Summary: Miss X complains that an appeal panel’s decision to refuse her appeal for a place for her daughter at a school was unfair. There is no evidence of fault by the appeal panel.

The complaint

1. Miss X complains that the appeal panel’s decision to refuse her appeal for a place at a school for her daughter was unfair.

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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 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)
3. Where a school commissions a council or other organisations to administer its appeals on its behalf, it remains responsible for the appeals process and the actions of the organisation administering the appeals.
4. If we are satisfied with an organisation’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 have:

• considered the complaint and the information provided by Miss X;
• considered the information provided by the Council on behalf of the school. This included Miss X’s appeal form and answers to the panel’s questions, the school statement and the clerk’s notes of the appeal hearing.
• invited Miss X and the School to comment on the draft decision.

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What I found

Law and guidance

6. Statutory guidance about school admissions and appeals is in the School Admissions Code and School Admission Appeals Code, published by the Department for Education.
7. In 2020, the government introduced emergency regulations because of the COVID-19 pandemic. These are the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These temporarily amend the existing regulations and are due to remain in force until 30 September 2022. The government published guidance to accompany the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’.
8. The School Admission Appeals Code says appeal panels must allow appellants the opportunity to appear in person and present their case. The emergency guidance in 2020 stated that face-to-face hearings should not take place, and appellants should be offered a hearing by telephone or video conference wherever possible. Where this was not possible, appeals could be conducted entirely based on written submissions. In September 2021 the government amended the guidance to say face to face appeal hearings could take place where the authority considers it safe to do so. Where a face to face appeal was not possible due to COVID-19 appellants should be offered a hearing by telephone or video conference wherever possible.
9. The guidance said admission authorities would need to review any arrangements they had put in place to ensure they comply with the temporary regulations.

Appeal panel decision making

10. 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.  
11. 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. 

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. 

What happened

13. Miss X applied for a place in reception year for her daughter at a primary school. She placed the school as her first preference as it is close to her home. She placed another school as her second preference. This school is farther from her home.
14. The school has a published admission number of 30. It received 49 applications for reception year so it applied its admissions criteria. This admission criteria sets out the priority for allocating places and has eight categories. If there are more pupils in a category than places the school uses distance as a tie break. Miss X’s application was considered under category eight. The school refused a place for Miss X’s daughter as it allocated the last place to a pupil living closer to the school than Miss X.
15. The Council allocated a place for Miss X’s daughter at the second preference school.
16. Miss X appealed against this decision. She said her preferred school was closer to her home address and she would have difficulty in collecting her other child if her daughter attended the allocated school.
17. The appeals were arranged by the Council on behalf of the school. The Council decided to hold the appeals by written submission.
18. The Council sent the school’s case to Miss X which explained why it had not allocated a place for her daughter and why it could not admit more pupils. The Council invited Miss X and the appeal panel to submit questions on the school’s case. The Council sent Miss X’s appeal form to the school and appeal panel and invited them to send questions to Miss X. The appeal panel asked Miss X for more information on her reasons for her appeal. The Council the sent the responses to the questions to Miss X and the panel.
19. The appeal panel considered Miss X’s appeal by conference call and they were supported by a clerk. The clerk’s notes show the appeal panel decided:

• that the infant class size limit of 30 would be breached by admitting another child;
• the school had carried out its admissions process correctly and there was no evidence of an error when refusing a place for Miss X’s daughter.
• the school admission arrangements complied with the law.

20. The clerk’s notes show the panel considered Miss X’s reasons for wanting a place at the school but it was satisfied the school’s decision to refuse a place was not unreasonable.
21. The clerk sent a letter to Miss X notifying her of the decision to refuse her appeal and the reasons for the panel’s decision.

Analysis

22. The Ombudsman is not a further appeal so we cannot come to a view on the merits of Miss X’s appeal and whether it should be allowed. Our role is to examine if there is any fault in how the appeal panel considered Miss X’s appeal.
23. There is no evidence of fault in how the appeal panel considered Miss X’s appeal. The evidence shows the appeal panel followed the correct procedure when dealing with Miss X’s appeal by written submissions. Miss X was given the opportunity to ask questions on the school’s case and the appeal panel also asked Miss X’s further questions on her case.
24. The clerk’s notes show the appeal panel considered the correct tests when dealing with Miss X’s appeal. The notes also show the appeal panel considered the reasons why Miss X wanted a place at the school and why it considered the decision to refuse a place was not unreasonable. So, I am satisfied there is no evidence of fault in how the appeal panel reached its decision on Miss X’s appeal.
25. I do not have sufficient information to know if there is fault in the decision to hold the appeals by written submission rather than face to face or by telephone or video conference. But it is not proportionate to investigate the matter further. The evidence shows Miss X was able to explain the difficulties caused to her by not being offered a place at the school and why she wanted a place. Furthermore, the appeal panel can only allow infant class size appeals in very limited circumstances. So, I do not consider any fault in how the Council and School made its decision to hold the appeals by written submission could have caused significant injustice to Miss X.

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Final decision

26. There is no evidence of fault by the school. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman