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North Tyneside Metropolitan Borough Council (20 004 297)

Category : Education > COVID-19

Decision : Not upheld

Decision date : 06 Jan 2021

The Ombudsman's final decision:

Summary: Miss Q complained an independent appeals panel had failed to properly consider her appeal for a school place for her daughter, R. This had caused the family significant distress. The investigation found no evidence of fault.

The complaint

  1. The complainant, whom I shall call Miss Q, complains there was fault in the way the admission appeals panel considered her appeal for her daughter, R.

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The Ombudsman’s role and powers

  1. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether authorities followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
  4. If we are satisfied with an independent school appeal panel’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

  1. I considered the information Miss Q provided with her complaint and spoke to her on the telephone. I made enquiries of the Council and assessed its response. I sent the Council and Mrs Q a copy of my draft decision in order to take any comments they made into account before issuing a decision.

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What I found

Relevant guidance

  1. Statutory guidance about school admissions and appeals can be found in the School Admissions Code and the School Admission Appeals Code (2012). Both are published by the Department for Education.
  2. The statutory guidance highlights that a parent or guardian is able to make an application for their child to attend any school in any county. However, this application must be made through the Council where the child lives. If a parent or guardian has any concerns about the admission process, they can highlight it to the independent panel hearing their admission appeal.
  3. In 2020 emergency regulations were introduced because of COVID-19. These are the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the 2020 regulations). They temporarily amend parts of the 2012 regulations and will be in force until 31 January 2021.
  4. The 2012 regulations say that 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:
      1. the parties will be able to present their cases fully
      2. each participant has access to video or telephone facilities allowing them to engage in the hearing at all times
      3. the appeal hearing is capable of being heard fairly and transparently in this way
  5. Where this is not possible, the 2020 guidance says appeals can be conducted entirely based on written submissions. For the panel to make a decision which is fair and transparent, they must ensure that the parties are able to fully present their case by way of written submissions.
  6. The structure of appeals is set out in the 2012 Code. Where someone is trying to get a place in an infant class, the panel must consider all the following matters at stage one in front of all appellants:
      1. whether the admission of an additional child/additional children would breach the infant class size limit;
      2. 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;
      3. whether the admission arrangements were correctly and impartially applied in the case(s) in question; and,
      4. whether the decision to refuse admission was one which a reasonable admission authority would have made in the circumstances of the case.
  7. The panel can only uphold the appeal at the first stage where it finds that the admission of additional children would not breach the infant class size limit of 30 children per class with a qualified teacher; or that the admission arrangements did not comply with admissions law or were not correctly and impartially applied (and the child would have been offered a place if the arrangements had complied or had been correctly and impartially applied); or it decides that the decision to refuse admission was not one which a reasonable admission authority would have made in the circumstances of the case. Because there can only be 30 children in an infant class, it is very difficult for parents to challenge once places have been allocated.
  8. Attendance at a nursery does not guarantee a place at a linked school.
  9. I am considering Miss Q’s appeal in the light of the 2012 and 2020 appeals guidance.

Miss Q’s application

  1. Miss Q had applied for a place for R at the nearest school to where R’s grandparents live.
  2. Miss Q is disabled and is cared for partly by her parents. R stays with her grandparents in the school week and returns home on the weekends and for holidays. The nursery R attended, that her grandparents walked her to each day, was next to the school Miss Q applied for.
  3. Miss Q applied from her home address. She explained on the form that R stayed with her grandparents in the school week, which is why she was applying to that school. She gave their address. Miss Q did not get a place for R because she lived 2.76 miles away from the school. R was given a place at her catchment school.
  4. Because the Council turned R down for a place, Miss Q had the right to go to an appeal where an independent admissions appeals panel would hear her case.

Miss Q’s appeal

  1. The Council decided to hold written appeals only. It considered this was fairer because some people might not have access to technology. This was a decision the Council was able to make and it is not at fault for doing so.
  2. The panel identified from the school’s case that it was full. Any additional pupils would exceed the infant class size.
  3. Miss Q argued at appeal that the decision to refuse R a place was wrong. She said R should have a place as she lived so close to the school in termtime.
  4. The appeal panel asked how admission had been considered; the Council said a care order would be appropriate to show who had parental responsibility. Miss Q has parental responsibility, which is not affected by R living at her grandparents’ house. The council’s admission arrangements say they consider the address that child benefit is claimed at. This is also at Miss Q’s house.
  5. The Admissions Code agrees that admissions criteria must have an allowance or way to take into account shared care. I can see evidence the panel asked whether there was anything official to clarify R lived with Miss Q’s parents in termtime. Although Miss Q presented a letter from her doctor showing her care needs, this did not explain either her or R’s living situation. Miss Q said the nursery R attended understood R’s living arrangements but they did not submit a letter to explain this for the panel.
  6. Because there was no evidence that R lived with her grandparents, the independent appeal panel did not consider the Council acted with fault in not giving her a place at the school.
  7. Although I understand Miss Q feels the process was unfair, evidence showing where a child lived would always be necessary for school admissions purposes.

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Final decision

  1. There is no evidence of fault.

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Investigator's decision on behalf of the Ombudsman

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