Summary: Mr C complained that the way the Council managed the waiting list for the school of his choice meant his child, B, lost out on a place. He wanted an independent appeal panel to consider this but felt it failed to properly appreciate the case he was making. I have found no evidence of fault by either the Council or the independent appeal panel. The Council has said it will ask applicants for proof of address when they apply for schools from 2022.

The complaint

1. The complainant, whom I shall call Mr C, says the actions of the Council in managing the waiting list for the school he applied for caused his child, B, to lose out on a place. The appeal panel failed to consider the points he had made appropriately.

Back to top

What I have investigated

2. I have investigated Mr C’s complaint about the actions of the Council in maintaining the waiting list and the admission appeal panel in considering his concerns about this.
3. Mr C suggested he wanted me to look at the waiting list set up after the statutory period had expired in December. I am not doing this and I explain why at the end of this Statement.

Back to top

The Ombudsman’s role and powers

4. 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”.
5. 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 the Council or 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 decisions were 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)
6. If we are satisfied with Council’s actions or proposed actions (and/or the independent appeal panel’s 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

7. I considered the information provided by Mr B with his complaint. I also spoke with him on the telephone.
8. I made enquiries of the Council and assessed its response. I accessed papers from the independent appeals panel. I looked at the actions of the Council in considering C’s admission and the admission appeal panel in considering Mr B’s appeal.
9. I sent Mr B and the Council 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

The School Admissions Code - applications

10. The School Admissions Code sets out how applications to schools are made and managed.
11. In the normal admissions round, parents apply to the Council where they live for places at their preferred schools. Applications can include schools outside the local authority where the child lives: a parent can apply for a place for their child at any state-funded school in any area. If a maintained school is undersubscribed, any parent that applies must be offered a place. When oversubscribed, the Council must rank applications in order against its published oversubscription criteria.
12. All preferences are collated and parents receive an offer from the Council at the highest preference school at which a place is available. For primary schools, the offer is made on or about 16 April, in the year in which the child will be admitted.
13. Parents, and in some circumstances children, have the right to appeal against an admission authority’s decision to refuse admission.

The School Admissions Code – Fair Access Protocols

14. Each local authority must have a Fair Access Protocol, agreed with the majority of schools in its area to ensure that – outside the normal admissions round - unplaced children, especially the most vulnerable, are offered a place at a suitable school as quickly as possible.

The School Admissions Code – waiting lists

15. Each admission authority must maintain a clear, fair and objective waiting list until at least 31 December of each school year of admission, stating in their arrangements that each added child will require the list to be ranked again in line with the published oversubscription criteria. Priority must not be given to children based on the date their application was received or their name was added to the list. Looked after children, previously looked after children, and those allocated a place at the school in accordance with a Fair Access Protocol, must take precedence over those on a waiting list.

The School Admissions Code – withdrawing offers

16. An admission authority must not withdraw an offer unless it has been offered in error, a parent has not responded within a reasonable period of time, or it is established that the offer was obtained through a fraudulent or intentionally misleading application.
17. Where an offer is withdrawn on the basis of misleading information, the application must be considered afresh, and a right of appeal offered if an offer is refused.

The School Admissions Appeals Code

18. Statutory guidance about appeals can be found in the School Admission Appeals Code.
19. 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 earlier regulations and will be in force until 30 September 2021.
20. It is normally the function of the admission appeals panel to consider whether the Council has interpreted the Admissions Code correctly. However, as the allegation is that the Council did not do so, we are considering both Codes here.
21. There are very limited grounds for an infant class size appeal to be accepted. The panel can only consider:

• 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.

What happened

22. Mr B made an on-time application for C for a place at his local school. C had attended the attached nursery and a sibling had attended the school. Mrs B, C’s mother, was a member of staff and a school governor.
23. All the 60 places for September 2020 in reception were allocated under the published admission criteria. The last place went to an applicant who lived closer to the school than C. The Council allocated C a place at a different school, which was less than a mile from his home.
24. C was placed on the waiting list. He was ranked at number 5. Children on the waiting list, as the Admission Code says, cannot be ranked by date order in which their applications are received. Therefore, any child applying later than C but living nearer, would be placed above C on the list. If they wanted a place at the school, any looked after, or previously looked after, children would be placed above C on the list no matter where they lived. Any children entering the school under a Fair Access Protocol would also enter before C. Lists are dynamic so although children might initially be placed high on the waiting list; they do not necessarily stay high on the list.
25. The Council was aware that details of certain children, who had been offered places at the school, were fraudulent in that the child was not living at the given address at the time of application. It investigated and then withdrew those places and gave them to other children on the waiting list. Where appropriate, where children had places removed but then subsequently moved house to the area, they were placed back on the waiting list.
26. Mr B felt C had missed out on a place because the opportunity for parents to validate their address details had been extended due to COVID-19. Further, he believed C missed out on a place because people using fraudulent details had then validated their information and been placed above C on the waiting list, which he thought was unfair.
27. Mr B appealed the decision not to award a place at the school for C, to an Independent Appeal Panel. It considered the case in August 2020 by video conference, which changed to a telephone conference as one attendee could not connect by video.
28. Mr B attended with C’s mother, Mrs B, along with a representative. Mr B appealed because:

• C had attended the attached nursery and was settled;
• The family had close links with the school;
• The distance calculations were inaccurate;
• They believed other parents had lied on their application to get a place.

29. The Appeal Panel refused Mr B’s appeal and he complained to us. He said the Panel:

• were prejudiced against the family;
• could have upheld the appeal so B would have been an excepted pupil for the infant class size limit; and,
• failed to properly sign the decision letter.

What should have happened

Admission

30. C was not given a place at the school as he lived too far away. The measurements used are the same for every child in the Council’s area. As Mr B was unhappy, he was able to bring this up at appeal, which he did. After failing to get a place, C was correctly put on the waiting list for the school.
31. The Council heard appeals for entry to the school. It told me two appeals were successful. This meant the school was above its planned admission number. Even when children leave, the Council does not have to offer places until the school is under its planned admission number.
32. The Council has shown me that it identified and checked potential fraudulent applications and offers before the school year started in September. There is no evidence of fault in it doing so even though Mr B says it previously did this in 4 weeks but was, though COVID-19, allowing families thirteen weeks to prove their addresses. The Council has also provided reasons as to why some of the cases were extremely difficult to resolve. I am not sharing that with Mr B because of the information it contains, which could identify children. The Council has explained to me how the waiting list changed over time and how and when vacant places were allocated and to whom. It is not fault for the Council to seek proof of validation of address before term start and to allow thirteen weeks for families to do this. The government’s website comments that parents might need to “supply proof of your new address, for example a mortgage or rental agreement or deeds for the property (or) prove that you’ll live in the area before the start of the next school term”. I appreciate Mr B thought the Council could and should have been quicker at validating the information but it did not act with fault. In its response to my enquiries, the Council has said that from 2022 it will ask for proof of address from parents at application.
33. Although Mr B is unhappy that applicants, who had given fraudulent addresses, were then able to reapply and be put on the waiting list, this is in line with the requirements in the Admissions Code. In addition, I am satisfied, on the basis of the evidence that I have seen, that C did not lose a place as a result of the Council’s actions in managing the list.

Appeal

34. The Council clearly told Mr B before the appeal the place had been refused because of the Infant Class Size rules. It also clearly explained what this meant.
35. The Appeal Panel decided that admitting another child would breach the infant class limit for the school year 2020/21. There will be 30 pupils per teacher. A school can only admit more than 30 pupils per teacher if the extra pupils are classified as excepted pupils. B does not meet the criteria as an excepted pupil.
36. This is because B could become an excepted pupil if the Appeal Panel granted the appeal. But it would only do that if the criteria in paragraph 20 above were satisfied.
37. The Appeal Panel considered the admission arrangements and decided they complied with the law.
38. The Appeal Panel was also satisfied that the admission arrangements had been properly applied in this case. There was a comparatively long detailed discussion both on how distances are measured and the detection of fraud. Mr B was unhappy the Council checked the measurement for his address but not for others on the waiting list – this is because he could only make his own complaint. It is not fault the Council did not re-check other people’s measurements on this basis.
39. Mr B told the panel other parents had made fraudulent applications but he would have needed to tell the Council who these parents were so it could investigate. The panel would not be in a position to do that. Also, the panel could not discuss how the waiting list was administered as this was outside its role.
40. The Appeal Panel’s decision letter records the reasons Mr B presented at the Appeal Panel for wanting a place. It is clear the Appeal Panel considered Mr B’s reasons for wanting a place and decided the decision to refuse a place was one which a reasonable authority would have made in the circumstances and in light of the admission arrangements. The letter not being signed correctly is not significant enough to make a finding of fault. This has not caused Mr X any injustice. I can see no evidence of bias, although I accept this was what Mr B felt.
41. There is no evidence the appeal panel acted with fault.

Back to top

Final decision

42. There is no evidence of fault by the Council or by the appeal panel.

Back to top

Parts of the complaint that I did not investigate

43. I have not considered the actions of the Council in considering applications after the ending of the waiting list in December. This is because it postdates the complaint made to us by Mr B.

Back to top

Investigator's decision on behalf of the Ombudsman