Summary: the Council failed to properly consider Ms B’s daughter’s case under its fair access protocol and delayed putting in place education provision for her daughter. That meant Ms B’s daughter missed out on alternative education provision for around one month longer than she should have and led to Ms B going to time and trouble to pursue her complaint. An apology, payment to Ms B for her time and trouble and payment to reflect the lost education for her daughter, along with procedural changes, is satisfactory remedy for the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained about the way the Council dealt with her daughter’s education. Ms B complained the Council:
• delayed considering her daughter’s case under its fair access protocol;
• failed to consider her application to the medical/social panel properly;
• failed to review the decision by the medical/social panel when she identified inaccuracies in the information provided by her daughter’s allocated school;
• failed to properly consider her appeal; and
• failed to put in place education for her daughter when the Council knew she could not return to her allocated school.

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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. 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

4. As part of the investigation, I have:
• considered the complaint and Ms B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
5. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. 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.

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What I found

Background

7. In 2019 Ms B’s daughter was attending her allocated school. However, due to medical issues her attendance was poor. The Council’s attendance advisory officer carried out a joint visit with a member of the school staff to Ms B and her daughter on 3 July 2019. The Council wrote to Ms B following that meeting to ask her to provide medical evidence to support her daughter’s absences and stressed the importance of arranging a meeting at the school to discuss a phased return. The letter told Ms B the Council would check her daughter’s attendance and if there were any further unauthorised absences or late marks she would be at risk of referral to the attendance advisory service which could result in a fine or legal action. Ms B later provided a letter from her daughter’s GP approving her daughter’s absence from school between May and September 2019.
8. On 17 July 2019 Ms B put in an application for her daughter to go to a new school, which I will refer to as School B. On 26 July the Council told Ms B it could not offer her daughter a place at School B as it was full. Ms B appealed.
9. In August a clinical psychologist made a referral to the Council’s early help service. The psychologist also made a referral to child and adolescent mental health services. Ms B accepted early help support.
10. In August the complainant put forward her reasons for seeking admission for her daughter to School B. The Council referred that to its medical/social panel for consideration.
11. In early September the allocated school provided the Council with a report which did not highlight any concerns about meeting Ms B’s daughter’s needs. The school did not recommend referral to the fair access panel.
12. The Council’s medical/social admissions panel considered Ms B’s request for admission to School B. Panel considered the evidence Ms B provided but decided any school could meet her daughter’s needs. It therefore did not award extra priority. Ms B asked to appeal that decision and told the Council the allocated school had not given the panel correct information. The Council told Ms B there was no appeal process for the medical/social decision but she could use her reasons for seeking a place at School B in her admissions appeal hearing.
13. In September Ms B asked for a fair access panel to review the decision. The Council told Ms B the fair access panel could only consider applications when there was a place available at the chosen school and the school Ms B had chosen was full. The Council told Ms B the school had accepted approving her daughter’s absence until the admissions appeal hearing. The Council also suggested alternative schools with places.
14. The admission appeal panel considered the case on 25 September but did not uphold the appeal.
15. Early help sought to discuss with the allocated school the alternative of funding tuition for Ms B’s daughter. The school did not agree but agreed to complete a referral for the fair access panel. The school completed that referral on 29 October.
16. On 6 November the Council began providing interim tuition which it at first agreed until Christmas 2019 to enable Ms B to provide further medical information. That was for 15 hours a week to cover Maths, English and Science.
17. The fair access panel considered the case in November but decided Ms B’s daughter did not qualify. The Council says that was the wrong decision and the correct decision should have been that although Ms B’s daughter met the criteria a move to the School B would not be in her best interests given she was in year 11 and normal practice would be to provide alternative education. Since then the Council has increased the tuition to 17 hours per week.

The Council’s response to the complaint

18. The Council accepts it had conflicting information from school, family and other professionals. The Council says better information sharing between partner agencies could have resolved some issues quicker and more straightforwardly. The Council says it is committed to learning from that and improving information sharing to prevent families having to raise a complaint to get their concerns heard and resolved. The Council therefore proposed:
• holding a learning seminar with staff from inclusions, admissions, advisory attendance and early help services. That would examine how the Council can support families in similar situations more effectively when staff across different parts of the service are working with complex cases;
• dissemination of information about the various functions and referral pathways to access support from admissions and inclusion/attendance services so officers are well informed and able to advise parents about the most suitable routes and how to access available sources of information and support;
• further rollout of the education case management IT system for use across the inclusion service to ease access to up-to-date information and improve communication between services working with the same family;
• review the process for seeking consent from parents and young people to request and share information with other agencies when gathering evidence for a fair access protocol case and for social and medical panel cases;
• updating information published about the process for consideration under medical or social care grounds for in year admissions;
• reinforcing the need for staff to be clear about their roles and accountabilities and giving clear messages to families about who is following up on actions through team and service meetings;
• apology for the anxiety and stress caused to Ms B and her daughter; and
• payment of £300 to Ms B for her time and trouble and £500 for her to use to support her daughter's education to reflect the education she missed before the Council put tuition into place.

The Council’s fair access protocol

19. The fair access protocol says all schools must take part to ensure children who are often vulnerable are placed in a school as quickly as possible. It says where necessary this may require admitting a child to a school that is already full.
20. The purpose of the fair access protocol is to consider the individual educational needs of children with a history of behaviour that challenges and/or who are deemed vulnerable.
21. For fairness and equity schools may be required to admit children above the published admissions number where they are already full. Schools may not cite oversubscription as a reason to not admit the child through the fair access protocol. However, schools will only be required to admit over their number in exceptional circumstances and where it is deemed it would not prejudice the provision of efficient education and use of resources.
22. The protocol lists the categories of children considered as having behaviour that challenges and/or are vulnerable which includes:
• children withdrawn from school by their family following an irretrievable breakdown in relationships between the school and family;
• children who are or are at risk of missing education;
• children known to other agencies; and
• children with disabilities and/or medical conditions.
23. Panel will consider any concerns expressed by the parent such as about the breakdown in the relationship between the school and family.

Statutory guidance

24. The Government has issued ‘Ensuring a good education for children who cannot attend school because of health needs,’ which is statutory guidance. This makes clear councils are responsible for arranging suitable full-time education for permanently excluded pupils, and for other children who, because of illness or other reasons, would not receive suitable education without such provision.
25. The law does not define full-time education but children with health needs should have provision which is equivalent to the education they would receive in school. If they receive one-to-one tuition the hours of face-to-face provision could be fewer as the provision is more concentrated.
26. Where they have identified alternative provision is required, councils should ensure it is arranged as quickly as possible and meets the needs of the child.
27. The law does not specify the point during a child’s illness when it becomes the council’s responsibility to secure suitable full-time education for the child. Schools usually provide support to children who are absent from school because of illness for a shorter period.
28. More generally, councils should be ready to take responsibility for any child whose illness will prevent them from attending school for 15 or more school days, either in one absence or over the course of a school year, and where suitable education is not otherwise being arranged.
29. There is no absolute legal deadline by which councils must have started to provide education for children with additional health needs. Councils should, however, arrange provision as soon as it is clear an absence will last more than 15 days and it should do so at the latest by the sixth day of the absence, aiming to do so by the first day of absence.

Council policy on education for children and young people with health needs

30. The policy applies to all children and young people of compulsory school age who, because of illness, cannot attend school for health reasons for 15 days or more.
31. When pupils are too ill to attend school the school should establish, where possible, the amount of time the pupil may be absent and identify ways in which the school can support the pupil in the short term such as providing work to be done at home in the first instance. It says the school will make a referral to the Council as soon as it becomes aware a child is likely to be or has been absent for 15 consecutive or cumulative school days.
32. The policy says if there is evidence of medical needs but no confirmation a young person cannot access school the local authority may decide to put in tuition for a short period to give time for parents to get the evidence needed.

Analysis

33. Ms B says the Council should have referred her daughter’s case to the fair access panel in July 2019. Ms B points out when she completed a school admissions application for School B she made clear her daughter’ medical difficulties and why she could not return to her allocated school. Ms B says that should have been enough for the Council to refer the matter to the fair access panel. The evidence I have seen satisfies me the Council did not receive Ms B’s request for a transfer for her daughter until after the final fair access panel for the academic year 2018/19. Arguably the Council should have referred the case earlier following the beginning of the new school year, particularly given the involvement of other services with Ms B and her daughter. However, for the reasons I will set out in the next two paragraphs, I do not consider earlier referral to the fair access panel would have resulted in a different outcome. I therefore do not intend to pursue the point further.
34. I am satisfied the Council referred the case to the next available panel once it received a referral from the school for consideration under the fair access protocol. I am concerned though the fair access panel decided Ms B’s daughter did not qualify under the protocol. I set out in paragraph 22 a selection of the categories of children considered relevant under the fair access protocol. The Council agrees Ms B’s daughter qualifies under more than one of those categories and the panel’s decision to treat her as not qualifying was wrong. That is fault. The Council says panel should have decided Ms B’s daughter met the criteria for consideration of an allocated place but that such a move was not in her best interests. That is on the basis Ms B’s daughter was seeking a transferring in year 11 which could be disruptive given School B may not follow the same curriculum or teach the curriculum in the same order as the allocated school which would prejudice her GCSE progress. I understand why the Council would take that view and I recognise this is a matter panel would have had to consider. However, panel did not go on to consider whether it should allocate a place at School B for Ms B’s daughter and it therefore did not consider whether a move was in Ms B’s daughter’s best interests.
35. Ms B suggests panel should have awarded her daughter a place at School B because the only issue was that it was full. Ms B says under the fair access protocol the Council could not have refused the case because of overcrowding. However, that is not accurate. As I set out in paragraph 21, while schools cannot cite oversubscription as a reason for not admitting a child under the fair access protocol they will only be required to admit over the number in exceptional circumstances and where it is decided it would not prejudice the provision of efficient education and use of resources. So, even if the panel had accepted Ms B’s daughter as qualifying, as it should have done, that does not mean the outcome would have been different. I consider it likely, on the balance of probability, panel would have decided School B should not admit Ms B’s daughter as it would prejudice the provision of efficient education and use of resources for other children given this is what the admissions appeal panel decided. So, while it was fault not to accept Ms B’s daughter as qualifying under the fair access protocol I do not consider that fault resulted in any specific injustice to Ms B or her daughter.
36. Ms B says the Council failed to consider the evidence she provided at the appeal. Ms B says her daughter’s existing school provided inaccurate information about whether bullying had taken place and panel did not take that information into account.
37. Two panels considered Ms B’s daughter’s case. The first was the medical/social panel. All that panel considered was whether Ms B’s daughter should receive extra priority on School B’s waiting list. Ms B appears to believe panel declined the application because the allocated school did not have details of Ms B’s daughter’s medical situation or the claim that other students were bullying her. However, the evidence I have seen satisfies me panel declined the application because it did not consider it had evidence School B was the only suitable school on medical grounds. There is no evidence the medical/social panel relied on any information the allocated school provided about alleged bullying. I appreciate Ms B disagrees with the decision the medical/social panel reached. However, as I have found no evidence of fault in how it reached its decision I have no grounds to criticise it.
38. In reaching that view I am aware Ms B says when she provided information to the Council to show the allocated school had given the panel wrong information it refused to review her case. As I said in the previous paragraph though, panel was considering only whether Ms B’s daughter had medical or social grounds to warrant extra priority for admission to School B. Panel was not considering the information provided by the allocated school and whether it was accurate. I have seen no evidence to suggest the information provided by the allocated school had any influence on panel’s decision. In those circumstances I see no reason the Council would have had to review that decision which, in any case, does not carry with it a right of appeal.
39. The second panel that considered Ms B’s daughter’s case is the appeal panel for the in year admission. I have seen no evidence to suggest that appeal panel relied on inaccurate information provided by the allocated school. Nor do I consider it relevant for that appeal panel to consider whether Ms B’s daughter had experienced bullying at her previous school. The role of the appeal panel was to consider Ms B’s case for admission of her daughter to School B rather than to consider whether she could return to her allocated school. Having considered the documentary evidence I am satisfied the appeal panel received information from Ms B which included medical information. I am also satisfied the appeal panel received information from the admissions authority about why the school could not admit further pupils. The evidence also satisfies me Ms B made her points verbally at the appeal hearing.
40. The panel then had to follow a two-stage process. In the first stage the panel had to decide whether the admissions authority’s arrangements complied with the relevant law and whether it considered admitting a further pupil would cause prejudice to the education of the existing pupils. I am satisfied the panel received information from the admissions authority about that point and approached this part of the appeal hearing properly. I am satisfied panel properly explained why it considered both the admission arrangements complied with the relevant law and that admitting a further pupil would cause prejudice.
41. I am also satisfied when considering Ms B’s reasons for seeking admission for her daughter the appeal panel properly considered the case she put forward. I note in particular the decision letter following the appeal went into detail about the various arguments Ms B put forward in support of admission for her daughter. That letter explained the panel’s decision that when balancing the points she had raised against the prejudice to the school if an extra child were admitted panel did not consider there was an overwhelming reason to override the Council’s decision. As I am satisfied panel reached that decision after properly considering both the school’s case and Ms B’s arguments I have no grounds to criticise it.
42. Ms B says the Council failed to put in place education for her daughter when it knew she could not return to her allocated school. As I set out in paragraph 28, once a child has been out of school for 15 days or more the Council should ensure provision of education to the child. In this case though I am not satisfied the Council had clear medical evidence Ms B’s daughter could not return to her allocated school until September 2019. By that point Ms B had applied for admission for her daughter to School B and was waiting for an appeal. On balance I do not criticise the Council for failing to put alternative education in place until the appeal process completed. I take that view because the medical evidence showed Ms B’s daughter could attend school but not the school allocated to her. So, if Ms B’s appeal for School B had succeeded the Council would not have needed to put in alternative education provision.
43. I am satisfied though by the end of September 2019 the Council had more detail about Ms B’s daughter’s medical conditions, her inability to return to her allocated school and the fact she had not secured a place at School B. I would have expected the Council to consider putting in place tuition at that point. Failure to do that until November 2019 is fault. The Council recognises if there had been better information sharing between partner agencies it could have resolved the situation earlier. I consider it likely if the Council had considered the case properly when Ms B’s admissions appeal failed at the end of September 2019 it would likely have recognised the need to put in place alternative provision at least by the beginning of October 2019. I therefore consider the Council’s failure to properly consider the case following the admissions appeal led to Ms B’s daughter missing out on an extra month of education. That is significant as Ms B’s daughter is in her GCSE year. The Council has offered £500 for Ms B to use to support her daughter’s education. Taking into account the fact Ms B’s daughter received no education at all until November 2019 and was in her GCSE year I consider that a suitable amount and in line with what the Ombudsman normally recommends. I also welcome the Council’s offer of £300 to Ms B to reflect the time and trouble she had to go to in pursuing her complaint. I also consider that a suitable remedy.

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Agreed action

44. Within one month of my decision the Council should:
• apologise to Ms B and her daughter for the faults identified in this statement;
• pay Ms B £300 to reflect the time and trouble she had to go to pursuing her complaint; and
• pay Ms B an extra £500 for her to use for her daughter’s educational benefit.
45. Within three months of my decision the Council should provide evidence it has:
• held a learning seminar with staff from inclusions, admissions, advisory attendance and early help services to examine how in future the Council can support families in similar situations more effectively when staff across different parts of the service are working with complex cases. That should include discussion about when to put in place alternative education provision and when to refer to the fair access panel;
• disseminated information about the various functions and referral pathways to access support from admissions and inclusion/attendance services so officers are well informed and able to advise parents about the most appropriate routes and how to access available sources of information and support;
• rolled out the education case management IT system for use across the inclusion service to facilitate access to up-to-date information and improve communication between services working with the same family;
• reviewed the process for seeking consent from parents and young people to request and share information with other agencies when gathering evidence for a fair access protocol case and for social and medical panel cases;
• updated information published about the process for consideration under medical or social care grounds for in year admissions; and
• reinforced the need for staff to be clear about their roles and accountabilities and giving clear messages to families about who is following up on actions through team and service meetings.

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Final decision

46. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman