The Ombudsman's final decision:
Summary: Mrs X complained the Council placed her son, Y, in school year 5 and not in the year below as she requested. The Council is at fault because it failed to decide which year group Y should go into. This fault caused avoidable distress. The Council should make a payment to reflect this and review its processes.
- Mrs X has complained the Council placed her son, Y, in year 5 when the family moved into its area and not in year 4 as requested. She says her son’s complex needs require that he is educated at a year below his chronological age.
The Ombudsman’s role and powers
- 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)
- 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)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- 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)
How I considered this complaint
- I spoke to Mrs X and considered the information she provided.
- I have considered the Council’s replies to my enquiries.
- I have considered the School Admissions Code 2014, this Council’s Admissions Policy for 2017-8 and our guidance on remedies.
- I gave the Council and Mrs X the opportunity to comment on my draft decision. I have taken their comments into account before making my final decision.
What I found
- The Schools Admissions Code (December 2014) says at paragraph 2.17 that parents may ask for a place outside of their normal age group, for example, if a child has experienced problems such as ill-health. Admission authorities must explain the process for requesting a place outside the normal age group in their admission arrangements. Admission authorities must make decisions on the basis of the circumstances of each case and in the best interests of the child concerned. They must take into account the view of the child’s parents and the views of the head teacher at the school. They must write to the parents setting out clearly the reasons for their decision.
- Parents have a right to appeal against the refusal of a place at their preferred school. They do not have a right of appeal where a place is offered at the preferred school but not in their preferred age group.
- The “normal admissions round” means applications for places in reception at primary school (starting school) and for year 7 at secondary school (moving from primary to secondary). Applications for a place outside these times, such as when parents move house, are known as “in-year” applications.
- The Admissions Code (2014) also states there is no requirement for local authorities to co-ordinate in-year applications but they must provide information about how to make an in-year application and how in-year applications will be dealt with.
- This Council’s admissions policy for 2017-2018 says in-year applications should be made through the Council’s online admissions portal. It says: “when applications are received online we will forward them to your preferred school(s)”. It says if the preferred school(s) cannot offer a place “we will allocate the closest school to your home with a place”.
- The Council’s Admissions policy explains what parents must do if they are requesting an admission outside the child’s normal age group in the normal admissions round (for example admission to reception/year one or at transition to secondary school.
- The policy also covers the situation once pupils have already been admitted. It says “Once a child has been admitted to a school it is a matter for the Head Teacher as to how best to educate them. Any decision to move to a different age group should be based on educational reasons”.
- The policy therefore does not explicitly cover the situation where an in-year admission is made for a place outside the child’s normal age group.
- The Council’s Admissions Policy also says it operates a Fair Access protocol (FAP) to ensure that all vulnerable children who are without a school place are offered a school place as quickly as possible. It says to achieve this it may be necessary to admit a child to a school that is already full and ahead of other pupils on a waiting list.
Education and Health care plan
- A child with special educational needs may have an Education and Health Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- The Education Act 1996 says parents must ensure their children receive an education, whether at school or by home educating them. A council can take legal action against a child’s parents where a child is not attending school and the council is not satisfied he is receiving suitable education at home.
- What is a “suitable education” depends on the child’s age, abilities and any special educational needs he may have.
- The statutory guidance on children missing education says schools must inform the council if they are about to remove a child’s name from their register. The council should then consult with the child’s parents to establish if the child is receiving a suitable education. The guidance says: “prompt and early intervention are crucial … in ensuring that children are safe and receiving suitable education”.
- Section 19 of the Education Act 1996 says if a child of compulsory school age cannot attend school the council must make arrangements to provide suitable education either at school or elsewhere (for example, at home). The duty to provide education outside school applies where the council and the school agree that a child cannot attend school
- The courts have decided that the fact a child has been bullied at a school does not make that school unsuitable. The school is expected to have a bullying policy in place and to take appropriate action to deal with any bullying that occurs.
- Mrs X and her family moved to the Council’s area from outside England and she applied for a school place for Y at the end of June 2017. In July 2017 the Council offered a place at School 1 in year 5. Mrs X asked if Y could be placed in the year below his peers of the same age because he had a deferral at his previous school that meant he had been educated in the year below.
- By September 2017 the Council had obtained information from Y’s school where he used to live, which included various assessments of Y, including a detailed assessment by a specialist children’s hospital. The Council established that although he had a deferral he did not have Exceptional Needs Funding, which is the equivalent of an Education and Health Care plan (EHC plan). It consulted with four schools in its area, all of whom did not want to offer a place because of Y’s medical and educational needs.
- School 1 said it had reviewed the information from the previous school and talked to Y’s parents. It said Y had complex needs and was currently working at least two years behind his peers. It said it could not meet Y’s needs.
- School 2 said it had considered the information from the previous school and had discussed it with that school. On the basis of this it said Y had a significant amount of “additional and medical needs” and needed significant extra provision which the school could not provide.
- School 3 said its year 5 classrooms were both located on the first floor, which would be unsuitable for Y because he could only manage a few steps and not a whole flight of stairs. It said it could not move classes round on site because it had arranged the classes to meet the needs of another child who was a wheelchair user. It said it already had two students in year 5 with an EHC plan and numerous others on the Special Educational Needs register. It said it could not offer Y the additional support the Council had told it would be needed.
- The Council emailed school 3 on 26 September 2017. It said it had approached four schools and all had responded in the same way. It said school 3 had not admitted any children under its Fair Access protocol (FAP) that term. It said:
“I understand your comments with respect to year 5, which is a difficult year group across Eastbourne, but I understand that [Y] has been educated in the year below his chronological age in [former country] and you may wish to think about where he should best be placed, at least initially.
Under the circumstances I am afraid I will have to ask you to admit [Y]. I appreciate that it may take a little while to put everything in place to meet his needs but this should not prevent him from going on roll and starting the process. Please ensure that [Y] is on the roll by 3 October”.
- The Council says the Head Teacher contacted its Head of Admissions to discuss the situation. At this point it was unclear which year group Y would be placed in.
- Y started at school 3 in early October 2017 in year 5 and not year 4 as his parents requested. Mrs X says Y did not settle in year 5 and was not able to keep up with his peers socially. In addition, going into the higher year meant he had effectively missed a year of school. The teacher gave him some year 3 work, which further marked him out from his peers. Mrs X says Y was bullied and there was an incident in January 2018 where he sustained facial injuries. Mrs X was unhappy with the way the school dealt with this and reported the matter to the Council. She also contacted her MP, who wrote to the Council.
- The Council replied to the MP on 13 February 2018. It said that although Y was educated in the year below previously he did not need other support in the classroom and did not have the equivalent of an EHC plan. It said when doing in-year admissions it didn’t “offer direction to schools” about year group but it had told the school that Y had been educated in the year below. It said it was not aware of any problems until late January. It was aware of the bullying incident and was working with the school to discuss school safety but this remained the responsibility of the school.
- The Council also wrote to Mrs X on 13 February 2018. It said
“We can confirm that the decision to, or not to, place [Y] in a year group below the one in accordance with his age is that of the school. Local Authorities are unable to direct or instruct schools to alter a child’s year group placing and the decision can only be made [by] the school the child is allocated a place at in view of evidence provided and resources available to them”.
- In its reply to my enquiries it said:
“The Council believes that the best interests of the child are served by enabling the head teacher to make an initial decision. They will have the in-depth knowledge of the cohort concerned, the capacity of staff in the school to differentiate the curriculum, and in most cases, the needs of the pupil given that they will be in a position to meet with the family concerned to discuss provision”.
- Mrs X complained to the school about the lack of support she felt it had provided for Y and its decision to place him in year 5 and not the year below as requested. The school replied: “The school does not make this decision”. It said it was aware there was some flexibility when starting school but it was not aware of flexible options at other ages.
- Also in February 2018 Mrs X requested an EHC plan and a school transfer. The Council refused to assess Y for an EHC plan because it said his needs could be met within the resources of a mainstream school. Mrs X appealed and the Council has now agreed to assess. School 4 offered Y a place but this was not in the year below. Mrs X says the school told her it could not offer the support Y needed without an EHC plan, which at the time was not progressing, so she decided not to take up that offer of a place.
- From late January 2018 onwards Y became increasingly anxious about school and his attendance declined. In an email to the Council on 24 May 2018 school 3 said Y’s attendance was 58% and said he “is hardly ever here”. Since late May 2018 Y has not been in school because he was signed off by his GP with acute anxiety. His parents say school 3 agrees with them that Y cannot return to that school and they feel there is no point in him starting a new school unless there is sufficient support in place. They say Y has missed most of the last year’s schooling because it simply hasn’t worked for him. It is therefore unlikely Y will be able to return to school in September.
- In its replies to my enquiries the Council said Y has a place at school 3, which can meet his medical needs. It said it advised the school not to remove Y from its roll until a new school place was confirmed. It has provided some general information to Mr X about home educating but says Mr X hasn’t been in touch with the Council or school 3 to move this forward. The Council says it has not received any attendance referrals from school 3 or an off-rolling form. It says it has discharged its responsibility in providing a school place for Y.
- The Council did not co-ordinate Y’s in-year admission. It approached four local schools with relevant information about Y and asked if they could offer a place. It then directed school 3 to offer a place under its Fair Access Protocol. It did not decide which school year Y should enter, based on his best interests. It delegated this decision to the school. The school then told Mrs X it did not make decisions about which school year a child should be in.
- The Admissions Code required the Council, as admissions authority, to make this decision in Y’s best interests, taking account of parental views and in consultation with the head teacher. The Council was not entitled to delegate this decision to the school. In any case the school does not appear to have considered it did make this decision.
- In this case the Council knew Y had been educated at the year below his peers and had a lot of information from Y’s previous school, including assessments undertaken by professional bodies such as the specialist children’s hospital. It consulted with four schools, all of whom had said they could not support Y because of the level of his medical and educational needs. Since Y had previously been educated in the year below, albeit outside England where the school years work differently, there was a need for careful consideration about which year group was in Y’s best interests. A single line in an email to school 3 that it might wish to consider placing Y in a lower year group was not sufficient consideration.
- The Council should have considered the information it had, consulted with the head teacher and decided which school and which year group was in Y’s best interests. It did not do so. This is fault. This fault has caused Mrs X and Y avoidable distress.
- The Head Teacher has since told the Council it was appropriate for Y to be educated in year 5 in September 2017 based on his age, available support and progress. It is therefore likely that, but for its fault, the Council’s decision would still have been to offer him a place in year 5.
- Y is currently out of school on medical grounds. The Council has been aware since at least May 2018 that his attendance was poor due to his anxiety. It needs to decide if he can attend school. If he cannot attend school at the present time the Council should make alternative arrangements for him to ensure he receives a suitable education.
- The Council has completed an EHC assessment. It has decided Y does not meet the threshold for an EHC plan and that his needs can be met in mainstream school with an individual needs plan in place. If Mrs X is unhappy with this decision she can appeal to the Special Educational Needs and Disciplinary (SEND) tribunal. The tribunal can decide what support a child needs and which school is suitable to meet their needs. These are not decisions the Ombudsman can make or comment on.
- The Council has now considered which school and year group is in Y’s best interests. It has consulted with an Educational Psychologist. It has decided it would be appropriate for Y to be educated in the year below. However, the two schools Mrs X has now applied to are full in both years 5 and 6. Mrs X is appealing against the decision not to offer a place at those schools.
- The Council has suggested Y remains at school 3. School 3 is now an academy and is therefore its own admissions authority. This means the decision about which year group is appropriate for Y is for the head teacher rather than the Council.
- Since Mrs X’s complaint, the Council has therefore now considered what is in Y’s best interests. It has taken relevant information into account and has consulted with an appropriate expert. I cannot comment on a decision that has been made without fault.
- Mrs X has not complained to us about the bullying Y experiences in school. We cannot investigate bullying as this is an internal matter for the school. The law says the fact that a child has been bullied does not on its own make the school unsuitable.
- The Council will, within one month of the date of the final decision:
- apologise to Mrs X for its failure to properly consider and make a decision about which year group was in Y’s best interests when she applied for a school place for him;
- pay Mrs X £200 for the avoidable distress caused by this fault and the time and trouble pursuing the Council about it; and
- pay Mrs X £500 to be used for the benefit of Y to reflect the impact on him of the Council’s failure to properly consider his best interests when it allocated a school place for him.
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.
Investigator's decision on behalf of the Ombudsman