Summary: Miss B complained her appeal for a place for her son at School 1 was unsuccessful. She said this meant her son had to attend a different school to his siblings which he found upsetting. We found fault with the Council for failing to record its decision not to hold appeals by telephone or video conference. The Council will remind relevant school admission appeal officers of the importance of recording procedural decisions to prevent injustice being caused in the future.

The complaint

1. Miss B complained her appeal for a place for her son at School 1 was unsuccessful. She said her son had to attend a different school to his siblings which he found upsetting. She also said having her children at different schools made getting them to and from school difficult.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)

Back to top

How I considered this complaint

4. 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.
5. Miss B and the Council had the opportunity to comment on a draft decision. I considered their comments before making my final decision.

Back to top

What I found

Legislation and Guidance

6. 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.
7. 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 five, six or seven 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.
8. There are two stages to an infant class appeal. At stage one, the Appeals Code says the panel must consider:
• whether admitting an extra child or children would breach the infant class size limit;
• whether admission arrangements complied with the mandatory requirements of the School Admissions Code and Part 3 of the School Standards and Framework Act 1998;
• whether 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.
9. The panel can only uphold the appeal at the first stage where:
• it finds admitting extra children would not breach the infant class size limit; or
• it finds 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 the decision to refuse admission was not one which a reasonable admission authority would have made in the circumstances of the case.
10. In multiple appeals where more than one child would have been offered a place under the paragraph above, and to admit that number would seriously prejudice the provision of efficient education or efficient use of resources, the panel must proceed to the second stage.
11. At stage two, 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.
12. 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.
13. 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.
14. ICS appeals also applies where admitting a further child would lead to a breach of the infant class size limit in future years.

COVID-19 amendments

15. 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. Amendments are in force until September 2022.
16. 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.
17. 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.
18. 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 can fully present their case by 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 ask for further relevant information. They should bear in mind that appellants may be less familiar with the 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.
19. 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.
20. 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. C has a sibling at the infant and junior schools of School 1. C also has a sibling who goes to nursery. The Council is the Admission Authority.
24. Miss B applied for a place at School 1 for C. C did not live in the catchment area. On national offer day in April 2021, the Admission Authority offered C a place at School 2. Miss B accepted the place.
25. Miss B made an infant class size appeal for a place at School 1. In her appeal, Miss B said it would be difficult to get child C to School 2, their two siblings to School 1 and another to nursery on time. She said doing this journey would make her late for work and she would have to reduce her hours, impacting on the family’s finances. Miss B’s appeal was one of 11.
26. At the end of April 2021, Miss B told the Council she had moved to a new address. C’s new address was closer to School 1 but still outside the catchment area.
27. The Council told Miss B it would hold the appeal on 25 June 2021. It said all 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 2 June 2021. It said she would receive the appeal papers 21 days before the appeal hearing and that she would have until the 10 June 2021 to submit any questions. It advised her to contact it if she had a disability that would make it difficult to provide a written submission.
28. The Council sent her the final pack of paperwork for the appeal at the beginning of June 2021. This included:
• The Admission Authority's submission about the measures taken to comply with the statutory class size limit and application of the admissions policy.
• Her written grounds of appeal and associated paperwork.
• The grounds on which her appeal could be successful.
• Details of the appeal panel.
29. The Admission Authority's submission said:
• School 1’s published admission number (PAN) was 90 and in May 2021 there were 90 children on roll with the final place offered to a child in School 1’s catchment area.
• None of the 11 children who appealed for a place at School 1 qualified for excepted pupil status.
30. Miss B gave the Council information to support her appeal. Miss B explained she could not secure a property in the catchment area for School 1. She explained the difficulty she would have taking her children to different schools and the impact this would have on the family. She said C was upset he was not going to attend School 1 with his siblings.
31. Questions raised by Miss B, the Admission Authority and the panel were disseminated. The Admission Authority gave the panel a table that showed it offered children a place at School 1 in line with the admissions criteria. In Miss B’s response to questions, she raised concerns about the admissions arrangements and provided information about the family’s circumstances.
32. The panel met virtually using Microsoft Teams on 25 June 2021. It decided admitting an extra child would breach the infant class size limit.
33. The panel considered Miss B’s case, including:
• difficulties getting her children to different schools on time and possibly having to reduce her working hours;
• C having siblings at School 1; and,
• the family’s new address and the impact this had on C’s school catchment area.
34. It also considered Miss B’s claim the infant class size limit was exceeded on previous occasions and the Council had not followed the admissions policy for the oversubscription list. It decided:
• 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.
35. The appeal panel decided the Council’s decision to refuse admission was a decision which a reasonable admission authority would have made in the circumstances of Miss B’s case. It did not uphold her appeal.
36. The Council sent Miss B the result of her appeal on 27 June 2021. It explained the infant class size limit and the appeal process. It summarised the factors and evidence the panel considered and the decisions it came to. It advised the panel decided none of the legal grounds on which appeals could be allowed applied to Miss B’s case and her appeal was unsuccessful.

Response to enquiries

37. 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 not all panel members had access to electronic means to engage in a virtual hearing or a private room to work from. It advised it did not have the resources to provide panel members with laptops. It decided it would not be fair, or logistically possible to offer some, but not all, parents a remote hearing. And, it was not confident virtual appeals could be heard fairly and transparently. The Council did not record its decision making.
38. The Council advised it administers more than 600 appeals each year and with resources strained because of the impact of COVID-19 it was necessary to hold appeals by written submissions.
39. In July 2021, the Council decided to resume in-person hearings from September 2021.

Analysis

40. 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. Although this did not cause Miss B or C injustice, I have recommended action to prevent future injustice to others.
41. Given the volume of appeals the Council had to administer and the impact of COVID-19, I find no fault with the Council’s decision to hold appeals by written submissions. There was also no fault with the administration of the appeals and therefore no outstanding injustice to Miss B and C. I understand Miss B and C are disappointed with the panel’s decision, but without evidence of fault in how the panel reached its decision, there are no grounds to question the merits of the decision.
42. It is positive the Council decided to resume in-person hearings from September 2021.

Back to top

Agreed action

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

Back to top

Final decision

45. I have completed my investigation and uphold Miss B’s complaint. This fault did not cause Miss B injustice. The Council has agreed to make service improvements to prevent causing injustice in the future.

Back to top

Investigator's decision on behalf of the Ombudsman