Summary: the Council delayed telling Miss B it had withdrawn a place for her son at his allocated school until the start of term and delayed telling her about her right of appeal. This caused a delay in the appeal. An apology, reminder to officers and introduction of a process to follow up with school applicants where residency cannot be confirmed is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• delayed telling her it had withdrawn a place for her son (whom I shall refer to as C) at his allocated school until the start of term; and
• delayed telling her about her right of appeal against that decision.
2. Miss B says fault by the Council left her son without education for six months and caused her significant distress as she was turned away on the first day of school.

Back to top

The Ombudsman’s role and powers

3. 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)
4. The law says we cannot normally 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)
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. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Chronology of the main events

8. C was due to start school in September 2019. Miss B made an on-time application to the Council for a school place.
9. On national offer day in April the Council offered a place for C at Miss B's second preference school ('the school'), and she accepted the offer.
10. The Council carried out a residency check at the address Miss B had put on her application form at the end of May 2019. The officer that visited noted major building work in progress at the property with nobody resident. The officer left a card at the address but I do not have any details about what that card said. Miss B says although she had access to the property the card was not passed onto her.
11. Miss B says she contacted the Council in May 2019 to tell it she was temporarily moving into a new property while her landlord undertook works at her home. There is no evidence of that contact.
12. On 15 August 2019 the school told the Council Miss B had provided a new address in a different borough. The Council emailed Miss B on 16 August to tell her about the findings from the officer’s visit in May 2019 and asked for three proofs of address within the next 10 days or it would withdraw the offer of a place at the school. Miss B provided some documents on 29 August which included a final water bill.
13. The school contacted Miss B on 4 September to advise her not to bring her son into school for the induction the following day. The school explained the Council were querying the address. Miss B says she told the school unless the Council told her not to attend she would still bring her son in. That is not recorded in the notes the school made of the telephone call.
14. Miss B took her son to the school on 5 September. The school would not allow her son in and after contacting the Council it told Miss B the Council had withdrawn the offer as she did not live at the address provided on her application form.
15. The Council sent Miss B an email on 5 September, telling her it had withdrawn the place for her son at the school as a residency officer had identified Miss B was not living at the address and she had later provided a new address to the school. The Council told Miss B the address given on the admissions application must be the one where the child normally lives and therefore the Council had withdrawn the place.
16. A legal representative for Miss B contacted the Council in September. The Council told the legal representative it could not respond to its queries without Miss B’s consent. The Council told the legal representative it had the right to withdraw a school place if it had found out an applicant was not resident at the address used on the application.
17. Miss B put in a complaint which the Council responded to in October 2019. The Council upheld its decision to withdraw the place. The Council accepted though it should have told Miss B about its decision to withdraw the place as soon as it received the closing balance water bill she provided on 29 August. The Council apologised for not doing that.
18. Following further communications from Miss B the Council wrote to her on 6 November to reiterate its view the information she had provided to support where she was living was misleading as she was not living in the property at the time. The Council told Miss B how to appeal the decision to withdraw the place.
19. Miss B put in an appeal in January 2020 which the appeal panel considered in February 2020. The panel upheld the appeal and C began attending the school at the start of March 2020.

Analysis

20. Miss B is concerned about the Council withdrawing a place for her son at her chosen school. The decision to withdraw the place is not a matter the Ombudsman can investigate. That is because the withdrawal of the place carried with it a right of appeal. Miss B has now exercised her right of appeal and secured a place at the school. So, the Ombudsman cannot consider whether the Council was right to withdraw the place. Nor can the Ombudsman make any recommendation for costs Miss B may have paid to get representation at the appeal hearing as those matters fall outside his jurisdiction. My investigation will therefore concentrate on Miss B’s concern the Council delayed withdrawing the place for her child and in telling her about her right of appeal.
21. The evidence I have seen satisfies me the Council delayed telling Miss B it had withdrawn the place for her child. There is no evidence the Council told Miss B it had withdrawn the place until the day she attended for the induction day in September 2019. I consider the Council at fault here. That is because the Council had identified an issue with whether Miss B was living at the address provided on her application form when a residency officer visited on 26 May 2019. There is no evidence the Council tried to follow up with Miss B following that visit until the school contacted it on 15 August 2019 to tell it Miss B had provided a different address which was out of area. I consider if the Council had followed up with Miss B between May and August 2019 it would likely have identified the change of address and withdrawn the place at an earlier stage. While I appreciate Miss B believes the Council should not have withdrawn the place I have already advised this is not a matter the Ombudsman can comment on.
22. The Council says the problem occurred because Miss B did not tell it about her change of address. The Council says if she had done so the Council would have withdrawn the place earlier. The implication is it was Miss B’s failure to report her change of address to the Council which resulted in her injustice. I accept the Council’s point communications with those allocated school places make clear they need to tell the Council when they change address. Those communications also make clear the Council may withdraw a school place if verification of an address is not received or is not considered acceptable. Miss B says she told the Council about her temporary change of address in May 2019. Having considered the documentary evidence though, there is no evidence of contact with the Council by Miss B to report a change of address at any point before the start of the new school year. The key point for me though is the Council already knew about an issue with the address in May 2019. The Council also identified that when asking Miss B for evidence to support her address in August 2019 as she provided a final water bill. The Council accepts it should have withdrawn the offer of the place at that point, which was 29 August 2019. I consider failure to do that and to follow up on the residency check carried out in May 2019 is fault.
23. I now have to go on to consider what injustice Miss B has suffered as a result of the delay withdrawing the school place. Miss B says she was caused significant distress at being turned away at the school when she arrived with her son on induction day. However, the documentary evidence shows the school had told Miss B the day before induction day not to attend. Miss B says she was clear she would still attend unless the Council told her not to. That was Miss B’s decision. However, the fact she had been told not to attend and chose not to follow that advice means I cannot say fault by the Council caused Miss B the injustice of being turned away on induction day. In those circumstances I consider the Council’s apology for the delay withdrawing the school place a satisfactory remedy.
24. I am concerned about the delay telling Miss B about her right of appeal. When the Council confirmed on the first day of term by email it was withdrawing the place it did not tell Miss B she had a right to appeal that decision. There is no evidence the Council told Miss B that until November 2019, despite responding to Miss B’s letter of complaint in October 2019. That delay is fault. In reaching that view I have considered the Council’s claim it includes information about the appeal process on its website and in paperwork issued to parents when it allocated school places in April 2019. I see no reason Miss B would have known she had a right of appeal against the withdrawal of a place though given there is no evidence the Council told her about that when it withdrew the place. In any event, paragraph 2.12 of the school admissions code requires the Council to reconsider an application when a place is withdrawn and issue a letter providing a right of appeal if it decides not to award a place. The Council failed to follow that part of the code here. That is fault and delayed Miss B’s appeal.
25. I now have to go on to consider what injustice Miss B has suffered because of the delay telling her about her right of appeal. I could not say fault by the Council meant C missed six months of education as Miss B claims. That is because it is not my role to comment on whether the Council’s decision to withdraw the place was right as Miss B put in an appeal. In any event, Miss B could have pursued an alternative school for her son in the area she was living in at that point and chose not to do so. I therefore could not say fault by the Council meant C missed out on receiving any education between September 2019 and the end of February 2020. Nor could I say fault by the Council was solely responsible for the delay considering the appeal given Miss B did not put the appeal in until January 2020, despite the Council telling her about her right of appeal in November 2019. In those circumstances I consider an apology for the delay telling Miss B about her right of appeal a satisfactory remedy.

Back to top

Agreed action

26. Within one month of my decision the Council should:
• apologise to Miss B for the delay telling her about her right of appeal; and
• remind officers dealing with admissions cases of the need to follow the school admissions code when withdrawing a place to ensure applicants are notified of their right of appeal;
• ensure there is a process in place for those cases where a residency check raises questions about whether the child lives at the address declared in the application. That process should provide guidance on what action should be taken, when and by whom when contact with the applicant has not elicited a response.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman