The Ombudsman's final decision:
Summary: There was fault in how the independent school admissions appeal panel considered this Infant Class Size appeal. There is insufficient evidence the appeal panel properly considered the Council’s duty to provide clearly defined maps of school catchment areas.
- The complainant, who I will refer to as Mrs B, complains about the Council’s decision not to admit her son to the same primary school (“the School”) as his older sibling. Mrs B says the Council’s map shows she lives in the School’s catchment area, referred to by the Council as an ‘Area of Prime Responsibility (“APR”)’. The Council says she does not as the APR border runs along the middle of her road and she is on the other side of the border. Mrs B says the Council’s map does not show that the border runs along the middle of the road.
- I have investigated Mrs B’s complaint about the Infant Class Size (“ICS”) appeal.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I reviewed the information made by Mrs B and the Council and made further enquiries of both. I then sent a copy of my draft decision to Mrs B and the Council for their comments.
What I found
- Independent appeal panels must follow the law when considering an appeal. The law says the size of an infant class must not be more than 30 pupils per teacher. The School Admissions Code (“the Code”) published by the Department for Education states more than 30 children can only be admitted in limited exceptional circumstances.
- Admissions authorities must have an oversubscription policy, which states the order in which children will be admitted if they receive more applications than the places available. If a school is oversubscribed and admitting another pupil would mean a class had more than 30 pupils (known as ‘infant class size prejudice’), the authority cannot admit that pupil. The authority may also consider whether admitting the pupil would cause infant class size prejudice in future years.
- There are special rules governing appeals where infant class size prejudice is a reason in why the child has not been offered a place (an ICS appeal). The Code says appeal panels must consider whether:
- admitting another child would breach the infant class size limit;
- the admission arrangements complied with the relevant legislation and the Code;
- the admission arrangements were correctly and impartially applied; and
- the decision to refuse admission was one which a reasonable admission authority would have made in the circumstances.
- Mrs B has two children, Child C and Child D. Child C was admitted to the School in the 2015/16 academic year.
- Mrs B chose the School because it was close to her mother’s house, who would help with taking and collecting Child C from school. Mrs B’s mother’s is no longer able to help with the school run due to poor health.
- Mrs B checked the Council’s APR map for the School. The border of the APR ran along Mrs B’s road and she therefore believed she was in the APR. When Mrs B attended an open day at the School she asked a staff member whether she was in the APR and they said she was. She wanted to be certain as she knew the School may be oversubscribed in future years. Mrs B knew it would be difficult to get Child D a place at the same school if she was not in the APR.
- The Council offered Child C a place at the School. The Council did not consider Child C to be in the APR as, in its practice, the border line ran along the middle of Mrs B’s road. Mrs B lives on the other side of the road so, for the Council’s purposes, is in the neighbouring APR. Child C was successful because, in that year, the School was not oversubscribed.
- The Council sent an email and offer letter to Mrs B. Its letter did not say Mrs B was outside APR or that it only offered Child C a place because the School was undersubscribed. Mrs B accepted the school place for Child C, believing she was in the APR.
- Child D was due to start in reception in the 2018/19 academic year. Mrs B applied for a place at the School but was unsuccessful. In this year the School was oversubscribed and the Council prioritised children as per its policy:
1.Children in public care and previously in public care
- ‘Local siblings’ means the child has a sibling who lives in the APR. Under ‘geographical considerations’ children in the APR are given priority, followed by those outside APR who live nearest to the School by a straight-line distance to their home.
- The School admits 45 pupils into reception each year. Reception is split into two classes of 23 and 22 pupils. This is less than the 30-pupil limit, so admitting another pupil in that year would not cause immediate ICS prejudice. However, Year 1 and Year 2 are split into three mixed year group classes of 30 pupils each. This means admitting another pupil into reception in one year, will cause ICS prejudice in future years.
- The Council did not consider Mrs B was in the APR so ranked her application for Child D based on straight line distance. Two children were admitted based on straight line distance and both lived closer to the School than Mrs B. The Council therefore did not offer Child D a place at the School but instead offered him a place at school in the same APR, further away from Mrs B’s house.
- Mrs B complained to the Council as she believed it made a mistake and she was in the APR as the map showed it included her road. The Council said the border ran along the middle of the road and this had always been the case.
- Mrs B was concerned she would not be able to get both her children to school on time if she had to take them to two different schools and could no longer ask her mother for help. Her employer said it could not accommodate a change in Mrs B’s working hours to allow her time to get both children to school. Mrs B could not, therefore, continue with her job.
- Mrs B telephoned the Council switchboard and spoke to a member of staff. Mrs B says the member of staff told her she was in the APR. However, admissions staff from the Council said this was not correct.
- Mrs B appealed the decision. An independent appeal panel considered the matter as an ICS appeal. The panel found there would be future ICS prejudice if Child D was admitted to the School. It found the Council’s admissions policy followed the law and the Council applied it correctly in this case. It considered Mrs B’s personal circumstances but found the Council’s decision was not unreasonable in line with the high test it must apply.
- The appeal panel was correct to say there would be future ICS prejudice if the Council admitted Child D to the School. This is because when Child D entered Year 1, it would mean there were 91 students in Year 1 and Year 2. The School’s structure of three mixed classes of 30 pupils, means it could not comply with ICS legislation if it admitted Child D.
- There is no fault in how the appeal panel considered the question of reasonableness. It is rare an appeal panel finds the Council acted unreasonably as there is such a high threshold for this test. The Council’s decision must have been ‘perverse’ and it is well established that factors such as not being able to get both children to school on time, or even losing a job, are not sufficient to meet this test.
- Mrs B says the panel did not consider her personal circumstances because it did not consider that her son would have to walk for two miles to the school the Council has now offered. Mrs B says this is unlawful.
- The statutory walking distance for children under the age of 8 is two miles. This means that a child under 8 years old, living over two miles from their school may be eligible for free school transport. However, this is a separate issue, directly relating to whether the Council should provide travel assistance. It is not relevant to admissions and would not impact on where a child is offered a school place. It is not therefore an issue that is likely to have affected the panel’s decision on reasonableness.
- In this case, the panel considered Mrs B’s personal circumstances. It heard evidence from Mrs B on how it would be practically impossible to get both children to school on time and that she would lose her job as a result. The panel was sympathetic but found it could not say the Council’s actions were unreasonable in line with the test. There is no fault in how the panel reached this decision.
- The panel also needed to consider whether the Council’s policy complied with the law and if it applied its policy correctly. There is insufficient evidence the panel properly considered these questions or gave weight to the relevant issues. For this reason, I find the panel was at fault in how it considered this appeal.
- The main part of Mrs B’s appeal is the Council’s map is unclear. Mrs B says the map shows she is in the APR and if, as the Council says, the border runs along the middle of the road, the map does not show this clearly.
- The minutes of the appeal hearing are poor but show Mrs B raised the issue of the map several times. There are two parts of the minutes that seem to show the panel considered this issue. The first part says:
‘[Initials 1] are maps indicative. [Initials 2] – not very detailed. First instance we have had, live on one side of road…. Realised you believed you were in APR. Not particularly detailed. Thinner line not consistent. We have 2 children need to be at same school. Mapping system is… Page 2… Much more sophisticated’.
- It is not clear who the initials in the minutes refer to or who is saying what. It suggests there is some acceptance the map is not very clear but I cannot be certain who is saying this.
- The second part of the minutes says:
‘[Initials 3] – Made reference to [the School]. [Initials 4] understanding is that they hand map. Make it a policy not to say, any queries the admissions team. School isn’t appropriate. Didn’t have any queries.
If on line decision of authority is final.
Geographical features form a boundary, can be road, field.
[Initials 1] – where internal. We have not had a case like this before.
[Initials 3] – on other side of road – can’t both have both sides of the road. Can’t have both areas. Both at same nursery.’
- Again, it is not clear who the initials refer to.
- The last sentence says Mrs B cannot have both areas. The Council’s policy has maps for all APR’s. Two maps are relevant to this case, one that shows the School’s APR and another that shows the APR the Council says Mrs B lives in. On both maps, the border line runs along Mrs B’s road. The Council says this is the logic behind why the border runs along the middle of the road. If the road itself is included in the border of both maps, it follows that houses on one side of the road will be in one APR and houses on the other side will be in the other APR.
- Whilst there is logic in what the Council says, the Code says catchment areas must be ‘clearly defined’. It is not obvious from the maps themselves whether the inclusion of the road means all the houses on that road are included or just one side. Also, Mrs B says she did not look at the second map. She used the Council’s website to direct her to the APR map that included the School she was interested in. She saw that the APR boundary included her road and saw nothing that said, if her house was on the border line, she should also check neighbouring maps.
- One sentence says geographical features can form a boundary, such as a road or a field. However, it does not say this anywhere in the Council’s policy. It may seem reasonable to the panel but it is also understandable someone may think all it includes all the houses on the road. There is no evidence the panel considered in what way this meant the APR was clearly defined in the policy.
- The Council says, if Mrs B was not sure she should have checked. The difficulty is, Mrs B was certain she was in the APR. She made enquiries at an open day at the School in 2015, when she applied for Child C. This conversation took place a long time ago and the staff member in question is unknown. I cannot substantiate what Mrs B or the staff member said during this conversation. However, it is clear Mrs B did consider this issue and went away from the open day, secure in the knowledge her house was in the right APR. The map did nothing to dissuade her from this point of view as the border included her road.
- The minutes do not suggest the panel properly considered this matter, or sufficiently explored why the policy and maps were ‘clearly defined’ in a way that complied with the Code. There is no evidence in the minutes or outcome letter the panel considered the question of whether the Council’s admissions arrangements complied with the Code. This was the key question for the panel and its failure to properly analyse this is fault.
- I note the Council has now added a description to several of its APR maps in the 2019/20 policy. These descriptions make it clear what is included in the maps and that Mrs B’s house is in the neighbouring APR. The Council is also developing an online mapping system, so residents can easily check which APR includes their house. This shows the Council has taken steps to ensure in future there is no uncertainty around APRs. However, this information was not available to Mrs B when she applied for a school place for either of her children and does not resolve the injustice caused to Mrs B by the panel’s failure to sufficiently consider this issue.
Consideration of remedy
- The Ombudsman can only recommend that a council offers a child a place at a School, in very limited circumstances. We must be satisfied the child would have been offered a place if it were not for the fault. In this case, I cannot say Child D would have been offered a place if the appeal panel adequately considered the key issue.
- However, I have found the decision was not made properly. While I am not able to say it would have changed the outcome of the appeal, had the panel considered the issue properly, neither can I say that the outcome would have been the same.
- To remedy this uncertainty, I recommend the Council hold another appeal hearing. The appeal panel should properly consider whether the Council’s admissions arrangements, which include the APR maps, complied with the requirement in the Code that maps are ‘clearly defined’. The panel should consider the map in the 2018/19 policy. However, the 2015/16 map, if different, may also be relevant as this is when Mrs B first came to believe she was in the APR.
- It is clear Mrs B has suffered a significant amount of distress because of having to take her children to two separate schools. However, there is very limited scope in terms of what I can consider for a remedy. I have outlined the reasons in as much detail as possible below.
- Mrs B says she cannot get both her children to school on time. She had a conversation with staff from the school at which Child D was offered a place. Mrs B says the staff member told her if she could not get Child D to school on time they may need to report this to a child welfare officer. Mrs B says there is nothing she can do about this and no one has recommended any alternative.
- Mrs B also says she has lost her job because her employers could not accommodate a change in her working hours. A letter from Mrs B’s employer to the appeal panel supports this. Mrs B says the stress of potentially having a welfare officer involved with her family, through no fault of her own, and the loss of her job, has had a very negative impact on her health and emotional wellbeing.
- I sympathise with Mrs B’s situation and the distress this matter has caused. I also wholly understand how there appears to be a link between the decision not to offer Child D a place at the School and the distress that followed. However, in this case there is a separation between the fault and the impact caused by having children at two schools.
- As outlined at paragraph 25, factors such as not being able to get both children to school on time or not being able to continue in employment, are unlikely to have any bearing on whether an ICS appeal is upheld. The criteria are very strict and, whilst these issues will have caused undoubted difficulty to Mrs B and a significant amount of distress, the panel was not at fault in the way it considered these matters.
- The fault is with the panel’s failure to sufficiently consider whether the admissions arrangements complied with the code. Any injustice Mrs B suffered follows from this fault. In this case, the most appropriate remedy I can recommend is for a further appeal to take place and consider this issue. However, if the further appeal is upheld, the Council should consider any injustice caused to Mrs B by the fault in the appeal panel’s original decision-making process and seek to remedy this.
- The Council has agreed to:
- Hold a further appeal, considering in full whether the map in the Council’s admissions arrangements complied with the provision in the Code that catchment areas must be clearly defined.
- If the appeal is upheld, consider any injustice caused to Mrs B by the fault in the previous appeal panel’s decision-making process and seek to remedy this.
- There was fault in how the independent school admissions appeal panel considered this ICS appeal. There is insufficient evidence the appeal panel properly considered the Council’s duty to provide clearly defined maps of school catchment areas.
Parts of the complaint that I did not investigate
- Mrs B complained about delays in the Council responding to her and the conduct of Council officers, and their decision not to escalate her complaint to stage 2 of its complaints process. I have not investigated this part of the complaint for the reasons outlined below.
- The major issue in Mrs B’s complaint is that her son was not offered a place at her chosen school. The Council has agreed to provide a fresh appeal hearing to remedy the fault in how the previous appeal heard the matter. This is a significant remedy and addresses the main part of the complaint. I do not consider it proportionate to investigate the above issues as it is unlikely we would recommend a significant additional remedy for any delays in the Council’s responses. We would also not be able to investigate the individual conduct of council officers as the Ombudsman does not have jurisdiction to investigate personnel matters.
Investigator's decision on behalf of the Ombudsman