Summary: Mrs C complains about the conduct of an independent school admission appeal panel hearing. We uphold the complaint finding the panel did not properly engage with the grounds of Mrs C’s appeal. This causes uncertainty as Mrs C does not know if the outcome of the appeal may have been different but for the fault. The Council has agreed to apologise to Mrs C in recognition of this injustice. It will also brief clerks and panel members on the lessons to be learnt from the complaint.

The complaint

1. I have called the complainant ‘Mrs C’. She complains that an independent school admission appeal did not properly consider an appeal for her child ‘D’ to attend a local primary school.
2. Mrs C says as a result she faced the difficulty of transporting her two children to different schools. While Mrs C has now resolved this by arranging for the children to attend a different school, she remains unhappy with how the appeal panel conducted her appeal, saying it caused distress.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. Before issuing this decision statement I considered:

• Mrs C’s written complaint to the Ombudsman and any supporting information she provided. This included information Mrs C provided to me in a telephone conversation.
• Background papers provided by the Council. These included details of Mrs C’s application for D to attend her preferred primary school and her written case to the appeal panel. I also considered the case made by the Council to the appeal panel and the minutes kept by the panel Clerk of the panel hearing and discussion. Finally, I considered the letter sent to Mrs C of the panel’s decision.
• Relevant government guidance referred to in the text below.

6. I also sent both Mrs C and the Council a draft decision statement which set out my proposed findings in this case. The Council accepted my draft findings and agreed to remedy the complaint as I suggested, while Mrs C did not comment further.

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What I found

Relevant law and guidance

7. Local authorities must ensure that primary and secondary education is available to meet the needs of the population in their area. (Education Act 1996, section 13). While parents have a duty to ensure that their child of compulsory school age receives suitable full-time education either at school or otherwise. (Education Act 1996, section 7)
8. Parents may apply for their child to switch schools during their primary education. They can do so with a view to transfer at the end of the school year, or during the school year (for example when moving into the local authority area). The admission authority must usually comply with any preference expressed by a parent. But it can make exception where to do so “would prejudice the provision of efficient education or the efficient use of resources”. (School Standards and Framework Act 1998, section 86).
9. So, when a council receives an application for a child to transfer schools it should provide a place at the preferred school if there is a vacancy. If there is no vacancy at the school(s) applied for the council should write to the parent refusing the application and informing them of the right of appeal.
10. If a parent appeals a decision not to provide a place, then any appeal must go to an independent appeal panel. They must follow law and statutory guidance which sets out how an appeal will be heard (School Admissions Code 2014).
11. The panel must consider whether:

• The admission arrangements comply with the law.
• The admission arrangements were properly applied to the case.
• Whether admitting another child would prejudice the education of others.

12. If the panel finds there would be prejudice it must then consider the appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.

The key facts – background

13. Mrs C lives in an urban location within the Council’s area. She has two children I will call ‘D’ and ‘E’. In December 2018 Mrs C applied for D to transfer from ‘School W’ to ‘School X’. D was in Year 2 of her education and the application was for September 2019 admission, meaning D would join the school at the start of Year Three. This would coincide when D’s younger sibling, ‘E’, began school in the Reception Class. The Council had offered E a place in the reception class at School X. Mrs C wanted to send both her children to the same school.
14. D has mild learning difficulties and attention deficit hyperactivity disorder (ADHD). This means she has special educational needs (SEN) and received support for this from School W.
15. The Council’s school admission service refused D a place at School X. Instead it offered D a place at ‘School Y’ which Mrs C put as a second preference if D could not have a place at School X.
16. Mrs C does not live within the catchment area for School X which is around 0.7 miles from her home address to the east. School Y lies between 1.1 and 1.5 miles from the home address to the north west. The distance between the two schools is around two miles. School Y is located close to School W.
17. Mrs C has a closer primary school to all those mentioned above, ‘School Z’ and her address is in the catchment area for that. Mrs C did not initially want her children to attend that school.

The appeal

18. Mrs C appealed the refusal of D’s application to join School X to the Council’s Education Appeals Team which is separate to and independent of its Admissions Team. She appealed in writing and attended an appeal hearing in person in late June 2019. I summarise Mrs C’s grounds of appeal as follows:

• That she would find it ‘impossible’ to take D and E to different schools so far apart. Mrs C does not drive.
• That School X could cater better than other schools for D’s SEN. School W provided a letter of support for Mrs C.

19. The Council, which acts as admission authority, argued that it could not provide a place for D at School X without prejudicing the education of other pupils. It said the school had a planned admission number of 90 pupils in the Year 3 group and this is how many pupils it had on the school roll. It said that admitting more pupils would create problems with overcrowding in places such as the assembly hall or corridors. It said there would be less teaching time for other pupils and fewer financial resources per pupils. It explained the School had other pupils with SEN and this also placed pressure on existing resources.
20. I noted the Panel asked various questions of the Council about its case. For example, it asked about the school structure and teaching arrangements. It decided unanimously that to admit more pupils would cause prejudice. The minutes of the panel discussion show the panel members put particular weight on the number of existing pupils at the school with SEN.
21. The Panel therefore went on to consider Mrs C’s grounds of appeal as summarised in paragraph 18. The minutes record the Panel asking questions about whether Mrs C had support in taking her children to school. For example, did she receive support from friends or family, including the children’s father. It also asked a question about how Mrs C managed currently, taking D to School W. Mrs C says these questions were unduly personal in nature. For example, asking if the children’s father “was still in their lives”, although this level of detail is not contained in the Clerk’s notes. I note also the Panel asked questions about D’s SEN and Mrs C’s plans if her appeal failed.
22. The Panel agreed by a majority to refuse Mrs C’s appeal. The Clerk’s notes of the discussion show the two panel members who refused Mrs C’s appeal, both believed School X was not the only school which could meet D’s SEN. The Clerk noted one panel member saying the appeal “was all about the travel arrangements”. But there is no note of any discussion of Mrs C’s concerns about taking her children to two different schools.
23. The decision letter sent by the Panel noted Mrs C’s grounds of appeal. It noted that E was due to attend School X. But it said the Panel did not consider Mrs C had made a case that was “sufficient to over-ride the prejudice” caused to the school by admitting an extra pupil.
24. After receiving this decision, Mrs C re-considered her options for sending D and E to the same school. She re-considered sending the children to School Z and found it could accept both children. They began attending the school in September 2019. Mrs C does not want either child to now move schools and so does not seek a further appeal for D. But she has continued with her complaint as she is unhappy with how the panel considered her appeal.

My findings

25. I can find no fault in the Council’s decision to refuse D a place at School X. I find the school had reached its published admission number for Year Three pupils from September 2019. As such, the Council was not under a duty to provide a place for D so long as it could offer an alternative, which it went on to do. It follows from this that I cannot fault the appeal panel for also finding the Council acted properly in initially refusing D’s application.
26. I also consider the appeal panel made a sound decision that to admit further pupils to School X would cause prejudice. The Council provided it with information showing the difficulties caused by admitting pupils over the planned admission number. I find evidence the Panel did not simply accept the Council’s case at face value. But asked probing questions to satisfy itself that admitting extra pupils would cause the prejudice claimed. I cannot see the Panel ignored any relevant information in reaching that view. Or took anything irrelevant into account. I have no reason to fault its decision on this part of the appeal.
27. The Panel therefore had to go on to consider if Mrs C’s reasons for wanting D to attend School X outweighed this prejudice. I find evidence in the minutes of the appeal and its decision letter that the Panel properly understood the grounds of Mrs C’s appeal. Its line of questioning shows that it gave some consideration to the arguments made by Mrs C around the difficulties faced in transporting her children to two different schools. Also, that it considered her view that School X could best meet D’s SEN.
28. I have considered Mrs C’s unhappiness with some of the questions asked by the Panel. I understand why the Panel would want to know if Mrs C had any support from family or friends to take her children to and from school. That would be relevant to her argument at appeal that taking two children to different schools was ‘impossible’. The Clerk’s notes are not a word for word account of all that was said at the hearing and so cannot provide for a finding on this point. But I accept on Mrs C’s account that some of the questions may have been put more sensitively. I ask the Council to note the concern even though I cannot uphold Mrs C’s complaint on this point.
29. However, I do find fault on other grounds. My concern is with how the Panel engaged with one of the two lines of argument raised by Mrs C in her appeal. In neither the minute of the Panel discussion nor the decision letter sent to Mrs C did the Panel address her case that she could not take her children to two different schools. So, while the Panel asked about family or friends’ support, it is not clear what account it took of the answers given by Mrs C. I also note it did not ask such questions as what times the schools opened or if there were public transport links between the two.
30. I do not find therefore the Panel reached a sound decision when considering if Mrs C’s case at appeal might outweigh the prejudice caused to the School. I am not satisfied it considered all evidence relevant to that decision.
31. This causes injustice to Mrs C as uncertainty, which we regard as a form of distress. Because she cannot be satisfied the Panel would have reached the same decision had it properly considered her case.

Agreed action

32. Usually, for the injustice identified in paragraph 31 we would want the Council to arrange a fresh appeal. However, in this case Mrs C has advised she does not want this as her children have both settled at School Z and she would not want to disrupt their education.
33. Instead, the Council has agreed that within 20 working days of a decision on this complaint its Education Appeals team will apologise to Mrs C accepting the findings of this investigation.
34. The Council has also agreed to learn lessons from this case. In February 2020 it will hold annual meetings with its appeal panel clerks and members. It has said this will include reminding both of the need to engage with all key arguments made by appellants in their appeals. It will also include a session on sensitive questioning of appellants.

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Final decision

35. For reasons set out above I uphold this complaint finding fault by an independent education appeal panel causing an injustice to the complainant. The Council has agreed action that I consider will remedy the injustice. I can therefore complete my investigation satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman