Summary: A parent complained that the Council had failed to make sufficient reasonable adjustments in view of her son’s special educational needs, when he took the Kent Test for admission to grammar school. However the Ombudsman will not investigate this matter. This is because the injustice due to any fault by the Council is unknown at this stage, and the parent will have a right of appeal to an independent appeal panel about any refusal of a school place.

The complaint

1. The complainant, who I shall call Mrs X, complained that the Council had not made sufficient reasonable adjustments for her son (‘Y’) in view of his special educational needs (SEN), when he sat the Kent Test for entry to grammar school. In particular Mrs X complained the Council’s decision not to allow Y extra time in the Test went against the professional advice she provided. Mrs X was also unhappy with the Council’s process for deciding what special arrangements a child needs for sitting the Test, and the lack of an appeal procedure in this respect.

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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’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

3. The law says we normally cannot investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)

How I considered this complaint

4. I considered the information Mrs X provided with her complaint. I also gave Mrs X an opportunity to comment on a draft of this decision before I reached a final view in her case.

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What I found

5. Y is due to start at secondary school next September. Mrs X wants Y to attend a grammar school.
6. Applicants for most of the grammar schools in the Council’s area are required to take the Kent Test. This is an examination used to assess whether a child is suitable for a grammar school education.
7. Parents of children with SEN can apply to the Council for particular access arrangements when taking the Kent Test. Decisions on these applications are made by panels of professional officers.
8. Y has SEN, and Mrs X applied for certain access arrangements for him. In particular Mrs X provided evidence from a range of professionals involved in Y’s case which recommended he should have extra time in the Test.
9. The panel in Y’s case agreed to several special arrangements in view of his SEN. But it did not agree he should have more time to take the Test.
10. Y subsequently took the Test. But his score did not meet the threshold to be considered as suitable for a grammar school.
11. However Y’s school then referred his case to the Council’s Head Teacher Assessment Panel for review. The Panel considers if a referred child who has failed the Test is nevertheless of grammar school ability, based on evidence of their schoolwork. The Panel decided Y was of grammar school standard, which meant Mrs X’s application for a grammar school place could be considered as if he had passed the Test.
12. But Mrs X complained to the Council about the initial Special Arrangements Panel’s decision as she felt this had unfairly disadvantaged Y in the Test and resulted in him getting an artificially low Test score.

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Analysis

13. However I have decided that we should not investigate Mrs X’s complaint.
14. First, I am not necessarily convinced we are likely to find fault with the Council because of the way it assessed Y’s need for special arrangements in the Test. But even if there was some fault in this respect, I do not see we could say that Mrs X has suffered a significant injustice at this point to warrant an investigation.
15. In particular I note that notwithstanding his Test score, Y was subsequently deemed to be suitable for a grammar school education by the Head Teacher Assessment Panel, and this means Mrs X’s applications for grammar schools can proceed as if he had met the Test threshold.
16. Further, the applications for grammar school places will not be decided until March 2020. So at this stage we do not know if Mrs X’s applications for her preferred grammar schools will succeed or fail. Therefore I do not see we could say at the moment what, if any, injustice Mrs X and Y have suffered and, in particular, what influence Y’s Test score will have on the outcome of the applications.
17. But the main reason I do not see we should pursue Mrs X’s complaint is that she will ultimately have a right of appeal to an independent appeal panel about any refusals of admission to her preferred schools. This is because education appeal panels are statutory tribunals, and the law says we normally cannot investigate complaints where someone has a right of appeal to a statutory tribunal, unless it is not reasonable to expect the person to go to appeal.
18. One of the roles of an appeal panel is to consider if a school’s or the Council’s admission arrangements have been properly applied in the child’s case. So it seems to me any issue about the fairness of the Kent Test arrangements in Y’s case is a matter an appeal panel could deal with.
19. In the circumstances I see no reason why Mrs X should not be expected to use her right of appeal to an education appeal panel in Y’s case if this proves necessary.

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Final decision

20. The Ombudsman will not investigate Mrs X’s complaint that the Council failed to make sufficient special arrangements to aid her son in taking the Kent Test for grammar school admission in view of his special educational needs. This is because the injustice caused by any fault in this respect is unknown at the moment and, anyway, Mrs X will ultimately have a right of appeal to an education appeal panel regarding any decision to refuse her son a place at one of her preferred schools.

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Investigator's decision on behalf of the Ombudsman