Summary: Mr B complained the Council did not carry out his son’s school admissions appeal correctly. Mr B complained the Council did not give his son a place at the same school as his sibling and this caused the family distress and inconvenience. The Council delayed sending notice of the hearing but there was no fault with the hearing itself. The Council’s fault did not cause Mr B significant injustice.

The complaint

1. Mr B complained the Council did not carry out his son’s school admissions appeal correctly. Mr B complained the Council did not give his son a place at the same school as his sibling and this caused the family distress and inconvenience.

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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. 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)
4. 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)

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How I considered this complaint

5. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
6. Mr B and the Council had the opportunity to comment on a draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

7. 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. In this case, the Council was the admissions authority.
8. In 2020 emergency regulations were introduced because of COVID-19 called the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the 2020 regulations). They temporarily amend the 2012 regulations and will be in force until 31 January 2021.
9. Outlined below are key points from the School Admissions Code and School Admission Appeals Code. Where the emergency regulations introduced or mandated a temporary change to the admission appeal rules, it is identified.
10. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.
11. Appeal hearings must be held in private and conducted in the presence of all panel members and parties. Appeal panels must act according to the principles of natural justice.
12. The emergency regulations require the admission authority to give appellants at least 14 calendar days’ written notice of an appeal hearing (although appellants may waive their right to this in writing).
13. A clerk supports the appeal panel. Parents can submit information in support of their appeal. The clerk must send all papers required for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority.
14. The admission authority must provide a presenting officer at the hearing to explain the decision not to admit the child and to answer questions from the appellant and panel.
15. The 2012 guidance says appeal panels must allow appellants the opportunity to appear in person and present their case. The 2020 emergency regulations state that where face-to-face hearings cannot not take place, they should be conducted by telephone or video conference. The appeal panel can decide to hold the hearing remotely if they are satisfied that:
• the parties will be able to present their cases fully
• each participant has access to video or telephone facilities allowing them to engage in the hearing at all time
• the appeal hearing is capable of being heard fairly and transparently in this way
16. The School Standards and Framework Act limits the size of infant classes (a class in which most of the children will reach the age of 5, 6 or 7 during the school year) to 30 pupils per teacher. Additional children may be admitted under limited exceptional circumstances. These include where the school is named in a child’s Education, Health and Care (EHC) plan or the child is a twin. The Appeals Code refers to these as Infant Class Size (ICS) appeals. Panels can only uphold these appeals in limited circumstances.
17. Admission authorities must provide parents with information on the limited circumstances in which an infant class size appeal can be upheld so they can make an informed decision about whether to submit an appeal.
18. Panels must follow the two-stage decision making process below when considering infant class size appeals.
19. At stage one, the panel must consider all the following matters:
• whether the admission of an additional child/additional children would breach the infant class size limit;
• whether the admission arrangements (including the area’s co-ordinated admission arrangements) complied with the mandatory requirements of the School Admissions Code and Part 3 of the School Standards and Framework Act 1998;
• whether the admission arrangements were correctly and impartially applied in the case(s) in question; and
• whether the decision to refuse admission was one which a reasonable admission authority would have made in the circumstances of the case.
20. At stage two, the panel must compare each appellant’s case for their child to be admitted and decide which of them, if any, to uphold.
21. 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.
22. The clerk to the panel must write to the appellant, the admission authority and the local authority with its decision and the reasons for it within seven calendar days of the hearing.

Council policy

If the Council receives more applications for a school than there are places, it will prioritise places in the following order:

• 1. Children in Care or previously in Care
• 2. Catchment Area with Sibling
• 3. Catchment Area
• 4. Siblings of children previously refused a place at their catchment school
• 5. Siblings
• 6. Other applications
1. For Infant Class Size appeals, the panel will only consider the reasons given in the child’s original application.
2. The Council will treat changes made to a child’s application after the 31 January 2020 as late and consider them after the national offer day.
3. What happened
4. Mr B and Ms C have two sons D and E. D has Down’s syndrome.
5. In November 2019 Ms C, made an application for a reception school place for E for September 2020. Ms C’s preferred school was School 1, her second preference was School 2. Ms C explained School 1 was near to her home and, D, attended the school.
6. The Council based School 2’s allocations on the applicants circumstances on 31 January 2020. On this date, D did not have a place at School 2. The Council awarded 61 children places at School 2, the 61st was a twin. E was in the “other application” category for School 2 and the Council did not award him a place.
7. School 2 was named in D’s Education, Health and Care (EHC) plan in March and confirmed in April 2020.
8. In April, the Council wrote to Ms C. It explained E’s applications to School 1 and 2 were unsuccessful and it had given him a place at School 3.
9. Ms C appealed against the decision not to offer E a place at School 2 in May 2020. In her appeal documents she said D now attended School 2. She explained E was less than a year younger than D and she wanted them educated together at the same school. She told the Council D had an EHC plan and E supported him socially and educationally. She advised if D and E attended different schools, because she had to take them both to school, one would be late.
10. The Council emailed Ms C to acknowledge receipt of her appeal form. It explained the different ways it could conduct the appeal hearing, asked her for her preference and whether she wanted anyone else to attend. The Council’s records show Ms C said she would prefer either a video or telephone hearing.
11. The Council sent Ms C a letter on the 10 July giving the date and time of her appeal. It enclosed the appeal pack and video hearing protocol. It said appeals would not be face to face and it expected the first stage to be based on written submissions. It asked Ms C to send questions for the school representative by 16 July.
12. Included in the appeal pack was a statement by the Council which outlined the legal framework for admissions and infant class size restriction. School 2 has two reception classes. The Council explained, on national offer day it offered 61 children a place at School 2; the 61st child was a twin. Since national offer day, it had also given two children with EHC plans places. The Council said it was of the view no further pupils could be admitted to the reception classes at School 2. It said to do so would cause prejudice to other students and breach the Infant Class Size limit.
13. Ms B emailed the Council on 13 July to say D had a place at School 2 and she hoped her children could attend the same school.
14. The panel members met with the appeal clerk on 17 July to decide how it would conduct each appeal for School 2. The panel decided to hold the appeal hearings by video. The Council sent invites for the video hearings to appellants.
15. The Council held D’s appeal hearing on 20 July. His hearing was attended by Ms C, a representative for the Council, the Clerk and three panel members. The Council’s representative made his case then the panel and Ms C had the opportunity to ask questions. Ms C presented her case and answered the panel’s questions.
16. The panel decided:
• School 2 had reached the maximum number of children legally allowed in its infant classes and did not have space or resources to increase the number of infant classes from two to three.
• the admission arrangements complied with the mandatory provisions in the guidance and the School Standards and Framework Act 1998 and they had been correctly and impartially applied.
17. The panel considered the fact E’s older brother D was going to attend School 2 and having two children at different schools would be difficult for Ms C. By a majority it decided the Council’s decision not to admit E into School 2 was not so unreasonable that it could be described as perverse.
18. The Council sent Ms C a decision letter on 27 July. It said her appeal had not been upheld and explained why.

Analysis

41. The emergency regulations required the Council to give appellants at least 14 calendar days’ written notice of an appeal hearing. The Council gave Ms C ten calendar days, fewer than the number required which was fault. However, I do not consider this fault caused Mr B, Ms C or D significant injustice.
42. The Council carried out the Infant Class Size (ICS) appeal hearing in line with the School Admissions Code, School Admission Appeals Code and School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the 2020 regulations). The panel was entitled to come to its own judgment about the evidence it heard and not to uphold D’s appeal for a place at School 2. I cannot question the merits of decisions properly taken.

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Final decision

43. I have completed my investigation and uphold Mr B's complaint. There was fault by the Council. This fault was not considered to have caused Mr B, Ms C or E significant injustice.

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Investigator's decision on behalf of the Ombudsman