Summary: Miss X complains an error within the Council’s computer system took her children off the school roll. The school refused to take them back, causing frustration and distress to Miss X and her children, Y and Z. We find fault with the Council for the computer error, but the apologies given already are a satisfactory remedy.

The complaint

1. Miss X complains due to the Council’s error, her children Y and Z were removed from the school roll just before her son Z was about to take his GCSE exams.
2. This caused distress and frustration as the school refused to let Z sit his exams there.
3. Miss X would like the Council to apologise to Y and Z.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
6. 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.
7. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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

10. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
11. Miss X and the Council 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

Legal and administrative background

Education, Health and Care Plan

12. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
13. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Delivery of Special Educational Provision

14. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Service failure

15. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)

What happened

16. Miss X has two children, Y and Z who attend secondary school and have EHC Plans.

Child Y

17. The Council issued Y’s EHC Plan in September 2023 with the school named in Section I and the Council agreed to provide funding for alternative provision to help her transition back to school.
18. The Council sent out the consultation for Y’s annual review in June 2024 but did not receive any paperwork from the school.
19. In July 2024 the school told the Council Y had not attended since the beginning of the school year and she was no longer on the school roll.
20. The Council found another placement for Y and issued her final EHC Plan in August 2024 naming the new placement in Section I.

Child Z

21. Z had a dual registration with alternative provision and the school named in Section I of his EHC Plan. This was because he could not attend school due to medical reasons in December 2023.
22. The Council extended the alternative provision in February 2024 until Easter to transition Z back into school.
23. On 2 May 2024 the Council had a meeting with the school and the school said Z was no longer on the school roll. The Council asked for confirmation of his off-roll status.
24. Coincidentally on the same day Miss X had a meeting with the school to discuss seating arrangements for Z’s GCSE exams. In response to our enquiries the Council advised a social worker spoke to Miss X and told her Z was no longer on the school roll and he hadn’t been since December 2023.
25. The Council asked the school to let Z still sit his exams there as the school had already ordered GCSE papers. The school said it could not help with this as he was no longer on the roll.
26. There was a virtual meeting on 8 May 2024 between the Council and the school. The Council said it had Z showing as “SEN awaiting placement” since December 2023. The school said it had not entered him for the exams and suggested a learning centre, but it was too late for it to transfer the papers.
27. The Council contacted at least 20 centres to see if it could enter Z as a private candidate, without success. One centre said it could if the Council paid the late fee. The Council tried to enter him but as the centre said the school had already registered him so he could not be entered twice.
28. The Council called the exam board who confirmed the school had registered Z and had the papers so he had to sit his exams there.
29. On 9 May 2024 the school confirmed it had withdrawn Z so the Council called the centre to advise it could now enter him so sit his exams there but it was already full. The Council asked the school to enter him as a private candidate but got no response.
30. The Council called more exam centres to get Z a place to sit his exams, and called Miss X to explain what was happening.
31. The Council found a place for Z to sit his exams as a private candidate and updated Miss X.

Complaint

32. Miss X complained to the Council on 7 May saying Z had exams that week but he and his sister were not on the school roll. This meant he had to sit his exams in two unfamiliar settings, he did not get his assigned extra time and was not provided with the laptop he needed for his English exam.
33. The Council’s stage one response in June said due to a “glitch” in its computer system both children had come off the roll and apologised.
34. The “glitch” occurred when adapting existing records for children with alternative provison. In April the system had “closed” a school attendance the day before the alternative provision started rather than creating overlapping attendances. The Council said it resolved the issue by 9 May.
35. It said “this does not justify a school to remove a child from the roll as the school database is always trusted over what is held by the Council”. It said alternative provision was still in place for Y and Z until the end of the school year.
36. Miss X was unhappy with the response and raised a stage two complaint in June. She said the lack of provison for Z in his exams put him at a disadvantage. Y was looking forward to attending school in September and had her uniform ready but now is not sure if she will be returning.
37. The Council apologised for the impact on the whole family and accepted the lack of access arrangements potentially created a disadvantage for Z in his exams.
38. The Council found a specialist placement for Y starting in September and Z has a place at College.
39. The Council said the attendances were missed because of other work being done. This resulted in Y and Z being taken off the roll by the school. The team have identified an additional process will need to be in place moving forward to prevent this happening again. The Council will provide Y and Z with a written apology.
40. Miss X brought her complaint to the Ombudsman. She said Y had to go to a new school and was feeling unwanted. She also complained to the school.

Analysis

41. Due to a computer “glitch” Y and Z were taken off the school roll. The school then took them off its roll.
42. The Council did not know about this until May, just before Z’s GCSE exams.
43. The Council did all it could to ensure Z could still sit his exams, and continued to provide Y and Z with alternative provison until the end of the school year.
44. Y was given a specialist placement to start in September, and Z was going on to College.
45. There has been a service failure (see paragraph 15) so the Council are at fault for the “glitch” to its computer system, however this was not something that could have been anticipated, and once the Council knew about the “glitch” it rectified it quickly.
46. Although Z suffered injustice due to having sit his exams in a new venue and not getting the provision he was entitled to, this fault lies with his school rather than the Council for not allowing him to sit his exams there. Miss X has raised a complaint with the school.
47. The “glitch” caused frustration and distress to Miss X, Y and Z but this is limited as the Council did all it could once it knew Y and Z were off the school roll.
48. The Council said it would provide Y and Z with a written apology (see paragraph 40) and this is sufficient remedy for the fault identified.
49. The Council has also identified what it needs to do to ensure this does not reoccur (see paragraph 40) so I not made any further recommendations or service improvements in this matter.

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Final decision

I find the Council at fault for a service failure causing Y and Z to be taken off the school roll. This caused injustice to Miss X, Y and Z for which the Council has already remedied.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman