Summary: Mr B complains about the appeal panel’s decision not to admit his children to his preferred schools. The Ombudsman finds the Council was at fault in that the panel was not given the opportunity to decide whether late information submitted by Mr B should be considered at the hearing. The Council was also at fault in that its decision letter in respect of one of the appeals did not properly explain the reasons for the panel’s decision. The Council has agreed to remedy the caused to Mr B by offering him a fresh appeal and reviewing the training needs of its clerks and panel members.

The complaint

1. Mr B complains about the appeal panel’s decision not to admit his children to his preferred schools.

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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. 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

4. I have considered:
• Mr B’s comments;
• all the information presented to the appeal panel, the notes taken by the clerk during the appeal hearing and the panel’s decision letters following the appeal; and
• the current School Admission Appeals Code.
5. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

6. Mr B made an in-year application for places for his daughter, C, in Year 1 and his son, D, in Year 4. The family had recently moved to the area because of his mother’s ill-health. He wanted both children to attend the same school for mutual support and because he could not take them to school due to work commitments and his wife, who does not drive, could not get them both to different schools on time, particularly in view of her caring responsibilities towards his mother. Mr B also wanted the children to attend a school with no faith or religious designation which had some English as an Additional Language (EAL) pupils. C was offered a place at School Y which was one of her preferences. It was not possible to offer D a place at any of the schools listed on his application form as they were all full in his year group. He was offered a place at School Z.
7. Mr B appealed for a place for his daughter at School X and for places for his son at Schools X and Y. All three appeals were unsuccessful. Mr B complained to the Ombudsman.
8. The School Admission Appeals Code issued by the Department for Education sets out the process the independent appeal panel must follow when considering an appeal. Special rules apply to admissions to infant classes (Reception and Years 1 and 2). Appeals under these rules are known as “infant class size appeals”.
9. The Ombudsman’s role is to check that the appeals were carried out properly. We do not decide whether the children should be given places at the school.
10. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.

Appeal for a place for Mr B’s daughter at School X

The appeal hearing

11. 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. 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.

12. 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.
13. At the appeal the Council presented its case. The school had a published admissions number (PAN) of 60 pupils for Reception and Years 1-5. The Council is the admitting authority for the school and had allocated places to 60 children in Year 1 in line with the admission criteria. The school employed one teacher per 30 pupils. The Council argued that employing an additional teacher for an additional child would be an inefficient use of the school’s resources. It also explained that staff members without class responsibility undertake defined management and support roles which could not be removed without prejudicing the provision of efficient education at the school.
14. The panel considered the Council’s case and decided the infant class rules did apply and that the admission arrangements were lawful and were properly applied.
15. Mr B presented his case. He explained his family had moved to the area to care for his elderly mother who had significant care needs. He could not take the children to school because of work commitments and his wife, who does not drive, is his mother’s main carer. It is impossible for her to take the children to two separate schools whilst also managing her caring responsibilities so, they both needed to attend the same school.
16. The panel considered the information provided by Mr B. It decided the Council’s decision to refuse admission was a reasonable decision and not ‘perverse’ or ‘outrageous’ and so it refused the appeal.
17. The Ombudsman cannot question the panel’s decision provided it has followed the School Admission Appeals Code and taken a decision on the evidence. The clerk’s notes record the panel was satisfied the admission of an additional child would breach infant class size legislation. It was sympathetic to Mr B’s circumstances but there are very limited grounds on which an infant class size appeal can be successful. The clerk’s notes record the panel considered the evidence provided by Mr B but decided the decision of the admissions authority was not so unreasonable in the circumstances as to be perverse. That was a decision the appeal panel was entitled to take. The notes show the panel concluded the journeys were not exceptional in Hertfordshire and many families had to manage complex demands and arrangements.
18. For the reasons set out above, I am satisfied the panel properly considered the case. As there was no fault in the way the panel reached its decision, there are no grounds for the Ombudsman to question it.

The decision letter

19. The clerk’s decision letter lists the information the panel considered but does not explain why it decided Mr B’s reasons for wanting a place at the school did not outweigh prejudice. To Mr B, these are all reasons why his daughter should have been offered a place, so the letter needs to explain why the panel does not agree. The Appeals Code requires the panel to give reasons for its decision. Failure to do so was fault. But this fault does not call into question the decision itself. Mr B’s situation is not exceptional. Case law has established that difficulties in getting siblings to different schools on time are not enough grounds to uphold an infant class size appeal.

Appeal for a place for Mr B’s son at School X

The appeal hearing

20. For admissions to Year 4 the panel must consider whether:
• the admission arrangements comply with the law; and
• the admission arrangements were properly applied to the case.
21. The panel must then consider whether admitting another child would prejudice the education of others. If the panel finds there would be prejudice, it must then consider the appellant’s arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
22. The Council’s written case stated that the PAN is 60 for Reception and Years 1-5. The Council had offered places up to the PAN. It stated all available places had been allocated in accordance with the admission rules. It argued any additional child would place more pressure on school facilities and teachers’ time and prejudice efficient education and the efficient use of resources at the school. The Council explained that, because of insufficient room, the original school hall is used as a dining room and the library is used as a teaching space for small groups. The school had not been able to establish an ICT suite like many schools because of lack of space and instead uses portable trolleys to take the equipment to the pupils. The Council argued that the addition of another child in the class would add to the already considerable pressures on the teacher, particularly as facilitating the integration of a new child into a class is a time-consuming process involving complex observations.
23. The clerk’s notes record the presenting officer explained all this to the panel. She also explained that in Year 4 some children were below age attainment and there were some additional pressures, such as behavioural issues requiring support. The school also had financial strains.
24. Mr B put forward his case which was the same as for his daughter. He also explained he wanted a school with high number of EAL children. He also said the family had experienced racial discrimination in the area they had moved to, so he was concerned about sending D to his allocated school which is near the family home.
25. The clerk’s notes of the decision-making show the panel was satisfied the admission arrangements comply with the law and that they had been correctly and impartially applied.
26. The panel was satisfied the admission of an additional child would prejudice the provision of efficient education or efficient use of resources at the school. In particular, it noted that children in Year 4 were below average attainment levels, there were some behavioural issues which required input from Behaviour Support and strains on the school’s budget.
27. The panel then considered Mr B’s case for D to be admitted to the school even though it is full. This is known as the ‘balancing stage’ where the prejudice to Mr B’s son if he is not given a place is balanced against the prejudice to the school if he is. The clerk’s notes show the panel considered Mr B’s arguments. The panel noted D had been offered a good school near to the family’s home address. They noted Mr B’s argument that the family had been experiencing racial prejudice but concluded these concerns related to the neighbourhood and not the school itself. The panel decided the prejudice to D did not outweigh the prejudice to the school. They considered many families in Hertfordshire were in a similar situation.
28. Mr B says there are no issues with behaviour or attainment in Year 4 at School X and this issue was not raised during the appeal hearing. The clerk’s notes say “in yr 4 some below age attainment…work in progress…behavioural issues … pressures in areas e.g. Behaviour support”. So, the issue was raised at the hearing.
29. Mr B says a child was allocated a place in Year 4 a few days before the appeals and his son should have been allocated this place.
30. The clerk’s notes of the hearing and the decision letter explain this. A child left Year 4 so a place was offered to a child from the waiting list. The child was offered a place under Rule 5 because School X was his/her nearest community school. Mr B’s son could not be offered the place under this rule because his allocated school is his nearest community school, not School X. He could therefore only be considered for a place under Rule 6-distance from the school. Waiting lists are ranked in line with the published oversubscription criteria. Admission authorities must give children priority based on this and not on the date their application was received or the date their name was added to the list. There are therefore no grounds to criticise the Council for offering the place to the child who had priority under Rule 5.

The decision letter

31. The clerk to the appeal panel wrote to Mr B explaining the panel’s decision. The letter explained the panel had considered his arguments and the maps he provided showing the route to the schools but concluded that, although the family had many difficulties, their situation was not so exceptional or sufficiently strong as to outweigh the prejudice to the school if another child were to be admitted. The letter explained the panel had considered Mr B’s concerns about racial prejudice but concluded there was no evidence that this would be the case at the allocated school. It was also satisfied that many schools in the county cope with a diversity of abilities and ethnic backgrounds. The panel also felt that travel arrangements may not be such a challenge as the allocated school was very near the family home.
32. I am satisfied the letter properly explained the reasons for the panel’s decision.

Appeal for a place for Mr B’s son at School Y

The appeal hearing

33. The Council’s written case stated the PAN was 60 and it had allocated places up to the PAN. The school hall and dining room were already full causing issues for school assemblies and lunchtime provision and classrooms for the older children were small and cramped. Resources were stretched to capacity with several classes having to share teaching assistant (TA) support. The admission of an additional child would place more strain on teachers and TAs as well as having a negative impact on pupils’ progress. Year 4 has a high level of special educational needs (SEN). The level of SEN at the school is 13% which is slightly above the national average. The school also has a high level of social need with social services involvement. Year 4 classes are challenging because of many social, emotional and behavioural issues. The class has also had a lot of teacher changes and teachers were currently working on stability and behaviour management to support children’s well-being and to improve progress following a dip.
34. The clerk’s notes record the presenting officer explained resources were stretched with classes sharing TA support. There was only one TA between 60 pupils in Year 4 who were exhibiting challenging behaviour. The school has a high level of SEN and social need and Year 4 was particularly challenging. She also explained the hall and dining room were at full capacity and the classrooms were small and cramped.
35. Mr B put forward his case as previously. He explained his mother needed to receive her medication on time and needed a significant amount of care. It was impossible for his wife to get the children to two different schools on time. He argued the Council had not given enough consideration to the children’s need to be together. He also argued his daughter already had a place at the school and if his son could also attend this would make things much easier for the family. He explained his son has no SEN and would integrate well. He also explained that, when choosing schools, he had looked at numbers of EAL children and did not want a faith school.
36. The clerk’s notes of the decision-making show the panel was satisfied the admission arrangements comply with the law and that they had been correctly and impartially applied. The panel was satisfied the admission of an additional child would prejudice the provision of efficient education or efficient use of resources at the school. In particular, the panel noted there was high SEN at the school, a lower age of achievement and budgeting gaps.
37. The panel then considered Mr B’s arguments. It noted D’s allocated school was closer to home and had a good Ofsted report. The panel concluded the prejudice to D did not outweigh prejudice to the school.

The decision letter

38. The clerk to the appeal panel wrote to Mr B explaining the panel’s decision. The letter said the panel had considered Mr B’s comments and the evidence he provided concerning his mother’s needs and the challenges of the school commute. They also noted D’s allocated school was very near to the family home and concluded this may not be such a challenge when it came to travel arrangements despite the family’s responsibilities. The panel also concluded that, despite the family having received racial abuse in the area, there was no evidence to suggest the experience at the allocated school would be negative. The panel considered Mr B’s wish for the children to attend schools with a reasonable representation of children with EAL but were of the view that there were many other schools in the county who cope with a diversity of needs, abilities and ethnic backgrounds. The panel appreciated Mr B had to get the children to two different schools and noted the maps he presented at the hearing showing the routes. But it decided Mr B’s case was not so strong or exceptional as to outweigh the case for the school where there was very strong evidence to show pressure on staff who have to support a high level of social needs and challenging behaviour.
39. I am satisfied the letter properly explained the reasons for the panel’s decision.
40. Mr B says the decision letter was primarily based on the Council’s argument that the current Year 4 had a high level of social need. He says none of this was backed up with strong supporting evidence. This information was set out in the Council’s written submission and orally at the hearing. It is a matter for the panel’s judgement as to what weight to give this information and whether further evidence was required.

Additional information

41. Mr B requested further information from the Council which was given to him the day before the appeal hearing. He says the officer told him she would share this with the panel on the day of the appeal but did not do so.
42. The Council stated in an internal email that it would not be possible to collate the information in time to circulate it before the appeal, but the presenting officer would ensure all relevant information was available at the hearing.
43. Mr B says that, on the day of the hearing, he handed the clerk printed copies of the information he had received from the Council together with a letter from his mother’s doctor and some maps showing distances from his home to the various schools. He says the clerk took the maps and the doctor’s letter to give to the panel but there was no need to share the other information. Mr B therefore assumed the panel already have the information. But, after the hearing, he discovered the panel had never been given the documents.
44. Another internal email confirms the presenting officer did not give the panel a paper copy of the response sent to Mr B but she said she answered everything the panel wanted to know verbally at the appeal. The officer says Mr B raised many of the points at the hearing and they were discussed so the panel will have noted the answers.
45. Paragraph 2.10 of the School Admission Appeals Code states, “the clerk must send all the papers required for the hearing, including the names of the panel members, to both the parties and the members of the panel a reasonable time before the date of the hearing… An appeal panel must decide whether any material not submitted by the specified deadline is to be considered, taking into account its significance and the effect of a possible need to adjourn the hearing”.
46. The Code is therefore clear that it is the panel’s responsibility to decide whether any new material should be considered and not the responsibility of the clerk.
47. In this case, the appeal panel did not decide whether the late information submitted by Mr B should be considered as it was not given this information by the presenting officer or by the clerk. The clerk should have given the information Mr B had brought to the hearing to the panel so it could decide whether the information should be considered. Failure to do so was fault.
48. Mr B says not all the information contained in the papers was mentioned at the hearing and he believes that, if the panel had considered all the information, it may have altered its decision. It is not clear from the clerk’s notes of the hearing whether all the information was raised at the hearing and there is therefore doubt about whether or not this was the case.
49. The fact that the panel did not have the opportunity to reach a decision on whether not this information should be considered calls into question its decision on D’s appeals for School X and School Y. There is sufficient uncertainty about whether the information could have affected the outcome to cast doubt on the fairness of the proceedings. However, I do not consider this calls into question the panel’s decision on C’s appeal for School X because this was an infant class size appeal and there are therefore very limited grounds on which the panel could have upheld the appeal. In any event, C has now been offered a place at School X from the waiting list.

Other matters

50. Mr B says he was stopped from setting out his argument. However, the clerk’s notes at the end of C’s appeal state the chair asked, “do you feel you’ve been given the opportunity to say all you wish?”. The clerk noted Mr B replied “yes”. The clerk’s notes in respect of D’s appeal for School Y state that the chairman said, “You’re repeating yourself”. The clerk noted that Mr B agreed. Mr B says he did not agree.
51. There is clearly a conflict of evidence here. The only written evidence available is the clerk’s notes which do not support Mr B’s view that he was not allowed to put forward his arguments. It Is clear from the notes of each appeal that Mr B did put forward his arguments and I am satisfied the panel were aware of them. I do not therefore intend to pursue this issue further.
52. Mr B says the presenting officer was present during the deliberations stage but he was not. The panel’s deliberations in respect of all three appeals took place at the end of all the appeal hearings. The clerk’s notes of the deliberations relating to D’s two appeals set out at the top of the page the names of the panel members, the clerk and the presenting officer. The note of deliberations relating to C’s appeal set out all these names and Mr B’s name despite him not being present. The clerk has confirmed that neither the presenting officer nor Mr B were present during the panel’s deliberations and she wrote their names on the sheet in error. Mr B has confirmed he was not present so I accept the clerk’s explanation.

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Agreed action

53. the Council has agreed that, within one month of the Ombudsman’s final decision, it will:
• offer Mr B a new appeal for his son for School Y. The appeal should be considered by a new panel and a new clerk; and
• ensure that clerks and panel members have read this decision and remind them that detailed reasons for the panel’s decision should be clearly communicated to the applicant in the decision letter.
54. The Council has also agreed that, within three months of the Ombudsman’s final decision, it will review the training needs of its clerks and panel members in relation to ensuring that the reasons for the panel’s decision are clearly communicated to the applicant.
55. I did not recommend a new appeal for Mr B’s son for School X because Mr B’s daughter has now been offered a place at School X which was accepted. As a result, Mr B attended a fresh appeal hearing for his son for School X on the grounds of exceptional change of circumstances as he now has a sibling at the school. Mr B has therefore had an opportunity to present his case to a new panel. It would not therefore be appropriate for the Ombudsman to recommend another appeal for School X.

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Final decision

56. I have found evidence of fault in that the panel was not given the opportunity to decide whether late information submitted by Mr B should be considered at the hearing. This causes Mr B a significant injustice because it raises doubt as to whether the outcome of his son’s appeals could have been different if the panel had been given this opportunity.
57. I have also found the Council was at fault in that the decision letter in respect of the appeal for Mr B’s daughter did not adequately explain the reasons for the panel’s decision. However, this does not in call into question the decision itself.
58. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman