Summary: We will not investigate this complaint the Council wrongly shared personal information about the complainant’s child. The Council has already apologised. Further investigation by the Ombudsman would not lead to a different outcome. We will also not investigate their complaint the Council has failed to provide their child a fulltime education. There is not enough evidence of fault to justify our involvement.

The complaint

1. Miss X complained the Council shared personal information about her child, Y, after she applied to change their school place in-year. She said information presented to the Fair Access Panel (FAP) about Y, was out of date and not relevant to the school application. She said providing it to the FAP had traumatised Y and herself.
2. Miss X also complained Y had been without a fulltime education for two years. She said Y could not attend the school they were on-roll at, School A, because they were at risk of exclusion. She said Y could not attend an alternative school place offered following the FAP at School B, because it was failing to make reasonable adjustments. She wants the Council to provide Y the education is entitled to.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. In the Council’s complaint response to Miss X it apologised for sharing personal information about Y with different schools as part of the FAP. It said it had contacted the schools and asked them to destroy the information shared. It confirmed it had also referred the matter to its Data Protection Officer. It apologised for any distress caused by sharing the personal information.
10. We will not investigate this complaint. The Council has upheld the complaint and apologised. That is in-line with our guidance on remedies. Any outstanding concerns Miss X has about how the Council has managed Y’s personal data are best dealt with by the Information Commissioner’s Office.
11. We will also not investigate Miss X’s complaint that Y is not receiving a fulltime education. Firstly, most of Miss X’s dissatisfaction relates to the actions of the School A and School B; she states neither are making reasonable adjustments to support Y’s attendance. The law says we cannot investigate what happens in schools. Therefore, her complaints about School A and School B are outside our jurisdiction.
12. Secondly, caselaw has determined the Council’s duty to provide alternative education only applies where there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017).
13. The Council’s view is there are no grounds for Y not to be attending school. It is satisfied that both School A and School B are appropriate and available to Y. It is Miss X’s choice not to send them. The Council has set out its reasons why it is satisfied Y can attend school; therefore, there is not enough evidence of fault in its decision not to provide alternative education to justify our involvement.

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Final decision

14. We will not investigate Miss X’s complaint because the Council has already apologised. Further investigation would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman