The Ombudsman's final decision:
Summary: There was fault in how the Council considered an application for a primary school place, and in how the subsequent appeal was considered by the independent panel. The Council has reconsidered its decision at the Ombudsman’s recommendation, and has now offered the complainant’s daughter a place at the school.
- The complainant, to whom I will refer as Mr P, considers that the Council and independent appeal panel mishandled his daughter’s application for a Reception class place.
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)
How I considered this complaint
- I reviewed the Council’s initial consideration of the application, and the appeal panel’s determination.
- I also sent a draft copy of this decision to both parties for their comments.
What I found
- Mr P has a son and a daughter. I will refer to his son as J, and to his daughter as K.
- J is in Year 3 at a local primary school (‘the School’), for which the Council is the admissions authority. This is not the catchment school for the area in which the family lives, but J was granted a place there as parental preference.
- Since starting at the School, J has been diagnosed with a serious medical condition.
- K was due to start primary school in the 2018/19 academic year. Mr P applied for a place at the School for her. He asked for her application to be considered under criterion 2, the medical or social need category of the Council’s oversubscription criteria.
- This category is for children with a pressing medical or social need to attend a particular school. This can include medical or social circumstances which apply directly to the child, or to a close family member. If the Council accepts that their need is sufficiently great, it will rank the child’s application higher than children in the lower criteria. This means, if there are more applications for that school than places available there (‘oversubscription’), the child’s application is prioritised and they are more likely to be offered a place.
- The Council considered K’s application under the medical category, but did not accept that it reached the threshold for this criterion. It instead considered her application under criterion 5, the lowest category, which is for children with a sibling at the school but who live outside the catchment area. K was not offered a place at the School.
- Mr P appealed the decision. He submitted further medical evidence, which explained that it was important for Mr P and his wife to have as much contact as possible with staff at the School, to help manage J’s condition. Having to take their children to two different schools would reduce this contact, and make it more difficult to support J.
- At the appeal hearing, the panel explained to Mr P that it was outside of its jurisdiction to reconsider the medical decision made by the Council. The panel members expressed dissatisfaction with the Council, as it did not believe the Council had properly explained its decision. It noted that the Council’s representative at the appeal, the presenting officer, also could not shed any light on the decision.
- However, the appeal panel voted 2-1 to reject the appeal.
- Mr P then complained to the Ombudsman.
- Admissions appeals are governed by the School Admissions Appeals Code 2012 (‘The Code’). The Code sets out both how appeals should be managed and what information must be circulated beforehand. The guiding principles of admission appeals are they should be fair and transparent.
- Admission appeals panels should be constituted in a particular way. There must be someone who has no ‘personal experience in the management of any school or provision of education in any school (except as a school governor or in another voluntary capacity)’ along with someone who has experience in education. Panels also have a chairman and clerk.
- The Code emphasises that admissions authorities must ensure that panel members, clerks and chairs are properly trained and understand their duties.
- Clerks to panels have the specific duty of ensuring ‘an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting and reasons for decisions’.
Infant class size appeals
- 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. There are only limited circumstances in which more than 30 children can be admitted. There are special rules governing appeals for Reception and Years 1 and 2. Appeals under these rules are known as “infant class size appeals”. The rules say the panel must consider whether:
- admitting another child would breach the class size limit;
- the admission arrangements comply with the law:
- the admission arrangements were properly applied to the case:
- the decision to refuse a place was one which a reasonable authority would have made in the circumstances.
- What is ‘unreasonable’ 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.
The Council’s policy
- The Council’s website explains how it considers applications based on medical and social need. It says:
You can request priority for a place at your preferred school if your child or a family member living at the same address has an exceptional medical and/or social need that makes attendance at a particular school essential.
The supporting evidence must confirm the child or family’s medical and/or social need and set out why that need makes it essential that your child attends the named school rather than any other.
Providing evidence does not guarantee priority at the preferred school. Decisions will be made based on the merits of each case and whether the evidence demonstrates that a placement should be made at a particular school above any other.
The school and a panel of local authority senior officers will consider your evidence. Both parties need to agree that your child's admission is essential. If not, your application will be considered against the school's remaining oversubscription criteria.
- The Council has explained the that its panel consists, initially, of two officers. Each will independently consider the evidence, and decide whether to accept that the application should be ranked according to the medical / social criterion. If the officers disagree, they will refer it to a third officer as a tie-breaker.
- Once the panel has reached its decision, it will then ask the school for its view. If both panel and school agree to accept the medical / social need for the application, then it will be ranked accordingly.
- The Council has provided with a copy of the panel’s decision notice. One officer wrote:
Although the medical evidence shows that [J] is supported by [the School] this isn’t the catchment school and was a parental preference. The catchment school is [name] and there are other schools closer to the home address. I cannot support an essential need for [K] to attend [the School] over any other school.
- The second officer wrote:
[The medical evidence] makes it clear that [J] is well supported by staff at [the School] … However, [the School] was a parental preference for [J] … If the family had put [J] into [the School] because it was the catchment school (rather than parental preference) I would have supported [K’s] application. This is an out-catchment, sibling situation.
- As both officers agreed, they did not refer it to the third officer.
- The officers’ role was only to consider whether the medical evidence indicated an essential need for K to attend the School. But neither did this – instead, they both appear to have rejected the application because J had been given an out-catchment place through parental preference. This had nothing whatsoever to do with the question at hand.
- Given, in particular, the second officer’s comments (that he or she would have supported the application if it were not for the catchment issue), it can logically be concluded that the panel would have at least referred the decision for a tie-breaker, if the officers had only considered the relevant information. The Council has also provided me with the School’s view, which is very strongly in support of the application.
- It is therefore very plausible that K’s application would have been ranked under criterion 2, if it were not for the errors in its consideration. This, in turn, would have made it far more likely that she would have been offered a place at the School.
- This, therefore, represents a serious injustice to K.
- Separately, I am also critical of some issues relating to the appeal panel.
- I note the appeal panel’s dissatisfaction at the lack of information provided by the Council for its decision on the medical evidence. In particular, it criticised the presenting officer for the fact that they could not shed any light on the decision.
- I asked the Council for its comments on this. It said that it would have released the information to the appeal panel, if the panel had advised the Council that it considered it essential to its decision making. It also said the appeal panel could have called an adjournment for this purpose if necessary.
- Given the appeal panel’s comments, it appears clear that it considered the missing information to be important. This implies that the panel members were unaware that they could have requested the information from the Council.
- Again, I consider this to be fault. Although the appeal panel is independent, the Council, as the admissions authority, is responsible for ensuring that the panel members are trained for their role. This should include being aware that they may request information about the Council’s decision on medical applications, and that they may adjourn a hearing for this purpose if necessary.
- As described previously, when an infant class has already reached 30 places, there are very limited grounds for admissions appeals to be upheld. However, one ground on which the panel can uphold an appeal (thus allowing an infant class to go over 30) is that the admissions procedures were not correctly applied to the child in question.
- In K’s case, I do not consider that the procedures were correctly applied. I, of course, cannot say that the panel members would have been of the same view, had they had full information. But it is possible. Again, therefore, this fault may have led to a different outcome for the appeal, had it not occurred.
- There is an additional, though more minor, point of fault in the panel’s minutes.
- At the end of the hearing for K, the panel voted whether to uphold or reject the appeal. The clerk’s record of the vote reads:
[Member’s initials] – Not unreasonable; [Initials] – Yes; [Initials] – Yes
- It is not clear what this means. It could be read to indicate that two of the three members had voted to uphold the appeal.
- I accept that this is not what it is supposed to mean, and that ‘yes’ was meant to indicate that the member was voting to reject the appeal. But there is an obvious ambiguity here. The Code requires the clerk to make an “accurate record” of the hearing, and I do not consider that minutes of which the meaning is not clear meet this requirement.
- There were several areas of fault in the handling of this application.
- Most seriously, the initial panel made its decision on the basis of irrelevant information, which meant that K potentially missed out on a place at the School at this stage.
- The appeal panel members were also unaware of their right to scrutinise (and potentially overturn) this decision, meaning that K may also have missed out on a place at the appeal stage.
- Both these faults could represent a significant injustice.
- The appeal panel’s minutes are also ambiguous. I do not consider that this, in isolation, represents a separate injustice to K. But it is something which might potentially have caused problems under other circumstances.
- At draft stage, the Ombudsman recommended that the Council reconsider its initial decision, using different officers to make up the panel, but taking the School’s view as expressed at the time of the original consideration. It was recommended that the officers ensured they considered only the weight to attach to the medical evidence, with no irrelevant factors.
- If the panel accepted that the application should have been ranked according to the medical criterion, the Ombudsman recommended that the Council then determine whether K would have been offered a place at this ranking. If so, it should do so now.
- The Council agreed to do this. It has confirmed that the panel accepted that the application should have been ranked according to the medical criterion, and that, had this occurred at the time, K would have been offered a place.
- The Council has now offered K a place at the School, and it tells me that Mr P has accepted the offer. K will shortly start at the School.
- The Ombudsman also recommended that training be provided to independent appeal panel members and clerks. Panel members should understand that they have the right to request information pertaining to the Council’s decision on applications under the medical / social criterion, and to scrutinise and overturn this decision if they consider that the criterion has been improperly applied.
- And clerks should be given guidance on making clear notes of hearings, particularly on how panel members vote.
- The Council has also accepted both recommendations. It says it will provide training to panel members in January 2019, and to clerks at their meeting in October.
- I am satisfied that the Council has taken positive action to remedy the injustice to K, and to prevent similar faults occurring in the future.
- I have completed my investigation with a finding of fault causing injustice.
Investigator's decision on behalf of the Ombudsman