family. It is asked to do this within two months of the date of my decision.
46. The Council will make a payment of £400 to W for the avoidable uncertainty that its fault caused within two months of the date of my decision.
47. The Council will amend its procedures so it is proactive about seeking advice from the Virtual Head where looked after or previously looked after children have problems within their educational placements. It has agreed to remind schools, particularly designated teachers, to work with Virtual Heads where they have concerns about such children. It should ensure the Virtual Head is able to provide advice to School A and School C if it is appropriate. It will do this within three months of the date of my decision and advise me of the changes it has made.
48. I note the Council is no longer involved in managed moves. I am not proposing any practice changes for this reason.

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Final decision

49. There is evidence of fault leading to injustice and the Council has agreed to remedy this.

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Parts of the complaint that I did not investigate

50. I was unable to look at the failure of the managed move and the actions of the school in ending the managed move as I cannot consider matters that are the responsibility of a school’s internal management. I have provided detail of the managed move agreement for clarity but have not commented upon it. I am also aware Mr V went to tribunal, which would also put the matter outside of the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman