Summary: the Council delayed processing Miss B’s in year school admissions application, delayed referring the matter to the fair access panel, failed to consider whether it was appropriate to send Miss B’s daughter back to the allocated school and failed to keep Miss B up-to-date with what was happening. An apology, payment to Miss B, agreement to refer the case back to the fair access panel and a reminder to those sitting on fair access panels of the requirements when considering a case is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council:
• delayed processing her in year school admissions application for her daughter;
• failed to consider whether it was appropriate to send her daughter back to the school she had withdrawn her from;
• failed to provide her with any updates; and
• gave her conflicting information.
2. Miss B says as a result she has suffered significant distress and there has been an impact on her daughter’s mental health while she has been out of education.

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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. If we are satisfied with an organisation’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

5. 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.
6. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

7. The School Admission Code (the code) says every local authority must have a Fair Access Protocol (FAP), agreed with most schools in its area. This is to ensure that, outside of the normal admissions round, children without a school place, especially the most vulnerable, are offered a place at a suitable school as quickly as possible. Once the FAP has been agreed, all admission authorities must participate in it. The code says the operation of the FAP is triggered when a parent of an eligible child has not secured a place under in-year admission procedures.
8. The code says placement decisions must be made within 20 school days of a child being referred to the FAP.
9. Government guidance, 'Fair access protocols: advice for local authorities and school admission authorities' August 2021 (the guidance) says decisions on the placement of children should be made in accordance with the local FAP and should take into account the following:
• the needs of the child;
• the views of the school/s concerned (no school should be asked to take a disproportionate number of children who have been permanently excluded from other schools, who display challenging behaviour, or who are otherwise being placed via the FAP);
• parental preference (there is no duty for local authorities or admission authorities to comply with parental preference when allocating places through the FAP, but parents' views should be considered).
10. The guidance lists the categories of children who will be dealt with under the FAP.
11. The Council’s In Year Fair Access Protocol (the protocol) says children in the categories listed in the guidance who have been unsuccessful in securing a school place through the in year admissions process or who are not expected to be successful will be considered through this process.
12. The protocol says the Council has a discretionary right to present a case that does not fall into one of the categories where there are other complex factors. One of those categories is children already on the roll of a Manchester secondary school who wish to transfer schools and are identified as being vulnerable/hard to place.
13. The Council’s protocol says where a child has previously been attending a Manchester secondary school and is presented at the panel due to home education being unsuitable the panel will, in the majority of cases, decide the child should return to the school they were previously attending.
14. The protocol says when deciding the most suitable school the panel will consider the following factors:
• parental views of preference;
• the circumstances of the child, including the admission year group, with reference to evidence supplied by the Council;
• the type of placement most suited to meet the needs of the child;
• whether any of the schools identified have a particularly high proportion of children with challenging behaviour or one or more of the exceptional circumstances set out in the school admissions code applies;
• whether there are any concerns about a particular school such as a serious breakdown in the relationship between the school and the family or a strong view about religious ethos;
• the number of children placed at school through the protocol and the leaving date for those children.
15. The protocol says panel decisions will be taken by head teachers and principals only or their representatives. It says the panel must make a clear decision in every case presented in terms of allocating a school place and consensus should be sought. It says in exceptional cases decisions will be made based on a majority vote.

What happened

16. Miss B’s daughter moved to secondary school in September 2022. Miss B removed her daughter from that school on 22 September 2022 following bullying. The school contacted the Council and said Miss B had removed her daughter from the school to electively home educate her.
17. Miss B contacted the Council on 26 September to tell it she had removed her daughter from the school. Miss B put in an application to transfer school.
18. Miss B chased the Council on 12 October to see what was happening with her admissions application. The Council apologised for the delay and told Miss B if any of the requested schools had a place she would be contacted. A Council officer then contacted Miss B on 19 October to tell her the school she had asked for was full. The Council told Miss B about the appeal process. Miss B told the Council about a different school she wanted added as a preference to increase her daughter’s chance of getting a place.
19. The Council contacted the allocated school in 19 October to ask for evidence of Miss B’s request for elective home education.
20. On 28 October the Council received a duplicate application from Miss B for a new school.
21. Miss B chased the Council on 1, 8 and 14 November to find out what was happening with her admissions application. The officers Miss B spoke to told her that her daughter was on the waiting list for the school she had identified and her applications for other schools were pending.
22. The elective home education team contacted Miss B on 15 November to set up a visit. Miss B told the elective home education team she was happy for a visit to go ahead but made clear she was trying to get her daughter back into school.
23. Miss B contacted the Council on 25 November as she was concerned about her daughter missing school. Miss B then put in a complaint on 26 November. Miss B chased the Council again on 28 November. The officer Miss B spoke to told her the admissions team had been asked to return her call.
24. A member of the elective home education team visited Miss B on 29 November. Miss B made clear she had never intended to electively home educate her daughter and wanted a place at a different school. The Council therefore decided elective home education was unsuitable. The officer told Miss B the case would be referred to the in year fair access protocol process but said the outcome would usually be for the child to return to the last attended school.
25. On 2 December Miss B telephoned the Council to chase what was happening. The matter was passed to the admissions team to return her call.
26. The Council emailed Miss B on 8 December to tell her there were no vacancies at her preferred school. The Council said her daughter would be added to the waiting list but she could appeal. The Council also contacted Miss B to complete an in year fair access protocol profile for her daughter.
27. The Council responded to Miss B’s complaint on 20 December and told her that her daughter’s application would be managed through the in year fair access protocol. The Council told Miss B the panel would consider her case in January 2023.
28. The Council’s fair access protocol panel considered the case on 13 January 2023. The Council wrote to Miss B on 17 January to tell her the panel had allocated the existing school.
29. The school began liaising with Miss B about her daughter returning to the school as well as discussing the potential of a managed move. The Council was considering enforcement action.

Analysis

30. Miss B says the Council delayed processing her in year school admissions application when she withdrew her daughter from the allocated school in September 2022. In contrast the Council says it did not delay because it was told Miss B intended to electively home educate her daughter. The Council says it did not carry out the assessment on elective home education until the end of November and therefore had no information before that to suggest elective home education was not appropriate.
31. It is clear from the documentary evidence the Council received two contacts about Miss B’s daughter leaving the allocated school in September 2022. The first came from the allocated school which told the Council Miss B wanted to electively home educate her daughter. The second came from Miss B when she completed a form applying for a new school for her daughter. I appreciate the allocated school had told the Council Miss B wanted to electively home educate her daughter. However, given Miss B also applied for a new school I would have expected the Council to query with Miss B whether elective home education was something she wanted to pursue. I have seen no evidence the Council did that.
32. I am concerned about that given the Council did contact the school and ask it for evidence of Miss B’s request for elective home education. I would have expected the Council to make a similar approach to Miss B, particularly given she had applied for a new school for her daughter as that contradicted the information the school had provided and should have prompted the Council to make further enquiries. Failure to do that is fault. I consider it likely, on the balance of probability, if the Council had queried that with Miss B in either September or October 2022 when she chased the Council it would have known Miss B wanted a new school for her daughter and did not want to electively home educate.
33. I was initially concerned about the Council’s decision to refer Miss B’s daughter to the fair access protocol process. That is because it did not appear Miss B’s daughter fell into the categories set out in the guidance. I therefore considered the Council should have processed Miss B’s application for a new school for her daughter as a normal in year admission application rather than through the FAP. However, I recognise under the Council’s protocol, referred to in paragraph 12, it has discretion to place children through the protocol when they do not meet the usual requirements. I therefore do not criticise the Council for using the fair access protocol process in this case, particularly as it also told Miss B the schools she had applied for were full and she had a right of appeal against the refusal of a place at those schools. Nevertheless, I consider Miss B has suffered an injustice here as if the Council had queried Miss B’s intention in removing her daughter from the school earlier it would likely have referred her case to the fair access protocol panel earlier. That would have meant her case would have been considered at an earlier meeting.
34. In this case the fair access protocol panel that considered the daughter’s case allocated the school Miss B had withdrawn her daughter from. That is an option open to the fair access protocol panel when considering applications from those for whom elective home education has been deemed not appropriate. In this case though Miss B had made clear she never asked to electively home educate her daughter. In any event, I set out in paragraph 14 the process the fair action protocol panel should go through when making a decision on an individual case. In this case the documentary evidence I have seen does not satisfy me the panel gave any consideration to Miss B’s daughter’s case and did not record the reasons why it considered it appropriate to allocate Miss B’s daughter a place at the previous school. The minutes of the meeting show no evidence of consideration given to individual cases. In those circumstances I cannot be satisfied the fair access protocol panel properly considered Miss B’s daughter’s case.
35. I recognise the Council does not have voting rights at the fair access protocol panel meetings. Instead, teachers and principals are the only ones allowed to vote. However, the Council remains responsible for the fair access protocol and for the decisions made at those meetings. As I am not satisfied the meeting that considered Miss B’s daughter’s case properly considered her circumstances I consider the Council at fault.
36. That leaves me to consider an appropriate remedy for the delay dealing with Miss B’s admissions application for her daughter which delayed putting Miss B’s daughter’s case to the fair access protocol panel meeting. As I am not satisfied the panel that considered Miss B’s daughter’s case did so properly I recommended the Council refer the case back to the next access protocol panel meeting to consider it further. The Council has now done that and the panel has decided the allocated school remains appropriate for Miss B’s daughter.
37. In those circumstances I do not consider delay by the Council led to Miss B’s daughter missing out on education. I say that particularly as Miss B’s daughter still had a place at the allocated school which I am satisfied the Council considered an appropriate placement given it was considering enforcement action. In those circumstances I can only seek a remedy for Miss B to reflect her distress and uncertainty about whether the outcome for her daughter would have been different (before the panel considered her case again as a result of my recommendations). To reflect that I recommended the Council apologise to Miss B and pay her £500. I also recommended when referring the case back to the fair access protocol panel the Council remind those taking part in the meetings of the need to follow the process when reaching a decision on cases, including the need to record the reasons for decisions in individual cases. The Council has agreed to my recommendations.
38. Miss B says the Council failed to provide her with any updates. The evidence I have seen satisfies me Miss B chased the Council regularly between October and December 2022. There is no evidence the Council either properly understood what Miss B was seeking at that point, given it had not clarified whether she wanted to home educate her daughter, and nor is there any evidence that her telephone calls in November and December were returned until 8 December. That is fault. The Council has apologised for that. I consider that a satisfactory remedy for this part of the complaint, alongside the financial remedy I referred to earlier.
39. Miss B says the Council gave her conflicting information. Miss B refers, in particular to officers telling her they could not find her case, that her daughter had already accepted a place at the allocated school and that the records referred to 2021 even though the officers she dealt with told her the records had been updated. The Council accepted in the stage two complaint response officers in the contact centre did not have the same level of specialist knowledge as officers in admissions which affected the information given to Miss B. The Council apologised and said it had briefed contact centre managers on waiting lists and year 7 applications for them to share with their teams. I welcome that. It is my view though that if admissions officers had returned Miss B’s calls the issues with conflicting and confusing information could have been avoided. I welcome the Council’s willingness to admit there were issues here though and consider the apology offered, plus the information given to contact centre managers, satisfactory remedy for this part of the complaint.

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Agreed action

40. Within one month of my decision the Council should:
• apologise to Miss B;
• pay Miss B £500;
• send a reminder to those sitting on fair access protocol panels to remind them of the need to ensure decision-making processes are properly documented in individual cases.
41. The Council has already referred Miss B’s daughter’s case to another fair access protocol panel which has decided the allocated school remains appropriate.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman