Summary: The Council was not at fault for the school admissions appeal panel’s consideration of Miss B’s appeal. As there was no fault in how the panel made its decision, the Ombudsman cannot question the decision itself.

The complaint

1. The complainant, whom I refer to as Miss B, complains that the Council refused her son a place at her preferred school, and the school admission appeals panel did not uphold her appeal against the refusal.

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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 admission 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 an admission authority’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 considered information provided by Miss B and the Council (which is the admission authority for Miss B’s preferred school).
5. I wrote to Miss B and the Council with my draft decision and considered their comments.

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What I found

Law and guidance

The 2014 school admissions code

6. The code, which sets out statutory guidance on how authorities should deal with admission arrangements, says that infant classes must not contain more than 30 pupils with a single teacher, except in exceptional circumstances.
7. The code says children who are admitted under exceptional circumstances will remain in their class as a ‘excepted pupil’ until the class number falls back to 30.
8. The code says excepted pupils are:

• children with education, health and care (EHC) plans admitted outside the normal admission round;
• looked-after children (LAC) and former LAC admitted outside the normal admission round;
• children admitted because of a procedural error made by the admission authority when dealing with the application;
• children admitted after an appeals panel upholds an appeal;
• children who move into the area outside the normal admission round and for whom there is no other school available within reasonable distance;
• children of UK service personnel admitted outside the normal admission round;
• children whose twin (or sibling from a multiple birth) is admitted other than as an excepted pupil; or
• children with special educational needs (SEN) who attend a special school or SEN unit attached to the school, and who attend some infant classes in the mainstream school.

The 2012 school admission appeals code

9. This code sets out statutory guidance on how admissions authorities and admission appeals panels must deal with appeals.
10. The code says there are two stages to an infant class size appeal, but the panel must dismiss the appeal at the first stage if they find:

• the authority’s admission arrangements complied with admission law and were correctly and fairly applied; and
• the decision to refuse admission was one which a reasonable admission authority could have made.

The Council’s admission arrangements 2019-20

11. If a school for which the Council is the admission authority receives more applications than it has places available, the Council will assign places with the following priority:
1. Children with EHC plans on which the school is named;
2. LAC, or former LAC;
3. Children who live in the school’s catchment area and have a sibling at the school;
4. Children who live in the school’s catchment area and have a sibling at a feeder school;
5. Children who live in the school’s catchment area and have a disability;
6. All other children who live in the school’s catchment area;
7. Children who have been given a place at a specialist unit attached to the school;
8. Children who live out of the school’s catchment area but have a sibling with special educational needs (SEN) at the school;
9. Children who live out of the school’s catchment area but have a sibling without SEN at the school;
10. Children who live out of the school’s catchment area but have a sibling at a feeder school;
11. Children who live out of the school’s catchment area but have a disability;
12. Children of staff at the school;
13. All other children.
12. If not all children within one of the categories can be admitted, then places will be decided by the distance each child lives from the school, ‘as the crow flies’. If the distance two children live away from the school is the same, and both children cannot be admitted, the Council will randomly assign the final available place to one of those children.

What happened

13. In September 2018, Miss B applied for her son to start in Reception at her preferred school in September 2019.
14. The Council wrote to Miss B in April 2019 and told her it had refused her application. It said the school was oversubscribed and it had applied its admissions arrangements to decide placements, which meant that Miss B’s son did not get a place. It offered her son a place a different school instead.
15. Miss B appealed the Council’s decision. She said her son attends her preferred school’s nursery and has a sibling at the school. She said she cannot drive and cannot take her children to and from different schools. She said that, from 16 July 2019, they would be living around half a mile away from the school (rather than the four miles they lived away from the school when she applied). She said her son has severe anxiety and was at risk of abduction from his estranged father when he attended a different nursery.
16. The appeals panel heard Miss B’s appeal on 2 July. The Council told the panel the school’s published admission number (PAN) is 45. It said the school admits 45 children in Reception because it teaches Years 1 and 2 together in three classes of 30, which is the maximum class size allowed by law. It said admitting more than 45 children in Reception would lead to future breaches of the infant class size limit.
17. The Council said Miss B’s son was in category 9 of its admissions arrangements (children who live out of the school’s catchment area but have a sibling without SEN at the school). The final place in the admission round was allocated to a child who lived 2.489 miles away from the school. Miss B and her son lived 4.223 miles away.
18. The panel wrote to Miss B on 4 July and told her that her appeal was unsuccessful. It said part of the Council’s admissions arrangements were not compliant with the law, but that this had no impact on the decision to refuse her application. It said the Council’s oversubscription priorities had been applied correctly.

19. The clerk’s notes from the hearing say the panel were sympathetic to Miss B’s position, but could not take personal circumstances into account. The clerk clarified this in the panel’s appeal decision notice, and said:

Whilst the Panel had sympathy with the family’s circumstances, it was unable to consider these beyond the statutory grounds. Therefore the Panel concluded that the decision to refuse admission was one which a reasonable admission authority would have taken in all the circumstances of [the] case.

20. Miss B wrote to the Ombudsman and said the Council’s admissions arrangements had not been applied correctly because – as well as her grounds of appeal – she and her children live in the school’s catchment area.

Analysis

21. When a parent appeals for a place in an infant class of 30 pupils there are normally limited grounds for a successful appeal. This is because the law says an admission authority cannot admit more than 30 pupils to an infant class, unless there are exceptional circumstances.
22. The panel had to dismiss Miss B’s appeal if it decided the Council had applied its admission arrangements correctly and fairly, if the arrangements were lawful, and if the refusal decision was one which a reasonable authority could have made.
23. The panel found the admissions arrangements were not lawful, but that this had no impact on Miss B’s son. As the the panel felt the PAN was too high (and breached infant class size legislation), I agree that this issue did not affect Miss B’s application. A lower PAN would have reduced her son’s chance of getting a place, not increased it.
24. The panel found the Council’s oversubscription priorities were applied properly. Although Miss B has now moved into the school’s catchment area, the panel was entitled to consider how the Council dealt with the application at the time – when she still lived further away.
25. The clerk’s notes say the panel could not consider Miss B’s personal circumstances, to which was later added, “beyond the statutory grounds”.
26. The Council did not make clear exactly what the ‘statutory grounds’ meant. However, it is true that appeals panels have limited powers to uphold infant class size appeals. An applicant’s personal circumstances are relevant if:
• they mean the child fulfils the excepted pupil criteria, as set out in paragraph 8 of this decision statement; or
• they mean the authority’s refusal is a not a decision which a reasonable authority would have made.
27. Miss B’s son does not qualify to be an excepted pupil, and the panel considered the circumstances of the case before deciding the Council’s refusal was reasonable.
28. I cannot question an appeal panel’s decision if there was no fault in how it made the decision. As the panel followed the procedure in the appeals code, and gave (a necessarily limited) consideration to Miss B’s circumstances, I do not consider there to be evidence of maladministration, and I have not found fault with the Council.

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Final decision

29. The Council was not at fault for the school admissions appeal panel’s consideration of Miss B’s appeal. As there was no fault in how the panel made its decision, I cannot question the decision itself.

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Investigator's decision on behalf of the Ombudsman