Emmaus C of E & RC Primary School, Liverpool (18 007 048)

Category : Education > School admissions

Decision : Not upheld

Decision date : 24 Sep 2018

The Ombudsman's final decision:

Summary: there was no fault in the way the Independent Appeal Panel made its decision not to admit Ms M’s daughter to Emmaus C of E & RC Primary School. The Ombudsman cannot question decisions made without fault.

The complaint

  1. Ms M complains about the Independent Appeal Panel’s decision not to admit her daughter to Emmaus C of E and RC Primary School.
  2. In particular, Ms M complains:
    • the Chair of the Appeal Panel interrupted her during the appeal and refused to accept handouts she brought to the hearing for the Panel;
    • the school gave incorrect information about the number of children on roll; and
    • two appeals were successful. Ms M knows the parents and believes their circumstances are similar.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. The Ombudsman cannot question whether a school admission appeal 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 the panel’s decision into question, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3))
  2. The Ombudsman’s role is to ensure the Independent Appeal Panel followed the Code of Practice issued by the Department for Education, and the hearing was fair.  We do this by examining 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.
  3. If the Ombudsman is satisfied with a council’s actions or proposed actions, we can complete an investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))

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How I considered this complaint

  1. I have considered:
    • Ms M’s comments;
    • all the information presented to the Appeal Panel, the notes taken by the Clerk during the appeal, and the Panel’s decision letter following the appeal; and
    • the School Admissions Appeals Code 2012.
  2. I invited Ms M and the Governors to comment on my draft decision.

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What I found

  1. Emmaus C of E and RC Primary School is a Voluntary Aided School. The Governors are the Admission Authority and are responsible for organising the Independent Appeal.
  2. Ms M applied for a place for her daughter in Reception. Her application and subsequent appeal were unsuccessful. Ms M complains about her appeal.
  3. The School Admission Appeals Code 2012 issued by the Department for Education sets out the process the Independent Appeal Panel must follow when considering an appeal.
  4. The Panel must first consider whether the Council has correctly applied the admission criteria to the application. The school received more applications than places available. Ms M’s application was unsuccessful because all the places were allocated to children with more priority. Ms M’s application was in category 4, other baptised Church of England and Catholic children who have a sibling in the school at the time of admission. The last place was allocated to a child in category 3, baptised Church of England and Catholic children living on the Croxteth Park Estate at the time of admission. The Panel decided that the Governors had correctly applied the admission criteria.
  5. The Panel must then consider whether Ms M’s need for a place outweighs the problems an extra child would cause to the school.
  6. No more than 30 children can be taught by a single teacher in an infant class (Reception and Years 1 and 2). If this is not possible without reorganisation or employing extra staff, and this would harm the education of other pupils, “infant class size prejudice” rules apply to the appeal.
  7. When infant class size prejudice rules apply, the Appeal Panel can only legally uphold an appeal if:
      1. The child would have been offered a place if the admissions arrangements had been implemented properly;
      2. The child would have been offered a place were it not for some flaw in the admission arrangements; and/or
      3. The decision to refuse a place was one which no reasonable authority would have made.
  8. The threshold for appeals made under c. above is extremely high. The Panel cannot legally uphold appeals which do not fall into the categories above, no matter how persuasive the appeal otherwise is.
  9. The Panel considered whether the infant class size prejudice rules applied to Ms M’s appeal. There were originally two classes of thirty children admitted to Reception at the school. However, as Ms M points out, additional children have since been admitted. The Panel established these are “excepted pupils”. The law defines limited circumstances in which pupils can be admitted to an infant class but who are not counted when applying the infant class size limit. These are known as “excepted pupils”. The Head explained in his submission to the Panel that the school does not have resources to fund an extra teacher. The Panel decided, therefore, that infant class size prejudice rules did apply to Ms M’s appeal. This is a decision the Panel can take and there are no grounds for the Ombudsman to question it.
  10. The Clerk’s notes and the decision letter record Ms M’s discussions with the Panel at the hearing. I can see from the Clerk’s notes that Ms M appealed on the following grounds:
    • D’s brother already attends the school. Ms M will face difficulties taking her children to different schools as both parents work full time. They do not drive and have no regular family support;
    • D has recently been diagnosed with a medical condition and would benefit from the support of her peers from nursery and her older brother; and
    • Ms M does not think the school’s admission criteria are fair. The school gives priority to siblings living on the estate over siblings who live further away. Ms M lives a short distance from the estate. D’s older brother secured a place when there was less demand.
  11. The Panel decided that none of these reasons fall under the circumstances in paragraph 14. Therefore the Panel could not legally take them into account when making its decision.
  12. For the reasons set out above, I am satisfied that the Panel properly considered Ms M’s appeal and there are no grounds for the Ombudsman to question its decision.
  13. Ms M complains the Chair interrupted her during the hearing and refused to accept her handouts. However, the Clerk’s notes say the Chair asked Ms M at the end of the hearing whether she had said everything she wanted and Ms M said yes.
  14. Ms M complains the school gave incorrect information about the number of children on roll. The Clerk’s notes satisfy me the Panel discussed the issue and satisfied itself the extra children were “excepted pupils”.
  15. Ms M complains that two appeals were successful. Each appeal is conducted in private and judged on its merits. The Panel, not the Ombudsman, decides the outcome. I am satisfied the Panel considered Ms M’s appeal properly, so there are no grounds for me to question the outcome in her case.

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Final decision

  1. Subject to further comments by Ms M and the Governors, I intend to end my investigation. There was no fault in the Independent Appeal Panel’s decision not to admit Ms M’s daughter to Emmaus C of E & RC Primary School. The Ombudsman cannot question decisions taken without fault.

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Investigator's decision on behalf of the Ombudsman

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