Summary: Miss B complained about the way an appeal panel considered her appeal for a place for her daughter at the school. There is no fault in how the appeal panel considered Miss B’s appeal.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained about the way the appeal panel considered her appeal for a place at the school. Miss B complained the panel:
• failed to consider her representations and relied on wrong information; and
• failed to ensure the school followed the random allocation process correctly.

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The Ombudsman’s role and powers

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 we are satisfied with an appeal panel’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. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• considered 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;
• considered the School Admissions Appeals Code 2012;
• considered Miss B’s comments on my original draft decision; and
• spoke to the clerk for the appeals panel.

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What I found

Legal and administrative background

5. The school admissions code (the code) says admission authorities that decide to use random allocation when schools are oversubscribed must set out clearly how this will operate, ensuring that arrangements are transparent, and that looked after children and previously looked after children are prioritised.
6. The code goes on to say the random allocation process must be supervised by someone independent of the school, and a fresh round of random allocation must be used each time a child is offered a place from a waiting list.
7. The school admission policy says if there are more applicants than places in criteria 2-9, which sets out the oversubscription criteria, the tiebreak will be via a random allocation process. The random allocation process is supervised by a person not otherwise involved in the admissions process. The process is open to scrutiny by a suitably qualified external consultant appointed by the school governing body.
8. The school admission policy says the school will allocate equal numbers (30) to each denomination. This means the random allocation process is done separately for both the Catholic and Church of England applicants. However, if there are less than 30 applicants from one denomination the remainder is allocated to the other domination.
9. The school admission policy says children with a statement of special educational needs or education, health and care plan that names the school are offered a place without using the admission criteria and will count as part of the school’s published admission number.
10. The school admission policy says it will keep a waiting list for children who have not received a place. The waiting list is ranked according to the admission criteria. The policy says if there are more applicants than places in criteria 2-9 the tiebreak is by a random allocation process, supervised as set out in paragraph 7.

Analysis

11. 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.
12. Miss B applied for a place for her daughter in Reception. Her application and later appeal were unsuccessful. Miss B complains about her appeal.
13. 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.
14. 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.

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.

15. The panel must therefore first consider whether the school has correctly applied the admission criteria to the application. The school received more applications than places available. Miss B did not receive an offer of a place as the school allocated the places to children with more priority. Miss B’s application was in category 3. That is ‘baptised Church of England and Catholic children living on the Croxteth Park Estate at the time of admission.’ The panel decided the school had correctly applied the admission criteria and no child missed out on a place due to incorrect application of the admissions criteria.
16. The panel must then consider whether Miss B’s need for a place outweighs the problems an extra child would cause to the school.
17. 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.
18. The Panel considered whether the infant class size prejudice rules applied to Miss B’s appeal. There were two classes of thirty children admitted to Reception at the school. The Head explained in his submission to the panel the school does not have resources to fund an extra teacher. The panel decided, therefore, infant class size prejudice rules applied to Miss B’s appeal. This is a decision the Panel can take and there are no grounds for the Ombudsman to question it.
19. The evidence I have seen satisfies me the appeal panel properly considered points a and b, referred to in paragraph 14. Panel then went on to consider point c. The clerk’s notes record Miss B’s discussions with the panel at the hearing. I can see from the clerk’s notes Miss B appealed on the following grounds:
• sending her daughter to the school was one reason the family moved to the estate;
• her daughter has been with the same childminder since she was six months old and that childminder provides wraparound care for children educated at the school;
• she and her partner both work full time and travel a lot with their jobs and therefore need a school which could take their daughter often from early in the morning;
• the school allocated is not suitable;
• the family have only one car and if that is not available because one parent is on a travel day it would take two buses to get to and from the school to drop their daughter off;
• neither parent can reduce their hours;
• they live close to the school;
• the family trust the childminder, who is a friend of the family and they would find it difficult to place their daughter with somebody else; and
• they do not have alternative arrangements available within the family.
20. The panel decided none of these reasons satisfied it the admission authority’s decision was so unreasonable it could be described as perverse. As I am satisfied panel made that decision after considering Miss B’s arguments in support of her appeal I could not say it failed to reach its decision properly. So, I have no grounds to criticise it.
21. In reaching that view I am aware Miss B questions whether panel properly considered her case as the letter, refusing the appeal, referred to her only putting one school preference on the form. Miss B rightly points out that is inaccurate because she listed two schools on the application form. I am satisfied though the error here concerns the letter following the appeal and not to how panel considered the appeal. I say that because the notes from the appeal panel hearing record the chair noted Miss B had applied for two schools for her daughter. So, while there is an error in the decision letter I am satisfied that relates to the decision letter alone and not to how the panel considered Miss B’s appeal.
22. That is also the case for how the panel considered Miss B’s arguments in support of her appeal. As Miss B notes, the letter refusing her appeal does not refer to some issues she mentioned in her appeal. Again though, I am satisfied this concerns how the letter is worded rather than to how panel approached the appeal. I am satisfied the notes from the hearing clearly record the information Miss B provided and the closed part of the hearing show panel considered those arguments. I am therefore satisfied panel considered Miss B’s representations before refusing her appeal.
23. Miss B has raised a concern about how the school carried out the random allocation process. Miss B says the school used a trainer that regularly provides training to the school as the supervising person. Miss B therefore says she does not qualify as an independent person, under the terms of the school’s admissions policy or the school admissions code, which I refer to in paragraphs 5-10. The evidence I have seen satisfies me panel considered the way the school had carried out the random allocation process and had no concerns about that. I am also satisfied using a trainer from an external organisation satisfied the test of an independent person to oversee the random allocation as that person is not an employee of the school. I therefore do not criticise the appeal panel for deciding the random allocation was carried out properly.
24. As I understand it though, the school admitted another child when somebody allocated a place under criterion 3 asked to defer the place. The school says on the advice of the local authority it gave that place to the next ranked person on the waiting list rather than carrying out a further random allocation. I understand this was because the school had recently completed the ballot. On balance I do not criticise the school given it was close to the date of the ballot. In effect, that child did not receive an offer of a place for the year and therefore another place should have gone into the ballot and the school allocated it to the child next on the list, who would have gained the place had the school known of the deferral when the ballot took place. I would, however, usually expect the school to allocate any further places by random allocation when it has more children in that category on the waiting list than places available.
25. Miss B says someone has provided her with information that a child not resident on the estate got a place at the school. Miss B therefore questions whether the school allocated places properly. Miss B says she raised questions during her appeal about what information the school asked for to verify a person’s address. Miss B says she asked why the school would accept a utility bill as confirming the residence of a child rather than a child benefit letter. Miss B says panel did not follow that point up. I understand Miss B’s concern about how the school verifies addresses. However, the school has provided evidence which satisfies me the child Miss B refers to was admitted in accordance with the school’s admissions policy. I therefore have no grounds to criticise the appeal panel.

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Final decision

26. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman