Summary: There was no fault in the way the Council handled Mrs X’s school admissions appeal.

The complaint

1. Mrs X complained about the way the Council handled her school admissions appeal. In particular, she complained the Council:
• arranged to hold a video appeal but then changed this so the appeal was held over the telephone;
• failed to let her read out her case to the Panel;
• did not listen to her arguments that she could not get all her children to their different schools on time and that one of her children had a disability; and
• did not calculate the distances to other schools with vacancies accurately.
2. Mrs X said that as a result, she has been left feeling depressed and anxious.

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The Ombudsman’s role and powers

3. 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 the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. 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

6. I spoke to Mrs X and considered her view of her complaint.
7. We made enquiries of the Council and considered the information it provided. This included the cases put by Mrs X and the school, the Clerk’s notes and the decision letter the Council sent to Mrs X.
8. I gave Mrs X and the Council an opportunity to comment on my draft decision.

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What I found

Background and legislative framework

9. During the COVID-19 pandemic, appeal panels moved from meeting in person to meeting remotely, using video and tele-conferencing.
10. Independent appeal panels must follow the law when considering an appeal. The panel must consider whether:
• the admission arrangements comply with the law;
• the admission arrangements were properly applied to the case.
11. The panel must then consider whether admitting another child would prejudice the education of others.
12. If the panel finds there would be prejudice the panel must then consider each appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
13. The Ombudsman looks at whether panels make their decisions properly, following the required steps. We cannot challenge those decisions which are properly taken. The panel is entitled to come to its own judgment about the evidence it hears.
14. Admission authorities must set out how distance from home to school will be measured. It can use whatever method it chooses as long as it is consistent. Distances from home to school are relevant when schools are oversubscribed and may choose to use closeness to school as a determining factor, or when councils are making decisions about whether a child qualifies for the provision of transport to school.

What happened

15. Mrs X has children of nursery and primary school age. During the school year 2020/21, the family moved to a house close to School A.
16. School A offered the oldest child a place. It refused places for the two of Mrs X’s other children who remained on the role of their old school, School B. Mrs X appealed about the two refusals.
17. A Council panel held the appeal April 2021. It was planned to hold the meeting virtually by video but Mrs X had trouble joining the meeting via the link so it was held via telephone.
18. School A and Mrs X presented written cases before the meeting. The main points of School A’s case were:
• it had exceeded the published admission number (PAN) in both year groups. The PAN is the number of pupils a school can admit into each age group;
• the additional support needed in both years was putting pressure on resources, time, accommodation and space;
• some of the classrooms were too small.
19. The Panel questioned School A’s representative, asking questions around the PAN, why the school was already over the PAN for the two school years of relevance to the appeal, the number of children with special educational needs and disabilities at the school and the impact on resources and staffing.
20. Mrs X also asked School A’s representative questions around the impact of COVID-19 and funding for pupils with special educational needs and disabilities.
21. The Panel decided that the tests at stage 1 had been met by School A which meant it concluded the admission arrangements were lawful and had been correctly applied and the admission of additional children would prejudice the provision of efficient education or the other children.
22. The Panel therefore moved onto stage 2 which was to consider whether Mrs X’s case outweighed the prejudice caused to School A in admitting additional children.
23. The main points of Mrs X’s case were:
• since submitting her appeal, School A had offered another of her children a place in reception;
• the family had chosen to move to the area because they like it and School A was the closest to them;
• she did not drive and so relied on public transport which meant it was impossible to get the children to both School A and School B on time and to pick them up on time;
• the children were spending over an hour a day on the bus getting to and from School B.
24. The Panel asked Mrs X questions around why she had not applied for places at other schools which were closer than School B, the fact Mrs X had said the family and one of the children had been victimised outside School B and whether anyone else could help with transport to school.
25. Mrs X said one of her children had been called names at school, she did not want to apply to other schools because she wanted to walk her children to School A together and no one else could help with transport.
26. The Panel considered the arguments and decided the prejudice to School A outweighed the prejudice to the children. It said the children already had places at a school and there were places for all the children at other schools within reasonable distance.
27. The Council wrote to Mrs X and said the Panel had refused her appeal. The letter explained that under the stage 1 test, the school’s admissions arrangements were lawful and had been applied correctly. The letter also stated under stage 1 that it would not be in the interests of Mrs X’s children, or the children currently in the school, to admit another child into the two year groups. It said “increasing numbers in classes also puts pressure on teaching and learning and leads to health and safety concerns”.
28. With regard to balancing the interests of the two children against the interests of the school, the letter outlined Mrs X’s case and said this did not outweigh the prejudice that would be caused to the school by admitting the children The letter stated the reasons for refusal were:
• there was a school within a reasonable distance from their home with places available; and
• the prejudice to the school in admitting one more child into each of the two year groups outweighed the reasons Mrs X put forward.
29. Mrs X remained unhappy and complained to the Ombudsman.
30. During my investigation I asked the clerk to the meeting about the issues Mrs X complained about. The clerk stated they could not recall the particular case; however:
• there were times when parents had trouble joining the meeting via the link. The clerk stated on those occasions the parent would be asked if they wanted to proceed by telephone or wanted to defer;
• the chair always emphasized to parents the Panel had read the submitted documentation. If the parent then started to go through their case, repeating in detail what had already been submitted instead of summarising or highlighting the main issues, the chair would sometimes interrupt.
31. When I spoke to Mrs X, she told me the link did not work with her make of phone and if the Council had warned her this sometimes happened, she would have borrowed a laptop to use. She said she was not asked if she wanted to defer the appeal but if she had been she would not have deferred because it was important to resolve placements for the children. She also said she felt as if the Panel did not listen to what she said and she felt she was hurried.

My findings

32. The Ombudsman’s role is to consider whether the appeal panel followed the Admissions Code. We do this by examining the panel’s papers and the notes taken by the Clerk during the hearing. We do not have the power to overturn the panel’s decision, and we cannot give a child a place at the school. It is for the panel to decide what weight to give the evidence. As long as it considered the evidence put forward properly, the Ombudsman cannot say what conclusion it should have come to. If we find fault which calls the panel’s decision into question, we may ask for a new appeal hearing.
33. The Panel considered evidence from School A and Mrs X and asked both parties questions about what they had submitted. Mrs X also got the opportunity to question School A and the Panel was a party to this.
34. At stage 1, the Panel concluded admitting another child would prejudice the education of others. At stage 2 it concluded Mrs X’s case did not outweigh the prejudice to the school.
35. The clerk’s notes demonstrate the Panel heard from both parties and were aware of all the facts each side submitted before making its decision. The notes record the panel followed the two stage process for considering the appeal without fault.
36. Mrs X is unhappy because she said she was expecting the appeal to be held by video and not via telephone. She says she was not given the option to defer the appeal. The clerk cannot recall whether this was offered but states that was the usual procedure.
37. I will not investigate this further. It is not possible to know for sure whether Mrs X was given the opportunity to defer. And in any case, Mrs X said she would have continued even if she was given the option to defer and so she was not caused a significant injustice.
38. Mrs X also said she was unable to read out her case and she felt she was not listened to because at times she was interrupted.
39. I cannot comment on the extent to which the Panel interrupted Mrs X but the clerk’s notes demonstrate Mrs X submitted a written case to the Panel and was able to put her points and arguments forward on the day and question the school about its case.
40. Mrs X said the way the Panel had calculated the distance from her home to other schools were ‘straight-line’ distances and so were unrealistic.
41. It was not for the Panel to make decisions about precise distances from Mrs X’s home to other schools. The Panel’s duty was to consider Mrs X’s appeal against School A. I will not investigate this matter further.

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Final decision

42. I have completed my investigation on the basis there was no fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman