The Ombudsman's final decision
Summary: Mrs X complains that the Council failed to make appropriate reasonable adjustments for her son when sitting the 11 plus test. There is no evidence of fault in how the Council made its decision on what reasonable adjustments it should make for Mrs X’s son. The Council is at fault in how it communicated with Mrs X and it delayed in dealing with her complaint which caused distress, frustration and avoidable time and trouble to Mrs X. The Council has agreed to remedy this injustice by apologising to Mrs X and making a payment of £200 to acknowledge the distress caused to her.
The complaint
Mrs X complains that the Council failed to make appropriate reasonable adjustments for her son which took account of his individual needs when sitting his 11 plus test. Mrs X says this impacted on her son’s performance in the test as it caused unnecessary anxiety to him and caused distress to her.
Mrs X also complains the Council has failed to properly implement the recommendations of its stage two investigation, including providing a robust explanation about why it was not reasonable for her son to sit the 11 plus test at his primary school.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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) If we are satisfied with a council’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)
How I considered this complaint
I have: Considered the complaint and the information provided by Mrs X; Discussed the issues with Mrs X; Made enquiries of the Council and considered the information provided; Invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.
What I found
Equality Act 2010 Councils have a duty under the Equality Act 2010 to ensure a disabled person can use a service as close as it is reasonably possible to the standard offered to non-disabled people. If a disabled person requests an adjustment, the Council must make it if it is reasonable.
School Admissions Code The school admissions code applicable at the time of this complaint provided that admission authorities must ensure tests for selection are accessible to children with special educational needs and disabilities. The admission authority must have regard to the reasonable adjustments for disabled pupils required under equalities legislation.
What happened Mrs X’s son, Y, has diagnoses of Autism Spectrum Disorder (ASD) and ADHD. Y was due to sit the 11 plus test in autumn 2020. In June 2020 Mrs X requested a number of reasonable adjustments to be made for Y when sitting the test. These included an individual testing session at Y’s primary school as new environments caused anxiety to him and large venues caused sensory overload. Mrs X submitted reports from professionals involved with Y in support of her request.
The Council’s Access Arrangements Panel considered Mrs X’s request in July 2020. The purpose of the panel was to ensure any access arrangements were in line with the Equality Act. The record of the panel’s consideration shows it agreed an individual testing session for Y and the other reasonable adjustments requested by Mrs X. It did not agree to hold the test at Y’s primary school. The record notes that Y should be allowed to visit the venue prior to the test.
The Council notified Mrs X of the date of Y’s individual test. Following an email from Mrs X the Council advised the test would be in an individual room in a test centre. Mrs X raised that she had asked for Y’s test to be held at his primary school as an unfamiliar test centre would put him at significant disadvantage due to his ASD and ADHD. Mrs X said the Council had allowed testing at a pupil’s primary school in previous years.
The Council did not respond so Mrs X made a number of calls chasing a response. Officer 1, admissions officer, responded in late October 2020. It said the Council was not in a position to operate 11 plus tests in primary schools. The Council offered to allow Y to sit his test slightly later than other pupils to prevent him from becoming overwhelmed with the number of people entering the venue at the same time.
Mrs X sent an email to officer 2, a senior officer, complaining that the Council had not offered any rationale for why it would not allow Y to sit the test at his primary school. She also complained she had not received a response to her emails and calls requesting an explanation.
Officer 1 sent an email to Mrs X explaining that testing could not take place at Y’s school as the Council had to put in its own stringent measures at each of the testing venues due to COVID-19. This would have to be repeated for each additional venue, such as primary schools, including carrying out individual risk assessments for each premises as well as for individual invigilators so its external testing team would be able to spend time on site. Officer 1 advised Mrs X that Y could visit the venue prior to the test so he could familiarise himself with the venue.
Officer 2 responded to Mrs X’s complaint. He explained the panel considered the adjustments made for Y were reasonable in light of his diagnoses. He noted Y had visited the test centre and a social story would be provided to explain the test arrangements. Office 2 said the Council would not be administering the tests at a child’s current school. This was because the situation was different to previous years and the Council had to be consistent in its approach.
Officer 2 apologised for the lack of communication from the Admissions Service and acknowledged this may have had a further impact on Y’s anxiety over the test.
Y visited the test centre in advance of the test date. Mrs X considers the Council’s decision not to allow him to take the test at his primary school had a detrimental effect on his performance in the test.
In November 2020 Mrs X requested her complaint be escalated to stage two of the Council’s complaints procedure. She considered the Council had used COVID-19 as an unnecessary barrier to meeting reasonable adjustments. She also considered the Council’s reasons for not allowing Y to sit the test at his primary school were illogical as primary schools had carried out risk assessments for operating during the pandemic.
The Council should have taken 30 days to respond to Mrs X’s stage two complaint. The Council responded in May 2021 which was a delay of five months. The Council has said the delay was caused by having to reallocate the complaint and staff sickness.
The conclusions of the stage two investigation included: The access arrangements panel considered the arrangements agreed for Y were reasonable; The explanations given for why Y could not sit the test at his primary school by officer 1 and in the stage one response were insufficient The letter explaining what reasonable adjustments had been made should have explained why Y’s school could not be used. Clear guidance should also have been given on how the reasonable adjustments would be made.
Consideration should have been given to children with special educational needs and disabilities who may be impacted by sitting the test at a different venue and information given on how that would be managed.
The stage two response made a number of recommendations. These included that the Council should provide a robust explanation for why Mrs X’s request for Y to sit the test at his primary school was refused and an apology for the poor handling of Mrs X’s queries and complaint. The investigation also recommended a number of service improvements including reviews of how transition to a new testing venue was managed for children with special educational needs and disabilities and of the information provided to parents regarding the testing arrangements. The Council indicated these recommendations would be considered as part of its review of the Admissions Service.
The Council did not send a letter to Mrs X explaining why her request for Y to sit the test at his primary school was refused and apologising for its poor communication. The Council has said this was an oversight and has provided a copy of the letter.
In response to my enquiries the Council has said that the pandemic related restrictions in place for schools during the autumn term 2020 did not make it feasible for testing to take place in the schools of individual applicants. The Council considers it put in place appropriate reasonable adjustments for Y.
The Council has acknowledged its response times in autumn 2020 were slower than usual due to severe pressure on the Admissions Service. It is undertaking a review of the Admissions Service and implementing a comprehensive improvement plan. The Council has said it has reviewed its correspondence it sends to parents.
Analysis Mrs X considers the Council did not meet its duty to make reasonable adjustments for Y as it would not allow him to sit his test at his primary school. The Council’s position is that it was not feasible for pupils to sit the tests at individual primary schools due to the measures required due to COVID-19. So, the Council is saying this was not an adjustment it could reasonably make. I acknowledge Mrs X disagrees with this decision as she believes primary schools could have accommodated the test. But the Council has given consideration to whether Y and others could sit the test at their primary schools and has explained its reasons why it could not agree to the request. I am therefore satisfied there is no fault in how the Council made its decision and I do not have grounds to question it.
The record of the panel’s decision shows it considered Mrs X’s requests for reasonable adjustments and agreed the majority of them. The panel agreed Y should visit the venue before the test and a social story be provided for him. So, on balance, I consider the panel had taken account of the impact of Y attending an unfamiliar venue when deciding what reasonable adjustments to make.
The Council has acknowledged its communication with Mrs X following the panel’s decision was poor. This caused distress to Mrs X and she did not know why her request for Y to sit his test at his primary school was refused. She also did not know what the specific arrangements were, including visiting the venue in advance. Mrs X was also caused avoidable time and trouble by having to chase the Council for a response to her questions about the test.
The Council took six months to respond to Mrs X’s stage two complaint. It should have taken 30 days. I am mindful that the delay was in part caused by officers’ ill health. But the delay of five months is excessive and is fault. The Council also failed to send the apology for its poor communication and explanation of why it did not allow Y to sit his test at his primary school. This is fault which will have caused frustration to Mrs X.
Agreed action
That the Council: Sends a written apology to Mrs X and makes a payment of £200 to acknowledge the distress, frustration and avoidable time and trouble caused to her by its poor communication, delay in responding to her stage two complaint and failure to send its explanation and apology following the stage two investigation.
Provides evidence of how the Council has improved its correspondence with parents/guardians explaining its decisions on requests for reasonable adjustments and how those reasonable adjustments will be met at the test venue.
The Council should take the action at a) and b) within one month of my final decision.
Final decision
Mrs X complains that the Council failed to make appropriate reasonable adjustments for her son when sitting the 11 plus test. There is no evidence of fault in how the Council made its decision on what reasonable adjustments it should make for Mrs X’s son. The Council is at fault in how it communicated with Mrs X and it delayed in dealing with her complaint which caused distress, frustration and avoidable time and trouble to Mrs X. The Council has agreed to remedy this injustice in an appropriate and proportionate way so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman