Summary: Ms X complained that the Council delayed in securing a school place for her son, C, and failed to put in place alternative education in the interim. We found the Council was at fault in failing to chase up a school place for C with the school it had identified under the Fair Access Protocol. It also failed to put in place alternative provision while the matter was resolved. As a result, C lost three months’ education and Ms X suffered distress and inconvenience. In recognition of the injustice caused the Council has agreed to apologise to Ms X and make a payment to her.

The complaint

1. Ms X complains that the Council:
• delayed in securing a school place for her son and failed to put in place alternative education in the interim. As a result, he lost out on education and Ms X suffered distress and anxiety; and
• failed to inform her in writing of the Fair Access Panel’s decision thereby denying her the opportunity to contact the school herself causing further distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)

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How I considered this complaint

5. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the documents it provided.
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Fair Access Protocols

8. The School Admission 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 Protocol has been agreed, all admission authorities must participate in it. The Code says the operation of the Protocol is triggered when a parent of an eligible child has not secured a place under in-year admission procedures.
9. Placement decisions must be made within 20 school days of a child being referred to the FAP.
10. Government guidance, ‘Fair access protocols: advice for local authorities and school admission authorities’ August 2021 says decisions on the placement of children should be made in accordance with the local FAP and should include 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).
11. The guidance says that, once a school place has been allocated, parents should be notified and arrangements made for the child to start at the school as soon as possible to avoid any gaps in their education. While some time may be required to allow schools to put in place any arrangements, they should be made quickly to ensure the child can start school as soon as possible.
12. Admission authorities must admit children when asked to do so in accordance with the FAP. Where an admission authority has failed to admit a child in accordance with the FAP, they may be directed to do so. Councils have the power to direct the governing body of a maintained school for which it is not the admission authority to admit a child even when the school is full. Where a council considers an academy will best meet the needs of the child, it can ask the Academy to admit that a child but has no power to direct it to do so. The council and the academy will usually come to an agreement. But, if the academy refuses to admit the child, the council can ask the Secretary of State to intervene. The Secretary of State has the power to direct the admission of any child to any academy.

The Council’s Fair Access Protocol

13. The Council has a Fair Access Panel which considers applications under the FAP and agrees placements. The Council’s FAP says panel decisions will be notified to the in-year admissions team who will write to the parent and copy the correspondence to the receiving school. The school will contact the parent within five school days and agree a start date for the child.
14. The Council’s FAP says all schools are expected to participate in the panel process and ensure the head teacher or a delegated colleague attends every meeting. If a school has no representation at panel, that school may still be allocated a fair access placement where the panel regard it to be the most suitable provision for the child. The identified school/academy will be required to admit the pupil without delay. In cases where a school fails to comply, the school will be referred to the Secretary of State via the Education Funding Agency for direction where necessary.

Alternative education for children out of school

15. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of “illness, exclusion from school or otherwise” if they would not receive suitable education without such arrangements. The provision generally should be full-time unless it is not in the child’s interests. (Education Act 1996, section 19).
16. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if 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)

Key facts

17. Ms X applied for a school place for her son, C, in late July 2022, having moved into the Council’s area. The Council requested information from C’s previous school and decided to refer the application to the fair access panel.
18. The panel was held on 14 September 2022. It decided C should be offered a place at School A. No representative of the school was present at the meeting. The Council informed the school of the decision the same day and asked it to contact the family to make the necessary arrangements and organise a start date within five school days in line with the agreed protocol.
19. On 16 September 2022 Ms X contacted the Council requesting the outcome of the panel. The Council explained a school had been named but, because the school was not present at the meeting, it could not tell her its name until it had confirmed it would offer C a place.
20. The same day School A contacted the Council asking for clarification from C’s previous school about information it had provided.
21. On 20 September 2022 Ms X telephoned the Council requesting an update. The Council explained the school had not yet confirmed it would offer C a place. The same day the Council provided further information to School A.
22. On 26 and 27 September the Council contacted the school asking whether it had contacted Ms X.
23. On 28 September Ms X again requested information and the Council repeated the same information as previously. The Council reminded the school that C had been out of school for 10 days.
24. On 30 September the Council chased School A again. The school said it needed further information from C’s previous school. The Council agreed to obtain this information and provided it on 3 October.
25. On 4 October Ms X telephoned the Council expressing concern that C had been out of school since the beginning of term.
26. On 11 October 2022 Ms X complained to the Council.
27. On 7 November 2022 the Council contacted School A requesting an update. The school said a meeting had been arranged with Ms X.
28. On 10 November 2022 the Council responded to Ms X’s complaint. It said that, as no response had been received from the school, it had written to the head teacher to obtain an update. The Council said that, if the school did not respond or if it declined to honour the place offered by the panel, it would “look to refer the case to the secretary of state”. It said there was no definitive time frame for it to do so but it must give the school a reasonable time to respond.
29. C started at School A on 2 December 2022.

Analysis

Delay in securing a school place

30. I am satisfied that between 14 September and 3 October 2022 the Council repeatedly contacted the school about a place for C. However, I have seen no evidence to suggest it contacted the school again until 7 November 2022. I find the Council was at fault in failing to contact the school between four October and 6 November 2022. If it had done so, C may have been able to start at the school sooner.
31. The Council could have asked the Secretary of State to intervene and direct the school to offer C a place. The Council says it did not do so because it is not the admissions authority for any schools in the borough and is reliant on maintaining reasonable relationships with schools to ensure children can access education promptly. It says the delays occurred because the school requested further information to satisfy itself that it could make any necessary reasonable adjustments to ensure the placement had the best possible outcome. The Council considered this was not unreasonable. This was a decision the Council was entitled to reach.
32. The guidance says that, where a council considers an academy will best meet the needs of the child, it can ask the Academy to admit the child but has no power to direct it to do so. The Council and the Academy will usually come to an agreement. But if the academy refuses to admit the child the Council can ask the Secretary of State to intervene.
33. In this case, the school did not refuse to admit C but wanted further information before agreeing to do so. I therefore find no grounds to criticise the Council’s approach in liaising with the school rather than asking the Secretary of State to intervene.

Failure to notify Ms X of the name of the school

34. Ms X says she was denied the opportunity to liaise with School A herself because the Council refused to tell her its name.
35. Under the FAP, the school would normally have a representative present at the panel meeting and agree to the placement at the meeting. The Council would then notify the parent of the name of the school. However, in this case, no representative of the school was present at the panel meeting. So, the Council decided it was appropriate to wait until the school confirmed it would offer C a place before notifying Ms X of its name. I find no grounds to criticise this.

Alternative provision

36. I find the Council was at fault in failing to properly consider its duties under Section 19 to arrange alternative education provision for C while he was out of school.
37. I recognise the Council did identify a suitable school place for C and it chased the school to admit him, but this does not mean it had no responsibility to offer C alternative provision. The Council was aware that C had been without a school place since 1 September 2022 and there was no education ‘available and accessible’ to him. Councils should ensure a child receives a suitable education as soon as it is clear they will be away from school for 15 days or more. The Council has a statutory duty to make alternative provision. So, whatever other action it was taking to help get C back to school, I consider it should have offered him some form of alternative education provision while it tried to resolve the situation. This could have been in the form of remote learning. Failure to do so was fault and meant C had no educational provision at all for three months.
38. I consider the Council should have offered alternative education from early October 2022 alongside the other steps it was taking as it was clear by that point that the matter was not going to be resolved quickly. I recommend a remedy to recognise C’s loss of education from then until 2 December when he started at School A.
39. Our guidance on remedies says that, where fault has resulted in a loss of educational provision, we will usually recommend a payment of between £200 and £600 a month to acknowledge the impact of that loss. Because C is in his final year of secondary school and should have been working towards his GCSEs, I have recommended a remedy at the higher end of the scale (£500 per month).

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Agreed action

40. The Council has agreed that, within one month, it will:
• send a written apology to Ms X for the distress and time and trouble she suffered because of the failings identified;
• pay Mrs X £900 in recognition of C’s loss of educational provision from the beginning of October to the beginning of December 2022 (taking account of school holidays). This should be used for C’s educational benefit to enable him to catch up on lost education; and
• issue a written reminder to relevant staff to ensure they are aware of the Council’s duties under section 19 of the Education Act 1996 to provide alternative education for children where there is no suitable available education which is reasonably practicable for the child to access.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find that, while the Council made considerable efforts to get C back into school between 14 September and 3 October 2022, it failed to pursue the matter with the school between 4 October and 7 November 2022.
43. I also find the Council was also at fault in failing to provide alternative education for C while it tried to resolve matters with the school.
44. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman