The Ombudsman's final decision
Summary: Ms X complained the Council’s school admissions appeal failed to properly consider her case when he appealed the refusal of a school place at a local school. The Council was not at fault in how it considered Ms X’s appeal. However, the decision letter contained incorrect information which is fault. The Council agreed to amend the letter to prevent future fault.
The complaint
Ms X complained the Council’s school admissions appeal failed to properly consider her case when he appealed the refusal of a school place at a local school.
Ms X says this has caused her distress and her child is nervous about going to the school because they had no friends there.
The Ombudsman’s role and powers
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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
We considered the information provided by Ms X about her complaint.
We made enquiries of the Council and considered the information it provided. This included Ms X’s application and the notes made by the clerk to the panel. We also spoke to the clerk and the panel chair.
Ms X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.
What I found
School admissions and appeals Statutory guidance about school admissions and appeals can be found in The School Admissions Code and School Admission Appeals Code. Both are published by the Department for Education.
Parents and carers have the right to appeal an admission authority’s decision not to offer their child a school place. An independent appeal panel decides the appeal.
A clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
Appeal panels must either uphold or dismiss an appeal and must not uphold an appeal subject to any conditions. Appeals must be decided by a simple majority of votes cast. A panel’s decision is binding on the admission authority.
In 2020, the government introduced emergency regulations because of the COVID-19 pandemic. These temporarily amended the existing regulations. (School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020).
The emergency regulations allow appeals to be conducted using ‘remote access’ (such as telephone conference or video calling), as opposed to in-person hearings. Under these regulations, appeals can all be held entirely by written submissions. However, the accompanying guidance states this should only be allowed when it is not ‘reasonably practicable’ to hold an appeal in-person, because of issues relating to COVID-19.
Following an appeal, the clerk writes to the parents with the Panel’s decision. The Appeals Code sets out what information this letter should include to ensure the parent understands how and why the decision was made.
Infant class size appeals The law says the size of an infant class (Reception, Years 1 and 2) must not be more than 30 pupils per teacher. The number in each class can be set at less than 30. This is often to prevent later classes from being over-subscribed. This is called the published admission number (PAN).
There are special rules governing appeals for infant classes. These appeals are known as infant class size (ICS) appeals and say that the panel must consider whether: admitting another child would breach the class size limit; the admission arrangements comply with the law; the admission arrangements were properly applied to the case; and the decision to refuse a place was one which a reasonable authority would have made in the circumstances.
What is “unreasonable” is a high test. The panel needs to be sure that to refuse a place was “perverse” or “outrageous”. For that reason, panels rarely find an admission authority’s decision to be unreasonable.
What happened Ms X’s child is of reception age and was due to start school in September 2022. Her child was offered a place at School C and refused a place at her preferred school (School D) and so she appealed.
The published admission number for reception year at School D is 75. This equates to three classes of 25 pupils. Years 1 and 2 have an overall PAN of 150 pupils who are taught within five classes (two Year 1 classes, two Year 2 classes and 1 mixed age class).
Ms X had to select how she would like her appeal to be heard. Her options were via video conference, telephone conference or based on written information. Ms X selected telephone conference and submitted written information setting out her case for why her child should be admitted to School D. Her case was based on the distance of School C from her home and the fact School D was closer. Ms X explained that the family moved after the closing date for applications and they now lived closer to School D. Ms X said she had told the Council the family would be moving.
School D presented its case. It stated it was one pupil over its published admission number. In Ms X’s case, there were no special grounds for exceeding the published admission number further. The school said to admit further pupils would prejudice the provision of efficient education and use of resources for the existing pupils. It provided details of why this would be the case.
The clerk’s notes demonstrated both sides were able to put their cases and there was an opportunity for questions. With regard to the decision, the notes stated “The admission requirements fairly applied”. The voting was recorded as three ‘No’ votes.
The Council wrote to Ms X. The letter explained in detail why the school’s admissions criteria complied with the law, were properly applied in Ms X’s and why it considered the admission of an additional child would prejudice the education of others. The Council signposted Ms X to the Education Funding Agency if she wished to complain about its decision.
Ms X remained unhappy and complained.
In its response to my enquiries the Council told me that before the admissions appeals process began it consulted with the pool of people who sat on the appeals panel. Because many of them were vulnerable and said they would be willing to take part in the hearings if they were in-person, the Council made the decision to hold the appeals virtually. The Council also felt it would be more equitable to apply this to all the appeals.
My findings
How the appeal was held The emergency COVID-19 regulations state that the amended provisions for holding remote appeal hearings can only be made when it would not be reasonably practicable to hold an in-person hearing.
The Council has provided information to demonstrate it considered how appeals should be held in light of the pandemic. The decision it made to conduct appeals remotely was made without fault.
Appeal panel procedures A clerk must take an accurate record of the hearing, including the reasons for decisions.
The clerk’s notes were brief, particularly in relation to the reasons why the Panel reached its decision. However, the decision letter to Mrs X provides additional details and these are sufficient to provide an explanation. In addition, the conversation with the clerk and the panel chair demonstrated the panel considered each of the factors in paragraph 17 above. There was no fault in the Council’s actions.
The Council told Ms X to complain to the Education Funding Agency if she was unhappy with the appeal. This information was wrong and is fault. The Council should have advised her to complain to us. However, Ms X did not experience any injustice because she was later signposted to us to complain.
Agreed actions
Within one month of the date of the final decision the Council agreed to review its procedures and letter templates to ensure it correctly signposts parents/carers to the Ombudsman if they wish to complain about their school admissions appeal.
Final decision
The Council was at fault when it wrongly advised Ms X to complain to the Education Funding Agency and not the Ombudsman although this did not cause an injustice. The Council agreed to carry out service improvements therefore I completed my investigation.
Investigator's decision on behalf of the Ombudsman