Summary: There was no fault in how the Council’s school admissions appeal panel considered this appeal for a Reception class place. The Ombudsman has therefore completed his investigation.

The complaint

1. The complainant, to whom I will refer as Mrs J, complains the Council has refused her appeal against a decision not to award her daughter a place in her preferred primary school.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (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 reviewed Mrs J’s appeal form, the case papers and the appeal panel’s minutes.
5. I also shared a draft copy of this decision statement with each party for their comments.

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What I found

6. Mrs J has two daughters. The elder daughter – G – currently attends a primary school, to which I will refer as School 1.
7. Mrs J’s younger daughter – P – was due to start primary school in the academic year 2019/20. Mrs J says she forgot to apply for schools for P at the correct time, and so submitted a late application in March. She named School 1 as her only preference.
8. School 1 received more applications than its Published Admissions Number (PAN) of 60 (two classes of 30 pupils). The Council, as admissions authority, applied its over-subscription criteria. Under the criteria, all on-time applications are ranked first, before late applications.
9. P’s application was not ranked highly enough to be offered a place at School 1. She was instead offered a place at a different primary school, School 2.
10. Mrs J appealed the decision. She explained she wanted both her daughters to attend School 1. At the appeal hearing, she added that G was autistic. She said she would be unable to get both children to school on time if they were attending different schools.
11. The appeal panel did not uphold the appeal. In its decision letter, it explained the school had reached the PAN, and admission of an additional pupil would breach the legal infant class size limit of 30. The panel considered the admissions criteria had been applied correctly.
12. The panel also considered whether the decision was ‘reasonable’. It acknowledged Mrs J’s comment about G’s autism, but said the offer of School 2 was reasonable as it was a short distance from Mrs J’s home. The panel did not uphold the appeal.
13. Mrs J complained to the Ombudsman on 8 July.

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Legislative background

14. 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. There are only limited circumstances in which more than 30 children can be admitted. These are called excepted pupils.
15. There are special rules governing appeals for Reception and Years 1 and 2. Appeals under these rules are known as “infant class size appeals”. 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.
16. What is ‘reasonable’ 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 in light of the admission arrangements.
17. We cannot question the decision if it has been properly taken. If the panel has been properly informed, and used the correct procedure, then it is entitled to come to its own judgment about the evidence it hears.

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Analysis

18. When a school receives more applications than it has places (the ‘published admissions number’, or PAN), the applications will be ranked according to its over-subscription criteria. Each application will be placed into the highest appropriate criterion, and places are then allocated in descending order of rank.
19. School 1 has a PAN of 60, but received 90 applications. The Council’s over-subscription criteria are:
1. That the applicant is a looked-after child (LAC), or former LAC;
2. That the child has exceptional medical or welfare needs, which are supported by evidence.
3. That the applicant has older siblings already at the school; and
4. The distance between the school and the applicant’s home.
20. The Council also says it ranks all on-time applications first, before ranking late applications.
21. The last application which received a place at School 1 was also a late application, for a child with an older sibling at the school. However, this child lives less than half the distance from School 1 that Mrs J does, and so was ranked higher than P.
22. In infant class size appeals, the panel has very limited grounds to uphold an appeal. The law says an infant class must not have more than 30 pupils. If this number has been reached – as it had the case of School 1 – the panel can only uphold the appeal if it considers the admissions criteria did not comply with the law; that the criteria were not applied properly; or that the decision to refuse was one no reasonable authority would make.
23. I see no grounds to criticise the panel’s decision here. There is no suggestion the admissions criteria did not comply with the law, nor that the criteria were not properly applied.
24. I note Mrs J refers to G having autism, and gives this a reason for the children to both attend School 1.
25. This is arguably a matter which could have been considered under point 2 of the over-subscription criteria. Had Mrs J applied on this basis, and provided supporting evidence, I would expect the appeal panel to have considered whether the criteria had been properly applied in this respect.
26. However, I can see no evidence Mrs J raised this in her initial application, nor provided supporting evidence. She also did not mention this factor on her appeal form, and appears to have brought it up only during the hearing itself. The panel could not therefore find the criteria had been misapplied by the Council, because this was not a factor the Council had been able to consider.
27. The panel also considered the decision was not unreasonable, because Mrs J’s younger daughter had been awarded a place in a school which was within walking distance.
28. The Ombudsman is not an appeal body. In cases such as this, our role is to determine whether the appeal panel followed the correct procedure in making its decision. If we find it has, then we are unable to criticise it.
29. I appreciate Mrs J’s reasoning for why P should attend School 1. However, I cannot find fault in the appeal panel’s consideration. Refusing the appeal was a decision it was entitled to take under the circumstances, and I have no grounds to uphold a complaint about it.

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Final decision

30. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman