Summary: Ms X complains about how the Council evaluated her organisation’s proposals for free schools. The Ombudsman has discontinued our investigation as Ms X’s complaint is not within our jurisdiction. This is because the Council is acting on behalf of the Secretary of State when evaluating proposals for free schools.

The complaint

1. Ms X complains that the Council’s evaluation of her organisation’s proposals to establish new free schools was biased and perverse and it failed to follow the Government’s guidance. As a result, her organisation was not shortlisted to provide two free schools.
2. Ms X also complains the Council delayed in providing feedback on why her organisation was not shortlisted which prevented them from challenging the decisions.

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The Ombudsman’s role and powers

We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)

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How I considered this complaint

3. I have considered the information provided by Ms X and the Government guidance on Establishing a new school: the free school presumption. I have invited Ms X and the Council to comment on the draft decision.

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What I found

Government guidance

4. The Government has provided non statutory guidance on establishing new schools and how the free school presumption process should work. The local authority runs the presumption competition by inviting and evaluating proposals for free schools. A representative from the Department for Education (DfE) may also be involved in the assessment process. The local authority then provides its assessment of each application to the Secretary of State to make the final decision as the sponsor will enter a financial agreement with the Secretary of State. The guidance states the local authority’s preference is supported in the majority of cases but there are times when the evidence the department holds about sponsors means a different sponsor may be more suitable.

What happened

5. The Council invited proposals for two free schools at different times. Ms X’s organisation submitted proposals for both competitions. The Council evaluated the proposals but did not shortlist Ms X’s organisation for either competition. Ms X’s organisation requested feedback. Feedback on one proposal was provided in a telephone call between an officer and a representative from Ms X’s organisation. The Council later provided feedback on the second competition in writing.
6. Ms X considers the feedback provided showed the Council did not properly or fairly evaluate her organisation’s proposals and she believes its scoring was perverse. Ms X considers this led to her organisation’s proposals not being shortlisted. Ms X also considers the Council delayed in providing feedback on why her organisation had not been shortlisted.

Analysis

7. We investigate the actions of the Council in administering its own functions. I do not consider I can investigate Ms X’s complaint as the Council is acting on behalf of the Secretary of State rather than administering its own functions. The Secretary of State is not within our jurisdiction.
8. The Council runs the free school presumption competitions and makes a recommendation to the Secretary of State. But the Secretary of State makes the final decision on which proposer should be appointed as sponsor and it is the Secretary of State who enters into the funding agreement with the successful proposer. The Council is therefore acting on behalf of the Secretary of State in running the presumption process and providing information for him to make his decision. The Council is not carrying out an administrative function of the Council. I therefore cannot investigate Ms X’s complaint about how the Council evaluated her organisation’s proposals.
9. I also cannot investigate Ms X’s complaint about the Council’s delay in providing feedback on the proposals. The Council provides feedback as part of the presumption process and it is again acting on behalf of the Secretary of State.

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Final decision

10. I have discontinued my investigation into Ms X’s complaint as it is not within our jurisdiction. This is because the Council in evaluating proposals for free schools is acting on behalf of the Secretary of State.

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Investigator's decision on behalf of the Ombudsman