Summary: The Council is at fault as it delayed in taking steps to find a school place for Ms X’s daughter. However, the fault by the Council did not cause significant injustice to Ms X or to Y as Ms X declined the school place offered by the Council.

The complaint

1. Ms X complains that the Council failed to provide a school place in year 8 or for the start of year 9 for her daughter and failed to apply its fair access protocol.
2. Ms X also complains about how the Council dealt with her appeals for two schools which are academies.

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What I have investigated

3. I have investigated Ms X’s complaint about the Council failing to provide a school place for Y in year eight or for the start of year nine and failing to apply its fair access protocol.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. I have:
• Considered the complaint and the information provided by Ms X;
• Made enquiries of the Council and considered the information provided;
• Invited Ms X and the Council to comment on the draft decision.

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What I found

Admission arrangements

7. The published admission arrangements for Birmingham provide that parents/guardians seeking a in year school place must apply directly to schools. An in year application is one which is made outside the normal admission rounds to reception class in primary school and year seven in secondary school.

Fair Access Protocol

8. The Council’s Fair Access Protocol applies to children in the Council’s area who are unable to secure a school place when applying in year. The Fair Access Protocol sets out the criteria for a child to be considered under the protocol. The criteria include children who have not been able to secure a school place within a reasonable distance of their home address. Reasonable distance for a secondary school aged child is 7000 metres. There is no duty to allocate a place at a parent’s preferred school when placing children through the Fair Access Protocol.

What happened

9. In February 2019 Ms X sent an email to the Council to request a school place for her daughter who I shall call Y. Ms X said Y would require a place for year nine in September 2019 as she attends a middle school. The Council does not have middle schools within its area so its normal admission round is year seven. The Council advised Ms X it was unable to check which schools would have vacancies in year nine in September. It provided details of three schools with possible places in year eight for Ms X to apply directly to.
10. Ms X applied for places at two schools which are academies but she was not offered places. Ms X appealed against the decisions not to offer her Y a place at these schools but she was unsuccessful. The Council administered the appeals but I have not investigated how the Council dealt with the appeals for the reasons set out at the end of this statement.
11. Ms X contacted the Council in July 2019 regarding her appeals. In her email of 16 July she said Y required a school place for year nine. In August 2019 Ms X made a complaint about the Council’s handling of the appeals and asked when Y would be considered by the Fair Access Team to help her get a school place for September 2019.
12. The Council responded to Ms X’s complaint in early September 2019. In its response the Council said its records indicated Y had a place at a middle school but if this was not the case it would offer a place at an available school in proximity to the home address. Ms X immediately advised that Y finished middle school in July 2019 and had been waiting for a school place since.
13. In mid September 2019 the Council offered a place for Y at a school which is approximately 5777 metres from the home address. The Council notified Ms X of this place while she was attending an appeal for another school. Ms X did not accept the place.
14. Ms X considers the Council should have considered Y under its Fair Access Protocol as she did not have a school place for September 2019.
15. I asked the Council to explain the action taken to find a school place for Y when Ms X advised it in July 2019 that she didn’t have a school place. The Council has said that at this time Ms X’s daughter was on the school roll in a different council area. Children are offered a place by the Council once its pupil tracking checks highlight and confirm they are not in receipt of education. Pupil tracking confirmed Ms X’s daughter was removed from the school roll in September 2019 and she was offered a school place on 18 September 2019.
16. Schools are responsible for notifying the Council of the outcome of in year applications. The Council has said that when the data is received it checks if pupils are receiving an education elsewhere. If not, the Council will offer a place at the nearest school with a vacancy.

My assessment

17. On balance, I consider the Council is at fault for not identifying a school place for Y to attend when the school term started in September 2019. Ms X notified the Council in February 2019 that Y was attending a middle school and required a school place in year nine in September 2019. The Council should have been aware through its own checks following the outcome of Ms X’s in year applications that Y would be finishing middle school in July 2019 and she did not have a school place in September 2019. Ms X also notified the Council in mid July that Y did not have a school place in September. So, the Council was on notice that Y did not have a school place for September 2019.
18. The Council has said it would not have placed Y in July 2019 as she was a year eight child in another area at that time. It could not hold a place open for her over the summer holidays as that is not in accordance with its in year admission procedures. The Council has also said it could not know what places would be available in year nine for September 2019 as in year applications are made direct to the schools.
19. The Council has a duty to provide a school place when a child does not have one and it was on notice that Y would not have a school place in September. It would have been good administrative practice to have taken active steps to identify a school place for Y, such as checking if schools had or were likely to have places in September 2019. By leaving this process to the start of the new school year the Council risked a gap in educational provision for Y. The Council also then took two and a half weeks to identify a school place. I note the Council’s position that two weeks was enough time for schools to confirm vacancies but the Council should have been actively checking as Y did not have a school place at this point. So, I remain of the view the Council’s failure to identify a school place for Y for the start of the school year is fault.
20. As a result, the Council delayed in offering a school place for Y. But, on balance, I do not consider the delay caused significant injustice to Ms X and Y as Ms X refused the school place offered. The Council cannot retrospectively say what schools had vacancies in July 2019 and early September 2019. But Ms X’s preferred schools did not have vacancies and the Council offered a place at the nearest school which she declined. So, I cannot conclude the outcome would have been any different.
21. Ms X considers the Council should have applied the Fair Access Protocol in February 2019 when she enquired about school places and provided more assistance to her between February and July 2019. The Council is not at fault as it would not have applied the Fair Access Protocol between February and July 2019 as Y had a school place in another area. The in year application process requires applicants to apply direct to schools. The Council advised Ms X of the schools with vacancies and there was no obligation for the Council to do more than this between February and July 2019.
22. I cannot know if the Council should have applied the Fair Access Protocol between 16 July 2019 when Ms X advised Y did not have a school place for September 2019 and the start of the school year. The Fair Access Protocol would only have been applied if there were no school places available. The Council cannot retrospectively say if schools had vacancies. However, even if the Council is at fault, it did not cause significant injustice to Ms X. This is because the Council offered a school place for Y on 18 September 2019 which she declined. So, Y has not lost educational provision as a direct consequence of fault by the Council.
23. The Council should review its procedures to ensure officers do not delay in taking active steps to identify a school place when a child has not been able to secure a school place through an in year application. I welcome the Council’s agreement that its in year application processes can and should be reviewed.

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Final decision

24. The Council is at fault as it delayed in taking active steps to find a school place for Ms X’s daughter. However, the fault by the Council did not cause significant injustice to Ms X or to Y as Ms X declined the school place offered by the Council. I have therefore competed my investigation.

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Parts of the complaint that I did not investigate

25. I have not investigated Ms X’s complaints about how the Council administered appeals for the two schools referred to in paragraph 10. Both schools are academies and they are their own admission authorities so have overall responsibility for their admissions and how appeals are conducted. The Ombudsman does not have jurisdiction to investigate complaints about academies. The Council administered the appeals but it did so on behalf of the academies. The Council was not delivering an administrative function of the Council so I cannot investigate how the Council dealt with the appeals.

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Investigator's decision on behalf of the Ombudsman