Norfolk County Council (20 004 397)

Category : Education > COVID-19

Decision : Upheld

Decision date : 04 Dec 2020

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 upset. The Council has agreed to offer a fresh appeal.

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.

Back to top

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)

Back to top

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.

Back to top

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. In multiple appeals where a number of children would have been offered a place, the panel must compare each appellant’s case for their child to be admitted and decide which of them, if any, to uphold. Where the school could admit a certain number of children without breaching the infant class size limit (or without needing to take measures to avoid breaching it that would prejudice the provision of efficient education or efficient use of resources) the panel must uphold the appeals of at least that number of children at stage two.
  9. The panel can consider infant class size prejudice in the year the appeal is for but also future infant class size prejudice (if classes become joined later).
  10. I am considering Miss Q’s appeal in the light of the 2012 and 2020 appeals guidance.

Miss Q’s appeal

  1. Miss Q applied for a reception place for her daughter. She was unsuccessful in obtaining a place so exercised her rights to appeal the decision. Miss Q expected the Council to send her a letter within 40 school days of the deadline for seeking an appeal but the Council did not do so. The 2020 regulations suggest the Council should hear appeals as soon as possible but does not tie Councils to the timescales specified in the 2012 regulations. The appeal was heard on the last day of the school term. Because of this flexibility, I am not finding the Council at fault.
  2. Miss Q is unhappy that a Council officer submitted details of emails about where the family lived with the panel. She says he told the family he would not circulate them. I am not finding fault. The correspondence pointed out Miss Q did live in a different county (despite being located so close to the school) and the panel would have been aware that this was an out-of-county appeal.
  3. We would expect Stage One of appeals to be held with all appellants present. I have evidence to show that although appellants were invited none attended. I am not finding the Council at fault for this as appellants are able to make their own decisions whether to attend or not.
  4. The panel decided that although there was not infant class size prejudice for this year in reception, there would be future infant class size prejudice. The admission number for the reception class was 45 and once those children moved through the school into year 1, they would join a year 2 class of 45 meaning there would be three classes of 30 children. However, from the figures presented by the school, there were 44 children going into the current year 1. The panel did not challenge this. It is not clear, then, that infant class size prejudice would affect the class when it became a mixed year 1 and 2 class.
  5. The panel could still have decided there would be future prejudice. But it did not discuss this specifically. I am finding it at fault for this. It may have been that a child could have been accepted following the appeal.
  6. At stage two, Miss Q said she had bought her house on the basis it was in catchment for the school. The panel considered this but concluded the admission arrangements had been applied properly. Miss Q acknowledged she paid council tax to a different county to that where the school was located even though it was extremely close to her home address (and in the same village). She also explained she had to take other children to that school and would be significantly disadvantaged if her daughter did not get a place; particularly as she was a key worker. Because the panel had identified future class size prejudice if another child was admitted, it could not allow her appeal.
  7. It sent her a letter explaining this following the appeal. The letter appropriately outlined hers and the school’s case and was sent in a timely way. There is no evidence of fault.

Agreed action

  1. The Council has agreed to hold a fresh appeal with a new panel and clerk for Miss Q and the other appellants whose cases were heard on that day should they wish. This will use the figures presented to the first panel to put Miss Q (and the other appellants) back in the position they would have been but for the panel’s fault. The Council is asked to arrange this within a month of the date of my decision.

Back to top

Final decision

  1. Evidence of fault and a fresh appeal has been agreed.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.