Summary: Mrs Y complains the Council took too long to offer a school place to her son, D, when she stopped providing home education. She says D missed a significant amount of education due to the Council’s delay. We find the Council did not comply with the timescales in the statutory guidance and its own policy which caused significant injustice to D. To remedy the injustice caused by fault, the Council has agreed to complete the actions listed at the end of this statement.

The complaint

1. Mrs Y complains about the time taken to process an in-year application to secure a school place for her son, D. As a result of that delay, D experienced a prolonged period without access to education that he was entitled to.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
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. We discussed the complaint with Mrs Y and considered information she provided.
6. We made enquiries of the Council and considered its response.
7. We consulted the relevant law, guidance and policies which I have referred to in this statement.
8. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making the final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Fair Access in School Admissions

10. The Department for Education issues statutory guidance about school admissions in The School Admissions Code. Admission authorities have a statutory duty to comply with the Code. Where the Code imposes compulsory requirements, or refer to requirements in legislation, they use the words “must” or “must not”.
11. Any parent can apply for a place for their child at any time to any school outside the normal admissions round. They can do this by applying directly to admission authorities, or to the council if they coordinate all in-year admissions. (School Admissions Code 2021, paragraph 2.23)
12. Where an admission authority receives an in-year application for a year group that is not the normal point of entry and it does not wish to admit the child because it has good reason to believe that the child may display challenging behaviour, it may refuse admission and refer the child to the Fair Access Protocol. (School Admissions Code 2021, paragraph 3.10)
13. The Code says, “Each local authority must have a Fair Access Protocol to ensure that unplaced and vulnerable children, and those who are having difficulty in securing a school place in-year, are allocated a school place as quickly as possible” (School Admissions Code 2021, paragraph 3.14)
14. For a young person to be considered under the protocol, they will need to fall into one of the categories set out in the council’s own policy.
15. The Council’s Fair Access Protocol (FAP) contains the following key principles.
• No child will remain without a school place for more than 20 school days.
• Children and young people whose needs are such that admission to a mainstream school is not realistic within 20 school days are placed in alternative provision with a view to reintegration.
• All schools respond promptly to requests for admission in order that there is no undue delay.
• Applications for children withdrawn from school for Elective Home Education (EHE) whose parents are unable to provide suitable education will, in most cases, be re-directed to their original school.
16. The Code also says, “a local authority has the power to direct the governing body of a maintained school for which they are not the admission authority to admit a child in their area even when the school is full. The local authority can only make such a direction in respect of a child in the local authority’s area who has been refused entry to, or has been permanently excluded from, every suitable school within a reasonable distance. The local authority must choose a school that is a reasonable distance from the child’s home and from which the child is not permanently excluded” (School Admissions Code 2021, paragraph 3.23)
17. The Council’s FAP is silent on its powers to seek a direction to admit from the Secretary of State.

Key background events relevant to the complaint

18. Mrs Y removed D from School A in December 2021 whilst he was assessed for Attention Deficit Hyperactivity Disorder (ADHD). Mrs Y intended to provide Elective Home Education (EHE) on a short-term basis before arranging for D to return to a school setting.
19. Mrs Y applied to the Council for a school place on 21 April 2022 when D was in school Year 9. On the application Mrs Y said D was previously home educated but now needed a school place. Mrs Y received a refusal letter with a right of appeal the following day because the school applied for had no space for D.
20. Three days later Mrs Y asked the Council to approach a different school. The Council has no record of an outcome – either to offer or refuse a place – being sent to Mrs Y.
21. Mrs Y contacted the Council in August 2022 to confirm that she no longer wanted to EHE D, and it was her intention for D to return to school as soon as possible.
22. Mrs Y made another in-year application for D in September 2022 naming two of the schools she had previously applied for in April. In October Mrs Y received notification that both schools remained full in D’s year group.
23. Mrs Y added School B to the application. School B agreed to meet Mrs Y and D.
24. The meeting went ahead in November 2022. After consideration School B refused to admit D, despite having availability in the year group. School B wrote to the Council citing 3.10 of the Admissions Code as its reason for refusal. School B is an academy and its own admissions authority.
25. In December 2022 the Council referred D’s application back to School A. It referred to the local agreement for schools to re-admit previous pupils if EHE has failed.
26. The Council wrote to Mrs Y on 3 January 2023 to confirm School B’s refusal to admit D and gave her a right of appeal.
27. The Council referred D’s case to its FAP ‘Inclusion Panel’ on 7 February 2023. The Council contacted School A again. After consideration School A again refused to re-admit D and wrote to the Council confirming its position.
28. The FAP panel considered D’s case again in March. The Council discussed a possible managed move. This is a formal agreement between two schools, a child and their parents. It allows a child at risk of permanent exclusion to have a trial transfer to another school on a dual registration basis. Despite this, School A maintained their refusal to admit. The Council recorded its view that School A was not adhering to the fair access process.
29. The FAP panel met again in May. School B agreed to admit D under a managed move if D was put back onto the roll of School A.
30. Two months later the Council arranged a managed move for D to attend School B but on the basis he remained on the roll of School A.
31. School A agreed on 4 July 2023 to place D onto their roll for a managed move.
32. D started attending School B from 6 September 2023.
33. Mrs Y complained to the Council again. She expressed her dissatisfaction with the decision to pursue a managed move. She said D did not have behavioural issues and so the managed move was not the most appropriate option for him. Mrs Y also said the Council should have offered alternative provision for the period during which D waited for a school place.
34. The Council responded in September 2023. It acknowledged there had been delay in securing D’s placement and said it would produce a timeline of events to be considered at the next FAP panel with a possibility of referring the matter to the Secretary of State.
35. D’s managed move failed in February 2024, and he returned to School A where he currently remains on roll as a permanent pupil.

Was there fault in the Council’s actions causing injustice to Mrs Y and D?

36. This case shows how drift and inaction can cause significant personal injustice and long-term disadvantage for a young person like D. It also highlights wider problems which many parents and councils now face following the widespread academisation of schools. All secondary schools in the Council’s area are now academy schools. Academies are their own admissions authority, and the Academy Trust is responsible for consulting and determining the school’s admission arrangements. Councils have limited powers to ensure the admission of pupils into those schools.
37. Although the Council was not the admission authority for any of the schools involved in D’s case, and could not direct the admission D, it did have the power to make a request to the Secretary of State for a direction. The Council did not utilise this power. Instead, D’s application for a school place was subject to significant drift.
38. We acknowledge the Council is not responsible for the academisation of schools in its area and cannot be found at fault for any complexities in the national system. However, this case shows why it is important for councils to use the full force of their limited powers to ensure that pupils, like D, do not remain out of school for longer than necessary.
39. In our view, we find the Council failed in its legal duty to provide education once Mrs Y said D needed a school place from April 2022. This caused D significant injustice, with possible long-term consequences arising from his academic disadvantage.
40. The fault we have found is as follows.
• The Council’s Admissions team did not make an alternative school offer in April 2022 when Mrs Y informed that she was no longer home educating D. At this point, D did not have access to any education, and he was not under the FAP. He was therefore an ‘unplaced’ applicant.
• The Admissions team did not promptly identify that D’s application met FAP criteria and delayed in referring it to the Fair Access panel.
• When eventually accepted under the FAP, the Council did not follow statutory guidance or its own policy which says it will act with urgency and make a place available within 20 school days (in D’s case by 20 May 2022). If not possible, the FAP says Council should make alternative provision available. It did not offer any alternative provision for D.
• The Council did not consider using its powers to apply for a direction from the Secretary of State when School A refused to admit D despite having spaces in his year group. This was despite the FAP saying that, in most cases, the child’s previous school should re-admit if EHE has failed.
• The Council did not appear to have due regard for its duties under Schedule 1, First Protocol, Article 2 of the Human Rights Act 1998 which says that no person shall be denied the right to education.
• Overall, the Council failed to co-ordinate its services and take timely, appropriate action to ensure D received education which he was entitled to. In line with its published scheme, the Council should have processed D’s application within 20 school days. As a direct result, D missed three and a half school terms of education in Year 9 and 10.
41. The Ombudsman’s Remedies Guidance says, “Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors”.
42. The relevant factors in D’s case are:
• Whether any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams

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Agreed action

43. In response to our enquiries the Council confirmed it has taken the following action because of D’s case.
• Admissions now have regular meetings with schools to monitor response times for applications as well as regular meetings within the team to identify any concerns.
• The Fair Access Protocol is being updated to include a process and timescale for referrals to the Secretary of State for the direction of admission.
44. The Ombudsman welcomes these service improvements, and we ask the Council to provide evidence of them within 12 weeks of our final decision.
45. To fully remedy the injustice to Mrs Y and D, the Council has also agreed to:
• apologise in writing to Mrs Y and D within four weeks of our final decision for the provision he has missed due to Council fault;
• pay £7,000 to Mrs Y for D’s educational benefit within four weeks of our final decision. This comprises of £2,000 for each school term during which D remained out of school and without any educational provision. The Council’s duty began on 20 May 2022 and ended on 6 September 2023;
• pay £300 to Mrs Y within four weeks of our final decision. This is a symbolic payment for the avoidable time and trouble caused by the Council’s failure to allocate a school place, or offer alternative provision, within the published timescales; and
• arrange internal training with its officers in the Admissions/Fair Access Protocol/Children Missing in Education teams to go over the service improvements. The Council will also use the training to refresh officers’ knowledge around the Fair Access Protocol and the requirement to escalate applications without delay if a pupil is off-roll and not receiving any education. The Council should arrange this training within four weeks of updating the FAP (in total 16 weeks from our final decision).

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Final decision

46. We have completed our investigation with a finding of fault causing injustice to both Mrs Y and D for the reasons explained in this statement. The actions listed above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman