The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council dealt with an in-year application for a school place. One of the schools Mrs X applied to is an academy. The Council was acting on the school’s behalf and we have no powers to consider complaints about academy schools. Mrs X has the right to appeal the decision not to offer her son a place at the school for which the Council is the admission authority. It is reasonable for Mrs X to use her appeal rights and so we will not investigate. We will not investigate the Council’s handling of Mrs X’s complaint as a standalone issue.
The complaint
The complainant, Mrs X, complained about how the Council dealt with her in-year application for places at two schools. Mrs X says the Council showed a lack of empathy and refused to investigate her complaint, which included an allegation of discrimination.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as Academies and Free Schools. (Local Government Act 1974, sections 25 and 34(1), as amended) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended) School admission appeal panels are tribunals which hear appeals about decisions on applications for school places.
It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
The courts have said we can decide not to investigate a complaint about any action by a council concerning a matter which is outside our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X was moving into the Council’s area and applied for places at two schools close to her new home. School B is an academy and the Academy Trust is the admission authority. School C is a community-controlled school and the Council is the admission authority. It is the admission authority which holds ultimate responsibility for school admissions matters.
The Council wrote to Mrs X with the outcome of her application. Because both schools were full, the respective admission authorities (the Council and Academy Trust) refused Mrs X’s application. The Council offered Mrs X’s son an alternative school place once she provided proof of her new address.
We will not investigate Mrs X’s complaint. The reasons for this are as follows: School B is an academy. The Council’s involvement was effectively as a contractor on behalf of School B. The school is its own admission authority and therefore takes final responsibility for decisions about school admissions. Mrs X’s complaint is ultimately against School B, rather than the Council. The law prevents us from considering complaints about academies. We therefore have no jurisdiction to consider this part of Mrs X’s complaint.
School B is a community-controlled school and the Council is therefore the admission authority. Mrs X has the right to appeal the decision not to offer her son a place to a school admission appeal panel. These panels are statutory tribunals. When a person can appeal to a tribunal, we expect them to use this right unless it is unreasonable for them to do so. The panel can consider how Mrs X’s application has been dealt with. The appeal panel could offer Mrs X’s son a place. This is the outcome Mrs X wants but is not something we can achieve. It is therefore reasonable for Mrs X to appeal and so we will not investigate this part of her complaint.
Mrs X is unhappy with how the Council has dealt with her complaint. But we will not investigate a council’s complaint handling if we are not going to investigate the matter which led to the original complaint. This applies here and the courts have confirmed this approach is lawful.
Final decision
We will not investigate Mrs X’s complaint. We have no powers to consider complaints about academies and it is reasonable for Mrs X to use her appeal rights.
Investigator's decision on behalf of the Ombudsman