Summary: Miss B complained her appeal for a place for her daughter at School 1 was unsuccessful. She said the Council offered her daughter a place at School 2, some distance away, and because her daughter was not of compulsory school-age it would not offer school transport. Miss B said C was not able to attend School 2 and this affected her social and academic development. We found fault with the Council for failing to record its decision not to hold appeals by telephone or video conference. The Council has since offered C a place at School 1 which remedied any injustice to C and Miss B.

The complaint

1. Miss B complained her appeal for a place for her daughter at School 1 was unsuccessful. She said the Council offered her daughter a place at School 2, some distance away, and because her daughter was not of compulsory school age it would not offer school transport.
2. Miss B said C was not able to attend School 2 and this affected her social and academic development.

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The Ombudsman’s role and powers

3. 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)
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:
• Miss B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
6. Miss B and the Council had an opportunity to comment on two draft decisions. I considered their comments before making a final decision.

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What I found

Legislation and guidance

7. The Education Act 1996 states a child reaches compulsory school age on the prescribed day following his or her fifth birthday. The prescribed days are 31 December, 31 March and 31 August.
8. 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 a teacher. The Appeals Code refers to these as infant class size (ICS) appeals. Panels can only uphold these appeals in limited circumstances.
9. 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.
10. Where an appeal only involves one child, the panel examines the decision to refuse admission. The Appeals Code says in an ICS appeal the panel must consider:
• whether the admission of an additional child or children would breach the infant class size limit;
• whether the 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 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.
11. What is ‘reasonable’ 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.
12. In limited circumstances, children can be admitted as exceptions to ICS limit. These exceptions include children of compulsory school-age who move into the area outside the normal admissions round for whom there is no other available school within reasonable distance.
13. ICS appeals also applies where admitting a further child would lead to a breach of the infant class size limit in future years. This applied to Miss B’s appeal.
14. The clerk to the panel must write to the appellant, the admission authority and the council with the panel’s decision and reasons.
15. Children can start school in the September following their fourth birthday, but they are not of compulsory school-age until the prescribed day following their fifth birthday. In this case, the Council is the admissions authority.

COVID-19 amendments

16. In April 2020, the government temporarily amended the School Admission Appeals Code (the Appeals Code) and the School Admissions (Appeals Arrangements) (England) Regulations 2012 (the 2012 regulations) because of COVID-19. The temporary regulations were extended on 31 January 2021 until 30 September 2021. The temporary regulations were extended again to 30 September 2022.
17. Outlined below are key points from the School Admissions Code and School Admission Appeals Code. Where the emergency regulations introduced a temporary change to the admission appeal rules, it is identified.
18. Panels must allow appellants the opportunity to appear in person and present their case. The amended regulations state that where face-to-face hearings cannot 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:
• the parties will be able to present their case in full;
• each participant has access to video or telephone facilities allowing them to engage in the hearing throughout; and
• the appeal hearing can be heard fairly and transparently.
19. Where this is not possible, appeals can be conducted on written submissions. For the panel to decide which is fair and transparent, they must ensure the parties are able to fully present their case by way of written submissions. The emergency guidance suggests in these circumstances the admissions authority follow this process:
• The clerk should contact the appellant and presenting officer, in line with the amended timetable. The presenting officer should be provided with a copy of the appeal lodged and asked to submit the admission authority’s arguments and evidence; the appellant should be given the chance to submit additional evidence if they wish. All submissions should be in writing.
• The panel and clerk should meet by telephone or video conference to consider the submissions and draw up questions for the appellant and presenting officer. The aim should be to clarify points made and solicit further relevant information. They should bear in mind that appellants may be less familiar with the kind of information and arguments that are required and may have less experience preparing written submissions.
• The clerk should send the questions and all the papers to each of the parties.
• Both parties should reply with answers to the questions, and any further points they wish to make. On receipt, the clerk should send each party’s submission to the other party. The parties should be told any information or evidence not submitted by the relevant deadline might not be considered in the appeal panel’s decision.
• The panel should meet by telephone or video conference, with the clerk, to consider all the information and reach a decision in the same way as prescribed in the Appeals Code.
20. The amended regulations state that decision letters should be sent within seven calendar days of the hearing or, in the case of an appeal conducted based on written submissions only, within seven calendar days of the appeal panel making their decision, wherever possible.

In May 2020, the Ombudsman issued guidance for Councils, ‘good administrative practice during the response to Covid 19’. This guidance stated that basic record keeping was vital during crisis working. It advised there should always be a clear audit trail of how and why decisions were made, particularly summarising reasons for departing from normal practice.

What happened

21. This chronology includes key events in this case and does not cover everything that happened.
22. When the government introduced temporary changes to the school admissions appeal arrangements in April 2020, the Council reviewed its appeal arrangements and decided to hold them by written submissions. The Council recorded and justified its decision making. In January 2021, the government extended the temporary changes.
23. Miss B moved into the Council area and made an in-year application for a reception class place for C at the nearest primary school, School 1. School 1 was less than a mile from their new home. In March 2021, School 1 said it could not offer C a place because it had reached its admission limit in C’s year group.
24. The Council gave C a place at School 2, this was around four miles from their home.
25. Miss B made an in-year infant class size appeal. She said she was disabled, could not drive, and could not walk her child to and from School 2 each day.
26. The Council told Miss B it would hold the appeal on 17 May 2021. It said appeals would be considered on written submissions because panel members did not have the means to attend hearings using video technology. It asked her to submit additional evidence by 24 April 2021. It said she would receive the appeal papers 21 days before the appeal hearing and that she would have until the 2 May 2021 to submit any questions. It advised her to contact the Council if she had a disability that would make it difficult to provide a written submission. The Council enclosed information about infant class size appeals.
27. On 24 April 2021, the Council sent a copy of the appeal papers to Miss B.
28. In the Council’s statement it said:
• School 1’s reception class was full. The published admission number (PAN) was 90 and there were 90 children on roll.
• C did not qualify for excepted pupil status. There was a place available for the appellant’s child at another local school.
• There was no error in the application of the admission arrangements.
29. Miss B gave the Council information to support her appeal on 26 April 2021. She confirmed her new address. She said it would be impossible for her to get C to School 2 because she was unable to drive due to a disability, and there was no direct public transport link to the school. Miss B explained being out of school was affecting C’s confidence.
30. On 3 May 2021, the Council sent Miss B questions from it as the admissions authority and the panel. The panel asked Miss B for medical evidence and about C’s journey to School 2. The Council asked Miss B if she had applied for any other schools and if she had spoken to the Home to School Transport Team about school transport. Miss B did not respond.
31. The panel met virtually using Microsoft Teams. It decided:
• the admission of an additional child would breach the infant class size limit;
• the admission arrangements complied with the School Admissions Code and Part 3 of the School Standards and Framework Act 1998; and
• the admission arrangements had been correctly and impartially applied.
32. The panel then considered Miss B’s case:
• It was difficult to get C to School 2.
• There was not a safe walking route to School 2.
• C was not eligible for school transport until September 2021.
33. The panel noted the “regulations don’t tie up – admitted to sch but no transport as rising 5. Leaves parent unable to get her to school”. The panel unanimously decided C was not an excepted pupil. C was not an excepted pupil because she was not of compulsory school-age.
34. The Council sent Miss B the result of her appeal on 18 May. It summarised the factors the panel considered. It said the panel found no evidence there was a mistake in the admission arrangements. It advised the panel decided it was not unreasonable for the Council to have refused C admission to School 1.
35. The Council told Miss B because C was not of statutory school-age, she was not eligible for school transport to School 2. It told her to contact its Home to School Transport Team to discuss her situation. The Council has no record of Miss B approaching the Home to School Transport Team.

Response to enquiries

36. The Council said it reviewed its appeal procedure in response to the COVID-19 restrictions in April 2020 and carried out a light touch review at the beginning of 2021. The Council said it found the proportion of Clerks and panel members with appropriate equipment and facilities to be able to conduct a hearing by video or telephone conference was too small to enable all appeals to be conducted using these methods within the prescribed timescales. The Council did not record its decision making.
37. A place became available at School 1 and it was offered to C.
38. In July 2021, the Council decided to resume in-person hearings with effect from September 2021.

Analysis

39. In January 2021, the temporary changes to the school admissions appeal arrangements were extended. At this point, the Council should have reviewed its appeal arrangements to consider whether it could hold in-person appeals or appeals by video or telephone conferencing. The Council said it reviewed its appeal arrangements in April 2021 but did not record its decision making, this was fault. Failure to keep records of procedural decision making was poor administrative practice.
40. C’s panel met virtually using Microsoft Teams. The Council said this was not an appeal hearing. It said it did not invite Miss B to attend a hearing virtually because other parents had not been offered this option and holding them all by written submission ensured fairness and consistency of experience. Miss B’s appeal was an in-year appeal and did not affect other children. As C’s was the only appeal being heard and the panel members all met virtually, the Council should have given Miss B the opportunity to have a virtual hearing. The Council could not provide a robust justification for offering Miss B a virtual hearing and therefore not doing so was fault. The Council has since C a place at School 1 remedying any injustice caused by this fault.
41. It is positive the Council decided to resume in-person hearings with effect from September 2021.

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Agreed action

42. Within one month of the final decision, the Council will remind relevant school admission appeal officers of the importance of recording procedural decisions.
43. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

44. I have completed my investigation and uphold Miss B’s complaint. There was fault by the Council which caused injustice to Miss B. I am satisfied the Council has taken action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman