South Gloucestershire Council (18 015 697)

Category : Education > School admissions

Decision : Not upheld

Decision date : 26 Apr 2019

The Ombudsman's final decision:

Summary: Mrs B complains the Council has not properly complied with the Ombudsman’s recommendation to remedy injustice. Mrs B says she has suffered significant distress and lost her job because of the Council’s fault. The Ombudsman does not find fault in how the Council considered the recommendation.

The complaint

  1. The complainant, who I refer to as Mrs B, previously complained to the Ombudsman about the decision of the Council not to admit her son to the same school as his older sibling (“the School”). The Ombudsman found fault in how an independent appeal panel considered the case and recommended a fresh appeal. We also recommended:
    • 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.
  2. Mrs B complains the Council has not offered any further remedy to recognise the injustice she suffered.

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The Ombudsman’s role and powers

  1. 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)

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How I considered this complaint

  1. I reviewed the Council’s responses to Mrs B and her comments on those responses. I considered Mrs B’s views on the Council’s decision as set out in her comments and additional information. I spoke to Mrs B about my initial view on the matter. I then sent a copy of my draft decision to Mrs B and the Council for their comments.

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What I found

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. The Code says school catchment areas must be designed so they are reasonable and clearly defined.

Background

  1. Mrs B has two children, C and D. C was admitted to the School in the 2015/16 academic year. D was due to start in reception in the 2018/19 academic year. Mrs B applied for a place for D at the School but was unsuccessful because the School was oversubscribed.
  2. Mrs B appealed on the basis she lived in the School’s area of prime responsibility (“APR”). The Council’s map showed the border line of the APR ran along her road. The Council said because her house was on the wrong side of the road, it was not in the APR.
  3. An independent admissions appeal panel considered Mrs B’s appeal. The School was oversubscribed so it did so as an ICS appeal. The panel found the Council had applied its admissions policy correctly and there would be ICS prejudice if it allowed D a place at the School.
  4. Mrs B’s 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. This had a significant impact on her emotional wellbeing, which in turn meant she could not complete her studies for a professional course.
  5. The Ombudsman found fault with how the appeal panel considered the case. We found there was not sufficient evidence the panel had properly considered whether the map was ‘clearly defined’, in line with the Code. We therefore found there was not sufficient evidence the panel had properly considered whether the Council’s admissions arrangements complied with the Code. We made the following recommendations:
    • 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.
  6. The Council held a fresh appeal. The new panel upheld the appeal. It found the Council’s map did not comply with the Code, as it was not clearly defined. However, it found that, had the map been clearly defined, D would not have been offered a place, as the map would have shown clearly that Mrs B lived outside the School’s APR. Mrs B’s home had always been outside the APR, so the Council did apply its admissions criteria correctly. The issue was the map did not clearly show this.
  7. The Panel went on to consider the full circumstances of the case, including Mrs B’s reliance on the map in applying to the School. The Panel found that, considering all the circumstances, it was unreasonable for any admissions authority not to offer D a place at the School.
  8. The Council considered the second part of the remedy. It found that offering D a place at the School was a significant remedy that addressed the substantive issue of Mrs B’s complaint. It did not find a direct link between the fault of the first panel and the impact of having two children at different schools. It therefore did not offer any further remedy.
  9. Mrs B says she has suffered significant injustice because of the Council’s fault. She says the Council should consider:
    • distress she has suffered
    • loss of earnings from losing her job
    • not being able to complete studies due to stress and inconvenience
    • costs of two school uniforms as D has now changed school
    • time and trouble in appealing twice

Findings

  1. I do not find fault in how the Council considered and complied with the Ombudsman’s recommendation.
  2. I understand why Mrs B says the Council has not remedied the injustice she suffered. Mrs B did lose her job because she had to take children to two different schools. The second appeal panel found the Council’s admissions arrangements did not comply with the Code. I can see how it appears to follow that Mrs B therefore lost her job because of fault by the Council. However, this is not a link I can make.
  3. The Ombudsman found fault with the initial appeal because there was insufficient evidence the panel considered the relevant issue. That being, whether the arrangements complied with the Code. It is possible, another appeal panel who considered the matter properly, may have reached the conclusion the map was sufficiently clear. If that panel set out its rationale clearly, taking all relevant factors into account, it would not be my place to question its decision.
  4. The new panel did consider the relevant issue properly and found the admissions arrangements did not comply with the Code. It cannot be taken for certain from this that, had the first panel considered the issue properly, it would have reached the same conclusion, as the matter is subjective. However, if this was the basis on which the second panel found the Council should offer D a place at the School, it would provide a stronger argument that the first panel’s fault led to the impact on Mrs B of having children at two schools.
  5. As it is, the second appeal panel found that, had the arrangements complied with the Code, the Council still would not have offered D a place. D would not have been eligible for a place at the School because he was not in its APR. The issue is not whether or Mrs B lives in the School’s APR. She does not. The issue is whether the map clearly showed this.
  6. The second panel directed the Council to offer D a place because it found, with all things considered, it was unreasonable for the Council not to. The question of reasonableness is a far more subjective matter, as the threshold is so high. It is more than possible that another panel, faced with the same facts, may have reached a different conclusion.
  7. For this reason, I cannot say for certain that, had the first panel considered the question of reasonableness, it would have offered D a place at the School.
  8. The injustice Mrs B identifies, in losing her job, not completing her studies, paying for two school uniforms and the associated distress, all flows from the initial decision not to offer D a place at the School. I am not able to recommend the Council pay Mrs B for this financial loss and distress as, for the reasons set out above, I cannot draw a link that says, if it were not for the fault the Ombudsman found, these expenses and the distress would not have occurred.
  9. In the Ombudsman’s previous decision, it outlined the separation between the fault and the distress suffered. However, it still recommended the Council consider any injustice caused, if the second panel upheld the appeal. The purpose was for the Council to consider any injustice, such as time and trouble Mrs B spent bringing a second appeal because of the fault.
  10. The Council has not specifically commented on time and trouble. However, I acknowledge that neither does the Ombudsman’s recommendation. The Council has set out that it feels the substantive issue of the case has been remedied. The Council does not consider any other remedy would be appropriate in these circumstances. It can be inferred from this that the Council does not consider a financial remedy appropriate for time and trouble in bringing a second compliant.
  11. Considering the full circumstances of the case, including the reasons for which the second panel upheld the appeal. I do not find fault with the Council’s reasoning that the substantive issue has been remedied and no further financial remedy would be appropriate in this case.

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Final decision

  1. The Ombudsman does not find fault in how the Council considered the Ombudsman’s recommendation.

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Investigator's decision on behalf of the Ombudsman

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