Summary: The complainant alleged that the Council failed to act properly when her daughter was out of education. We have found some fault by the Council in that it failed to provide alternative education and it failed to ensure its fair access panel decisions are properly recorded. This has caused an injustice to the complainant and to her daughter. We have recommended actions to remedy this, which the Council has accepted. Therefore, we are closing the complaint.

The complaint

1. The complainant, who I refer to as Miss X, complained that the Council had not placed her daughter (B) in a suitable secondary school. In particular, Miss X complained that:
1. the Council failed to tell the complainant about where B was on the waiting list for her preferred secondary school (School C) and there was no explanation why other pupils were admitted to School C after the start of term in September 2021;
2. failed to consider properly B’s case at the fair access protocol Panel or provide reasons why her request for School C was refused, besides saying that it was oversubscribed;
3. there has been no contact from the school allocated to B at the fair access Panel;
4. there has been little help from the home education team or follow up in respect of Miss X educating B at home.
2. Miss X says that the Council’s actions have caused immense distress and frustration to her, and her family, and B has missed the first year of education at secondary school (Year 7) and has continued not to receive suitable education, even though Miss X is trying to educate her at home.

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What I have investigated

3. I have investigated Miss X’s complaint since September 2021 to the present day. Matters, which I have not investigated, are set out in the last paragraph of this statement.

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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. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b))
6. 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)
7. 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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How I considered this complaint

8. I spoke to Miss X on the telephone and made enquiries of the Council. I have considered the Council’s response and discussed this with Miss X. I issued a draft decision statement to Miss X and to the Council, and I have taken into account their further responses when reaching my final decision.

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What I found

Legal and administrative background

School placements

9. Councils have a duty to identify children not receiving education. Parents apply for a preferred school and can appeal to an Admissions Appeal Panel if a place is refused.
10. Fair Access Protocol sits outside the arrangements for the coordination of school places and is triggered when a pupil has not secured a school place through the admission arrangements. Fair Access Protocols ensure that all schools, including an Academy, take a fair and balanced approach when admitting pupils. Schools will be expected to admit pupils above their published admission number if the school is already full.
11. The School Admissions Code requires every council to have a Fair Access Protocol. The government has issued non-statutory guidance. There is no duty on Panels to comply with parents’ preferred school when allocating places, but it is expected that parents’ wishes are taken into account. Eligibility for a Fair Access Protocol does not limit a parent’s right to make an in-year application to any school for their child.
12. Where a pupil is to be considered under the Fair Access Protocol, a school must be allocated within twenty school days. A council has the power to direct a governing body of a council-controlled school to admit a pupil, even if full.
13. Bury Council says its in-year fair access protocol is a local protocol agreed in consultation with all its secondary schools’ Heads. A representative from each school attends a meeting (the Panel) along with four council representatives. Panels meet half-termly. Members are shown the application form and any additional information from the parent. The purpose of the Panel is to ensure hard to place pupils are distributed evenly among the area’s schools and no one school takes a disproportionate number of pupils. The Council says that there is no need to take minutes of the meeting because all decisions are recorded and distributed to all the Heads after the meeting.
14. The Council’s policy says, among other things, that the aim of the protocol is to be equitable and transparent. Pupils placed under the protocol will be given a target start date no later than ten school days after the allocated school has agreed the placement.
15. Due consideration will be given to ensuring that appropriate ‘wrap around’ support is provided to the child to ensuring increased success of the placement. A risk assessment should be completed to identify possible assessed needs to identify the most appropriate placement.

Alternative provision

16. Councils must make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. (Education Act 1996 section 19 (1))
17. “Otherwise” is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling. In all cases councils must consider the individual circumstances of each individual child and be able to demonstrate how they made their decisions. They must take account of all available evidence and record the reasons for their decisions.
18. Councils should provide suitable full-time education (or as much education as the child’s health condition allows) as soon as it is clear the child will be away from school for 15 days or more and make every effort to minimise the disruption to a child’s education.
19. The Children, Schools and Families Act 2010 clarified that this should be full-time or part-time education if considered in the child’s best interests.
20. Government statutory guidance of January 2013 ‘Ensuring a good education for children who cannot attend school because of health needs’ states that councils are responsible for arranging suitable full-time education for children who because of illness would not receive education. This applies whether the child is on the roll of a school and whatever the type of school the child attends.

The Human Rights Act

21. The Human Rights Act 1998 sets out the fundamental rights and freedoms to which everyone in the UK is entitled, including education.
22. The Act requires all councils - and other bodies carrying out public functions - to respect and protect individuals’ rights.
23. Our remit does not extend to making decisions on whether or not a council has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a council has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

Home education

24. Parents have a right to educate their children at home. Parents take on the financial responsibility for any costs incurred, including examination costs. In 2019, the Department of Education (DfE) issued guidance to reflect the growing concern about children being educated at home who may not be receiving a suitable education or who may be at risk of harm. Councils do not regulate home education but should make enquiries about what education is being provided. There are no legal specific requirements for the content of the home education.

Events of this complaint

25. Miss X applied for a school place for B at School C under the normal arrangements for admission to secondary school. Miss X was refused a place on grounds that the school was over-subscribed, and she did not meet the distance criteria. Miss X was offered a place for B at her third-choice school, which she did not accept.
26. In May 2021 Miss X appealed to the independent Admissions Appeal Panel about the refusal of a place at School C. The appeal was unsuccessful on the grounds that her reasons for wanting a place at the school did not outweigh the adverse impact a further admission would have on the efficiency of education at School C. I am not looking at any complaints about this independent Admission Appeal Panel for the reasons explained in the last paragraph.
27. Miss X told the Council that B would not be attending the third-choice school. This is because B suffers from anxiety and Miss X considered that she would only cope in a new school with her friends from primary school, who had places at School C.
28. In September 2021, B did not start at any secondary school and was at home. B’s name was put on the waiting list for a place at School C and remained there between September to December 2021. The Council tells me that the waiting list is in criteria order and then in distance order under each criterion. B was number 55 under criteria 4. The Council says that, if a parent asks what position their child is on the waiting list, they would be told. Miss X says she was not told even when she asked.
29. The Council advised Miss X to make an in-year application to a school. Miss X said that she was home educating. In November, the Council decided that the education was satisfactory because Miss X had purchased some suitable key stage two books and Miss X had registered with an online provider of educational resources.
30. In February 2022, the Council decided that the education provided at home was unsatisfactory and Miss X also said that B wanted to be at school. It was decided to review the situation in two months’ time.
31. The Council decided that B’s case met the eligibility criteria for consideration by its fair access protocol Panel. Miss X wrote a detailed letter explaining why it was so important for B to attend School C. She explained that she and her family were due to be made homeless because the landlord was ending the tenancy. Miss X said that B would need the support of her friends to cope with this unsettling situation. Miss X explained that B was awaiting an assessment by the Child and Adolescent Mental Health Services with suspected attention deficient hyper disorder (ADHD).
32. At the end of April 2022, the fair access protocol Panel held a virtual meeting. The Council emailed Miss X later that day to say that the Panel had taken account of her letter, and admission application, but School C had explained how over subscribed it was and therefore it could not allocate a place for B there because of the difficulties another admission would cause. The Panel went on to say it had allocated a place at another school, School D, and that School D would be in contact about an induction meeting. The Council says that School D invited Miss X to an induction meeting, but she declined the invitation. Miss X says that she had no such invitation.
33. In May, there should have been a further review of the home schooling. The Council says that Miss X did not attend, nor at the appointment made for the following month. However, Miss X telephoned the Council to say she was still registered with the online learning resource. In view of her impending homelessness, the Council decided to contact Miss X again in September to discuss the home schooling.
34. The Council tells me that the fair access protocol Panel admitted three pupils to School C. These three are into different year groups to B, so are not comparable.
35. B remained without formal education during her first year of secondary school (Year 7). Miss X applied again to School C for a place at Year 8. This was refused. Miss X recently appealed this decision successfully. So, B now has a place at School C.
36. Miss X was recently made homeless and is in temporary accommodation. It seems that her change of circumstances has meant that her reasons for wanting School C outweighed the impact on the school being over-subscribed.

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Findings

Complaint (a): The Council failed to tell Miss X where B was on the waiting list

37. It would be for the school to tell a parent where their child was on the waiting list. We cannot look at School C’s actions. Miss X says she did ask but she was never told. I have now been told that B was low on the waiting list and it is very unlikely she would have been offered a place between September and December 2021.

Complaint (b): failed to consider B’s case properly at the fair access protocol meeting or provide reasons why B could not be admitted besides saying the school was over-subscribed

38. Miss X told the Council in September 2021 that she would not be sending B to the allocated school, her third-choice preference. But she would be home educating. Miss X was advised to make an in-year application to a school.
39. According to the Council’s policy on its fair access protocol, there should have been a risk assessment to identify B’s possible assessed needs to identify the most suitable placement. I cannot see that this happened, so my view is that this is fault.
40. It is very difficult to determine whether the fair access Panel considered B’s case properly because there are no minutes of the meeting which show how the Panel weighed in the balance all the relevant facts. Just recording the decision does not give any information about the discussions, which were had, or how Miss X’s reasons for wanting a place at School C were considered. I consider that it is fault not to make brief minutes of the discussions or the detailed rationale for the decisions made.

Complaint (c): that there was no contact from the school allocated by the Panel

41. There is a discrepancy between what the Council says and what Miss X says with the Council saying Miss X was offered an induction meeting and Miss X saying she was not. I do not think I can resolve this discrepancy on the evidence to date. But, whatever, B should have started at School D by mid-May 2022. It seems that there was no follow-up by the Council as to why B was not attending School D. I recognise that Miss X was home educating, but the Council had decided that this was unsatisfactory. My view is that, because the Council knew B was missing from education (and the home schooling was unsatisfactory), it should have made prompt enquiries why B was not at the school allocated by the Panel. The fact it did not amounts to fault.

Complaint (d): there was little help from the home education team or follow up

42. In February 2022, the home education team determined that the home schooling was unsatisfactory. The Council was mindful of the difficult circumstances Miss X was experiencing at the time, and decided to delay further consideration until May, three months later.
43. I find that the Council should have considered in February 2022 whether it had a duty to provide alternative education under s19, or whether it should enforce B’s attendance at the allocated school. I think it is very unlikely the Council would have taken enforcement action given Miss X’s personal circumstances. So, that left consideration as to whether alternative education should have been provided (tuition at home or in another setting). I cannot see that the Council considered its s19 duty and I consider that this amounts to fault. Had consideration been given to this option, I find the Council should have provided alternative education to B from March 2022.

Injustice

44. My view is that B has missed out on receiving alternative education from March to July 2022, some four school months. In addition, Miss X has not been provided with a rationale for the fair access Panel decision and she has been caused unnecessary distress.

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Agreed actions

45. The Ombudsman’s guidance on remedies makes the following points:
• where there has been a loss of education, we normally recommend between £200 to £600 per school month;
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

46. In this case, the Council has agreed the following action within one month of the date of the final statement:
1. to apologise to Miss X and make a symbolic payment of £350 for the avoidable distress and uncertainty that the outcome may have been different but for the faults;
2. to pay £2,400 to Miss X for B’s lost education (£600 for four school months) which should be used to help B make up the lost education and Miss X should discuss what might be appropriate with School C;
3. to remind the home education team that, where home schooling is considered unsatisfactory, it should consider whether enforcement action should be taken to ensure a pupil’s school attendance, or consider whether its duty to provide alternative education is triggered; and
4. the Council does not consider it is necessary to make notes of the fair access Panel meetings. However, its policy says that the protocol must be transparent and equitable. I recognize that the Panel keeps a record of the decisions. But to achieve transparency, there should be a brief account of how the Panel weighed in the balance all the available information, and why it allocated a particular school. As Council staff attend these meetings, it seems it would be possible for these staff members to make brief notes of the decision making, and therefore it should be relatively easy to introduce this change of procedure. I also note that the Council’s policy says there should be an assessment of a pupil’s needs. This did not happen in this case. The Council should now ensure that this aspect of its policy is adhered to by reminding relevant staff of this requirement.

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Final decision

47. The Council has accepted the findings and recommended actions. Therefore, I have completed my investigation and am closing the complaint.

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Parts of the complaint that I did not investigate

48. I have not investigated the May 2021 independent Admissions Appeal Panel’s actions because the events after this Panel hearing were the main reason for Miss X complaining to us.

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Investigator's decision on behalf of the Ombudsman