Summary: Mr X complains the Council failed to ensure his son had a school place or suitable education, causing distress. The Ombudsman finds the Council at fault. We recommend the Council provides an apology, pays £1200 for missed education, pays £200 for distress and takes action to improve its service.

The complaint

1. Mr X complains the Council failed to ensure his son, Y, received any education from March to July 2019, causing distress. He believes the Council has discriminated against him.

Back to top

The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
4. 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.
5. 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)

Back to top

How I considered this complaint

6. I spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

What I found

Identifying children out of school

7. Councils have a duty under section 436A of the Education Act 1996 to make arrangements to identify children who are not registered pupils at a school and are not receiving suitable education otherwise. This duty only relates to children of compulsory school age.
8. The council should consult parents when establishing whether the child is receiving suitable education. If the council identifies a child is not receiving suitable education it should ensure the child returns to full time education either at school or in alternative provision. Prompt action and early intervention are crucial to discharging this duty effectively and in ensuring children are safe and receiving suitable education.

Fair Access Protocol

9. 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.
10. The operation of FAPs is outside the co-ordination arrangements and is triggered when a parent of an eligible child has not secured a place under in-year admission procedures.
11. Where a council considers an Academy will best meet the needs of any child, it can ask the Academy to admit that child but has no power to direct it to do so. The council and the Academy will usually come to an agreement, but if the Academy refuses to admit the child, the council can ask the Secretary of State to intervene.
12. The Secretary of State has the power under an Academy’s Funding Agreement to direct the Academy to admit a child, and can seek advice from the Adjudicator in reaching a decision.

Alternative provision

13. Section 19 of the Education Act 1996 says that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, exclusion or otherwise. Unless that child will no longer be of compulsory school age within the next six weeks and has no exams to complete.
14. Section 8 of the Act says a child stops being compulsory school age at the end of the day which is the “school leaving date” for the calendar year, after the date he turns 16.
15. The Education (School Leaving Date) Order 1997 says the “school leaving date” for 1998 and successive years shall be the last Friday in June.

School Admissions

16. The Department for Education publishes statutory guidance “School Admission Code”. Admission authorities must comply with this Code.
17. A parent can ask an admission authority to admit their child to school outside their normal age group.

Post 16

18. The Education and Skills Act 2008 says 16 to 18 year olds must be in training or education. Further that councils should promote education and training with a view to ensuring 16 to 18 year olds fulfil that duty.

What happened

19. On 25 February 2019 Mr X applied for his son, Y, to go to school. I note all schools in the Council’s area are Academies, responsible for their own admission arrangements.
20. I note Y was of compulsory school age until the last Friday in June; 28 June 2019. Y would have entered school in year 11.
21. By email of 21 March 2019 Mr X told the Council Y had moved to the UK on 14 February 2019 and was out of school, despite his applications for a secondary school place. He said School A had refused a place and School B said it was waiting to hear from the Council. He asked the Council to accept Y’s application.
22. The Council sent Mr X an auto-acknowledgement which says it will reply within 10 working days. I note this email refers to the Council’s website for more information on school admissions. It also says if the enquiry relates to a child’s secondary school place they should download an application form to send to the preferred school.
23. In response to enquiries the Council acknowledges it did not send a formal reply to Mr X’s email and offers to apologise for this. However, the Council suggests its auto-acknowledgment provided enough information, as it referred Mr X back to the school.
24. Mr X contacted the Ombudsman. He said School B told him it was up to the Council to decide if Y could attend. But the Council told him it was up to School B. He considers the Council should have ensured his son received an education. He suggests the Council should now enrol his son into year 11.
25. In response to enquiries the Council set out the relevant law including the exemption to section 19. The Council said its duty to make suitable educational provision would have ended on 17 May 2019, being six weeks from 21 March 2019. However, it was unaware Y was out of school as it did not know School B had declined a place. It did not engage its FAP for the same reason. It says the decision to admit Y was for School B so it does not know why School B would have needed a response from the Council.
26. The Council has no formal records of calls with School B or Mr X. However, a Council officer has outlined his contacts. The Council officer says he received a call from School B but cannot recall the conversation. He attempted to call Mr X once and left a voicemail. He also emailed Mr X’s solicitor twice in May but received no response.
27. The Council says it will review its handling of such enquiries as it accepts it could have intervened further. It offers to apologise to Mr X and signpost to post 16 opportunities. It will also remind School B of its responsibilities.

Findings

28. Having carefully reviewed Mr X’s email of 21 March 2019 I find it was clear Y had been out of school since 14 February 2019, Mr X had been unable to secure a school place and, Y was not receiving any education. Although the Council says it was not certain School B had declined a place, Mr X had said School B was waiting to hear from the Council and Y was out of school. I therefore consider the Council knew or should have known that Y had not secured a place under in-year admission arrangements and was not otherwise receiving suitable education.
29. In light of the above I find the Council should have followed its FAP from 21 March and asked School B or another Academy to admit Y. Its failure to do so is fault.
30. As Y was out of school the Council should have arranged alternative provision in the meantime. I consider the exemption under section 19 does not apply because Y would not have ceased to be of compulsory school age within six weeks of 21 March. It is also possible he would have sat his GCSE exams had he attended school. The Council is at fault as it did not make suitable educational provision for Y from 21 March 2019 until 28 June 2019.
31. The Council should have responded directly to Mr X’s email of 21 March 2019 within 10 working days but it did not do so. This is fault.
32. Although I note the Council made attempts to contact Mr X I find it should have emailed him directly and made more than one attempt to contact him by phone. Although I note the Council spoke to School B, it has no record of this call. I therefore consider the Council did not take prompt or effective action to ensure Y received education.
33. Because of the Council’s fault, Y missed three months’ education. However, I cannot say with certainty Y would have had the opportunity to take his GCSEs. This is not automatic but depends on a school’s application and whether an exam board will allow late registration. I note Y and his family have also suffered distress and uncertainty. I will recommend the Council remedy this injustice.
34. The Council is not responsible for admissions to Academies and therefore I cannot ask the Council to give Y a school place or enter him into school outside of his normal age group.
35. I have not seen any evidence to suggest the Council’s actions were influenced by Mr X’s race or ethnicity. Furthermore, it is a matter for the courts, not the Ombudsman, to decide if there has been unlawful discrimination.

Agreed action

36. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
• Provide Mr X with a written apology for failing to respond directly to his email and failing to ensure Y received education;
• Pay Mr X £1200 in recognition of Y’s missed education, for Mr X to use for the benefit of Y’s education;
• Pay Mr X £200 for the distress and uncertainty suffered by him, Y and his family;
• Signpost Mr X to post 16 opportunities;
• Review its handling of Mr X’s enquiry, take action to prevent recurrence of identified faults and inform the Ombudsman of the action taken.
37. The Council has accepted my recommendations.

Back to top

Final decision

38. I find the Council failed to ensure Y had a school place or alternative provision over three months. The Council has accepted my recommendations and I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman