Summary: Ms X complained the Council failed to adequately facilitate an independent review panel meeting regarding a permanent exclusion from school. She also complained the Council failed to produce adequate minutes of the meeting. Ms X said the Council’s actions negatively affected the family’s mental health. We found fault by the Council. The Council has agreed to provide an apology, a financial remedy and a copy of the notes taken at the meeting.

The complaint

1. Ms X complained on behalf of Ms Y that the Council failed to adequately facilitate an independent review panel meeting regarding the permanent exclusion of Ms Y’s son from school. Ms X also complained the Council failed to produce adequate minutes of the meeting. Ms X says the Council’s actions negatively affected the family’s mental health and prevented Ms Y from seeking a judicial review of the panel’s decision. She would like the Council to apologise and take steps to ensure the same issues do not happen again.
2. Ms X also complained about the Council’s handling of her complaint.

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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 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)
4. 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))
5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). Where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
6. 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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What I have and have not investigated

7. I have investigated the complaint referenced in paragraph one.
8. I have not investigated the complaint referenced in paragraph two. This is because there is not enough evidence of fault to justify investigating this aspect of the complaint.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on a draft of this decision. I considered any comments before making a final decision.
11. 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

School exclusions

12. A head teacher may permanently exclude a child from school in response to a serious breach or persistent breaches of the school's behaviour policy, and where allowing the pupil to remain in school would seriously harm the education or welfare of other pupils in the school.
13. Parents can appeal a head teacher’s decision to permanently exclude their child to the school’s governors. The governors may uphold the head teacher’s decision or may decide to reinstate the pupil.
14. Where parents dispute the decision of a governing board not to reinstate a permanently excluded pupil, they can ask for this decision to be reviewed by an independent review panel.
15. Parents may request the attendance at the panel of a special educational needs (SEN) expert.
16. An independent review panel does not have the power to direct a governing board to reinstate an excluded pupil. It may direct a governing board to reconsider its decision if the panel decides a governing board’s decision is flawed when considered in the light of the principles used for judicial review. This is a very high threshold.
17. The Ombudsman investigates complaints against the independent review panel. We do not decide whether a pupil should have been excluded or should be reinstated. Our role is to check the panel administered the appeal properly.

Independent review panels

18. If parents appeal the exclusion, councils must constitute a panel of independent members to review the governing body’s decision.
19. The Department for Education published statutory guidance regarding suspension and permanent exclusions from schools. This document provides statutory guidance to which headteachers, governing boards, local authorities, independent review panel members, and other parties, must have regard when carrying out their functions in relation to suspensions and permanent exclusions.
20. Parents, the pupil, any alleged victim or any witnesses may attend the panel or submit written statements. The guidance says panels “must only take account of the evidence that was available to the governing body at the time of making their decision. This includes any evidence which the panel considers would, or should, have been available to the governing body if they had been acting reasonably.” The panel must apply the “balance of probabilities” standard of proof.
21. Panels cannot substitute their decision for that of the governors, and they cannot reinstate a pupil. The panel can uphold the decision to exclude, recommend the governing body reconsiders their decision, or quash the governing body's decision and direct reconsideration.

What happened

22. This chronology includes key events in this case and does not cover everything that happened.
23. Ms Y’s son, Z, was permanently excluded from school in January 2024. Shortly after, Z’s parents, Ms Y and Mr A, appealed to the school’s governing body regarding the headteacher’s decision.
24. The governing body considered the appeal but upheld the headteacher’s decision to permanently exclude Z.
25. In March 2024, Mr A, asked the Council to organise an independent review panel (IRP) to review the governing body’s decision. Mr A told the Council an advocate would be attending the IRP meeting with him.
26. The Council spoke to Mr A in early April 2024 and asked him who would be present with him at the IRP. Mr A told the Council Ms X would be attending; he provided Ms X’s telephone number to the Council.
27. The Council spoke to Mr A and Ms X to discuss the arrangements of the IRP meeting.
28. The Council emailed Mr A on 12 April 2024. It referred to its calls to Mr A and Ms X and acknowledged all relevant parties were not available to meet within the timeframe specified by the statutory guidance concerning IRP meetings. The Council suggested opening an IRP meeting on 24 April 2024, (within the required timeframe) and adjourning it to a date when all parties could attend.
29. Ms X emailed the Council on 16 April 2024 and provided information she and Mr A wished to be considered as part of the IRP meeting.
30. On 23 April 2024, the Council issued hard copies of the IRP document pack to the panel members, school representatives, Mr A and an SEN expert.
31. The IRP meeting convened on 24 April 2024, but was adjourned until 5 June 2024, as this was the date all parties could attend.
32. On 3 June 2024, Ms X contacted the Council. She said she had only just seen the paperwork provided for the IRP meeting and had identified that some papers were missing from the IRP document pack. Ms X provided copies of the missing documents; she said she had not received a copy of the document pack and had only realised some documents were missing when she met with Mr A a few days before.
33. The IRP meeting took place on 5 June 2024, attended by Mr A and Ms X. The panel agreed to accept the additional paperwork provided by Ms X on 3 June 2024 and circulated it to all attendees at the meeting. Ms X made notes of the meeting, as did the Council.

What happened next

34. The Council issued a decision letter to Mr A on 14 June 2024. The letter informed Mr A that the panel recommended the governing body reconsider the reinstatement of Z’s placement at school. The decision letter made reference to matters discussed at the meeting, the panel’s consideration of the review and the reasons for its decision. The letter stated Mr A could challenge the panel’s decision by way of judicial review.
35. Mr A asked the Council to provide a copy of the minutes of the IRP meeting. The Council provided this to Mr A on 1 July 2024.
36. Ms X requested a copy of the minutes on 4 July 2024 and said the family needed these before it could make a decision on what to do next. Ms X said the ability to request a judicial review was time limited.
37. Ms X called the Council on 10 July 2024 and said the minutes sent to Mr A were not the minutes of the IRP meeting. Ms X said she would like a copy of the minutes which detailed what was discussed and the questions raised. She asked the Council to provide this as soon as possible as it was needed before a decision could be made about whether to request a judicial review.
38. The Council informed Ms X on 19 July 2024 that the document provided to Mr A was the minutes of the IRP meeting. Ms X replied and stated the document was only one page, whereas the IRP meeting lasted for about five hours. Ms X said the document provided was not an accurate record of the meeting.

Ms X’s complaint

39. Ms X complained to the Council on 20 August 2024. She said the Council had failed to provide the paperwork to her prior to the IRP meeting, despite knowing she was acting as Mr A’s advocate. Ms X said the Council had also failed to check that all information from the school’s governing body was received; she said some documents were missing from the IRP document pack and this had caused problems on the day of the meeting. Ms X also said the minutes of the meeting did not include the clerk’s name as an attendee, and that there was no full record of what was discussed.
40. The Council provided its complaint response on 3 September 2024. Regarding the provision of the IRP paperwork to Ms X prior to the meeting, the Council said it first needed an agreement from the appellant; the Council said it had not received this. The Council acknowledged some issues regarding all the necessary information being provided by the school. It said it was taking steps to improve communication with schools to prevent any future complications. The Council acknowledged the clerk was not named on the minutes as an attendee and apologised for the error. It said the minutes provided was a record of the decision made rather than a verbatim record of the meeting. The Council said its decision letter provided a full record of the relevant facts relating to the decision.
41. Ms X asked the Council to escalate her complaint to stage two. However, the Council declined the request.
42. Ms X complained about the Council’s complaint handling on 13 September 2024.
43. The Council responded on 4 October 2024 stating it had discretion over whether requests for stage two complaints should go ahead. Regarding the clerk’s contemporaneous notes taken during the IRP meeting, the Council said it is normal and established committee practice for these to be destroyed straight away. The Council said the minutes were the formal, brief minutes which had already been provided, and they should not be confused with the contemporaneous notes taken by the clerk. The Council said it was the formal decision letter which would form the basis of any further appeal or court process.
44. The Council provided a further response on 18 October 2024. It said it was not aware of a policy on the destruction of handwritten notes taken from formal meetings, but said it is a long-standing practice to destroy handwritten notes once formal decisions were typed up. The Council said there were no other verbatim or detailed minutes produced in respect of the IRP meeting.
45. Ms X remained dissatisfied with the Council’s complaint response and brought her complaint to us.

Analysis – sending papers before the review meeting

46. Statutory guidance says the clerk must make reasonable efforts to circulate to all parties, copies of relevant papers at least five school days before the review.
47. Ms X complained the Council did not provide the IRP paperwork to her before the meeting on 5 June 2024. The Council says at that point, there were no instructions from Z’s parents to send paperwork to an advocate.
48. I acknowledge the Council’s comments. However, the Council’s records show it spoke to Mr A on 22 March 2024 and 5 April 2024. During these contacts, Mr A told the Council that Ms X would be attending the IRP meeting as an advocate.
49. The Council also spoke to Ms X on 5 April 2024 and again on 8 April 2024 about the IRP meeting. It also accepted documents from Ms X on 16 April 2024, to be used as part of the IRP process. The evidence therefore indicates the Council was satisfied Ms X had consent from Mr A to participate in the IRP process, and that she would be one of the parties attending the IRP meeting.
50. The evidence shows the Council did not send the relevant papers to Ms X prior to the review, despite knowing she was going to attend. This is not in accordance with the statutory guidance and is therefore fault. This fault caused an injustice to Ms X, namely distress and frustration. However, I consider Mr A could have checked with Ms X to see if she had also received the paperwork and subsequently chased this up with the Council. Whilst this does not negate the fault identified, it is a mitigating factor when considering the injustice caused.

Paperwork provided to the panel prior to the review

51. Ms X complained the Council did not provide all the relevant documents to the IRP before the meeting. The Council says it was unaware some information was not included in the document pack until it received a call from Ms X two days before the hearing was due to take place. The Council said it was a matter for the panel to consider this additional paperwork on the day.
52. The IRP members accepted the additional information on the day of the hearing. However, Ms X said this caused delays in the meeting process.
53. The evidence shows the Council did not provide all the relevant papers to all parties at least five school days before the review. This is acknowledged in the Council’s complaint response dated 3 September 2024. This is not in accordance with the statutory guidance, and is therefore fault.
54. This fault caused an injustice to Ms X (as the advocate present at the meeting) and to Ms Y (as the parent of the child about whom the IRP meeting was convened). The injustice is avoidable distress and uncertainty at whether the panel would accept the additional information. However, the IRP members’ acceptance of the information is a mitigating factor when considering the injustice caused.

The minutes of the hearing

55. The Council acknowledged the minutes of the hearing did not include the name of the clerk in attendance. Statutory guidance says the minutes should include details of the attendance, the voting and the decision.
56. The omission of one of the attendees from the minutes is not in accordance with the statutory guidance. This is fault. However, this fault did not cause a significant injustice to Ms X or Ms Y as it did not affect the outcome of the decision, or the record of the voting.

Content of the minutes

57. I have found no fault regarding the content of the minutes. This is because statutory guidance does not specify the minutes should contain details of what was discussed; it simply states that minutes should show the attendance, voting and decision. As a result, the content of the Council’s minutes is in line with statutory guidance.
58. I acknowledge Ms X’s comments that the Council should have provided details of what was discussed during the IRP meeting. However, this detail is contained within the decision letter dated 14 June 2024.
59. I also acknowledge Ms X requested copies of all notes taken during the IRP meeting, and her comments that the Council failed to provide these. In its correspondence to Ms X, the Council indicated it is normal practice for it to destroy handwritten notes once a formal decision has been typed up. In addition, in its correspondence to Ms X on 18 October 2024, the Council said there are no other verbatim or detailed minutes produced in respect of the panel hearing.
60. However, in its response to my enquiries, the Council has confirmed it has retained the handwritten notes it took at the time of the IRP meeting. The Council failed to provide these to Ms X despite several direct requests. It also indicated to Ms X that the notes were potentially destroyed in line with the Council’s normal practice.
61. The explanation provided to Ms X by the Council regarding the notes from the meeting is flawed. The Council should have informed Ms X that the notes exist, and if it decided not to disclose them, it should have provided this explanation to Ms X with the reasons for its decision. Ms X could then approach the Information Commissioner’s Office if she remained dissatisfied with the Council’s response.
62. The Council’s flawed explanation regarding the notes is fault causing an injustice to Ms X and Ms Y, namely avoidable distress and frustration.
63. I acknowledge Ms X’s comments that the failure to provide the notes from the meeting meant the family were timed out of seeking a judicial review of the IRP’s decision. However, the decision letter dated 14 June 2024 provided the Council’s formal response, its rationale and an explanation that Mr A could challenge the decision. As a result, Mr A could have requested a judicial review with the information provided by the Council at that time.

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Action

64. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Ms X and Ms Y for the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
2. Make a symbolic payment of £150 each to Ms X and Ms Y in recognition of the distress and frustration caused. This amount is in line with our published guidance on remedies and takes into account the mitigating factors previously referred to;
3. Provide Ms X and Ms Y with a copy of the notes taken by the Council at the independent review panel meeting, and
4. Remind staff of the need to adhere to the statutory guidance regarding independent review panel hearings; specifically that the minutes of the meeting should name all attendees, and that the clerk should make reasonable efforts to send relevant paperwork to all parties at least five school days prior to the review.
65. The Council should provide us with evidence it has complied with the above actions.

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Decision

66. I have found fault causing an injustice to Ms X and Ms Y. The Council has agreed to take the above action to remedy the injustice and I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman