Summary: Mrs F complains about her appeal against the School’s decision to refuse a place for her child, G. There was fault by the School not providing details of how it allocated places and the names of the panel members to Mrs F before the appeal hearing. This did not cause injustice to Mrs F because the panel was still able to consider her appeal without fault. The School has agreed to amend its procedures to address the faults identified.

The complaint

1. Mrs F complains about the School’s decision to refuse admission of her daughter, G, at application and appeal. Mrs F says the Appeal Panel ignored the significant changes in circumstances about the medical diagnosis of her child. Mrs F believes the School has failed to show how it made its decisions to allocate places to children, and how the effective education and use of resources would be prejudiced by admitting her daughter, who is now classed as having a disability. Mrs F says the decision to refuse admission has caused considerable stress and worry as the school allocated to G is unsuitable.

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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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
4. If we are satisfied with a school’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)

How I considered this complaint

5. Mrs F gave consent for me to speak to her mother, Ms H, about her complaint. I have discussed the complaint with Ms H and considered the information Mrs F and Ms H provided in support of this complaint.
6. I have considered the information provided by the Admissions Authority and the School in response to our enquiries.
7. I have referred to the relevant statutory guidance set out in the School Admissions Code 2014 and School Admission Appeals Code 2012.
8. I have written to Mrs F and Ms H and the School with my draft decision and considered their comments.

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What I found

Legislative background

9. 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. 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.

10. 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.
11. 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.
12. The clerk to the appeal panel 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. This will allow opportunity for any objections regarding impartiality of panel members to be notified to the clerk. 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. (School Admission Appeals Code 2014, paragraph 2.10)

The School’s admission oversubscription criteria

13. The School’s admission arrangements set out how places will be offered where it receives more applications than the number of places available. The oversubscription criteria (in order) are:

• Looked After Children and previously Looked After Children.
• Children with an exceptional social, medical, education or religious need which can best be, or only met at this school (Exceptional needs of this kind will occur very rarely. It is strongly recommended that a written application is submitted in advance of the normal admissions timetable).
• Baptised Catholic children who have a sibling in the school at the time of admission.
• Baptised Catholic children resident in the parish of St Christopher’s.
• Other baptised Catholic children.
• Other children who have a sibling in the school at the time of admission.
• All remaining applicants.

What happened

14. Mrs F submitted an on-time application for her child, G, for a reception place for 2019/20 to the Local Authority. She listed St Christopher’s RC Primary School (the School) as first preference because G already attended the nursery there. Mrs F listed School B as her second preference as this was the next closest school.
15. The Local Authority wrote to Mrs F on 16 April 2019 to inform her G would not be offered at her preferred school because it was oversubscribed, and G did not rank high enough to gain a place. Mrs F was offered a place for G at her second preference school (School B). The letter included details of Mrs F’s right of appeal, a link to the relevant appeals section of the Local Authority’s website and the deadline by which she should submit an appeal (10 May 2019).
16. Mrs F submitted an appeal to the Local Authority on 17 April 2019. In her appeal, Mrs F explained there had been significant changes in G’s medical diagnosis since the deadline for admission applications. Mrs F explained G was undergoing tests for hypermobility syndrome and would therefore struggle to walk to the allocated place at School B. Mrs F submitted letters from two hospitals detailing G’s upcoming appointments for further tests.
17. The clerk to the appeal panel wrote to Mrs F on 26 June 2019 to invite her to an appeal hearing on 2 July 2019. The hearing was set out in two parts – a group hearing where the School would submit its statement and Mrs F would be allowed to ask questions, and private hearing straight after where the panel would be able to ask Mrs F questions about her individual appeal. The clerk enclosed copies of the procedures for the group and private hearings, and the School’s statement explaining why Mrs F’s child had been refused a place. The clerk also invited Mrs F to submit any further evidence in support of her appeal no later than three working days before the hearing.
18. Mrs F attended the appeal hearing on 2 July 2019 with a friend who was supporting her. The group hearing took place first and three sets of parents, including Mrs F, were able to ask the School’s representative (the Head Teacher) questions about allocation of places. The panel asked how the School had allocated the 30 places it had according to its oversubscription criteria. The School’s response was as follows:

• Looked After Children and previously Looked After Children – one child
• Children with an exceptional social, medical, education or religious need which can best be, or only met at this school – one child
• Baptised Catholic children who have a sibling in the school at the time of admission – 14 children
• Baptised Catholic children resident in the parish of St Christopher’s – nine children
• Other baptised Catholic children and other children who have a sibling in the school at the time of admission – 11, but the School chose five children based on distance.
• All remaining applicants – no children.

19. The panel concluded admission of an additional child would breach the infant class size limit and any measures taken would prejudice the efficient use of resources within the school.
20. The panel then heard Mrs F’s case in private. Mrs F’s friend read out a detailed statement which explained G’s condition and how she had been receiving help from teachers in the School’s nursery. Mrs F also explained it would be extremely difficult for G to get to School B because it was over a 30-minute walk from home compared to a 15-minute walk to St Christopher’s. Mrs F told the panel G was at a higher risk of falling and injuring herself the longer distances she attempted to walk. Mrs F explained she did not have the medical diagnosis for G at the time of application. She believed G’s medical condition moved her up the oversubscription criteria to a child with an exception social, medical, education or religious need.
21. The panel asked Mrs F questions about G’s condition and about the school where she had been allocated a place. The panel questioned why Mrs F had listed School B if she now felt it did not meet G’s needs. Mrs F explained she had been unaware at the time of applying that the school playground at School B was on an incline which would increase the risk of G falling. Mrs F said she was not prepared to take the risk of G falling and breaking bones by sending her to School B. Mrs F told the panel the admissions team had confirmed G would have been placed in a higher oversubscription category if her medical diagnosis had been known at the time of application.
22. The panel accepted G had a diagnosis of hypermobility syndrome and that this condition was quite common in children. The panel noted the following points:

• it did not consider that G’s needs could only be met by the School;
• it did not agree that the School’s admissions committee would have regarded G’s medical condition as an exceptional need as described in the oversubscription criteria;
• it was sure that School B could reassure Mrs F that it could meet G’s needs and organise any provision that would help minimise the risks of falls;
• both schools Mrs F applied for were less than a mile away from home;
• the Head Teacher’s comments that the School was set up to provide a Catholic education for Catholic children and G was not a baptised Catholic;
• the risk of G falling would be exacerbated in an overcrowded class;
• the School and the Local Authority had been clear in telling parents that having a child in the School’s nursery did not mean they would get a place in the School;
• the Admission Authority did not consider the distance from a grandparent’s house to the School and this would not have changed G’s oversubscription category.

23. The panel decided the School had applied its admission criteria correctly and the admission arrangements were lawful. The panel concluded the decision to refuse G a place at the School was reasonable and the allocated school would meet G’s needs. The panel unanimously refused Mrs F’s appeal.
24. The clerk to the appeal panel wrote to Mrs F on 8 July 2019 to confirm the panel’s decision to refuse her appeal.

Analysis

25. While I accept Mrs F did not have a formal medical diagnosis for G when she applied for a place at the School, it is not clear why she did not mention anything about G being prone to falling or the measures the nursery at the School had put in place to help G in the admission application. The School could not have been reasonably expected to have taken this into account when it considered Mrs F’s application.
26. There has however been some fault. The School did not provide in advance of the hearing written information about how the places had been allocated. This was provided at the group hearing and was necessary so the panel could satisfy itself there had been no fault in the allocation process. The clerk to the appeal panel also failed to provide Mrs F with the names of the panel members when she was invited to the group and private appeal hearings. These are administrative faults the School and the Admissions Authority need to address.
27. I am not persuaded the above faults impeded the panel’s ability to consider Mrs F’s appeal in accordance with the School Admission Appeals Code. Its determination included consideration of the infant class size, the application and lawfulness of the admission arrangements and finally the reasonableness of the School’s decision to refuse G a place.
28. Despite the School not having information about G’s medical needs when Mrs F applied, the panel did consider the information she provided about this in support of her appeal. I have not seen evidence to suggest the panel ignored or dismissed the information Mrs F provided about the difficulties G’s condition caused. I am unable to challenge the fairness or merits of a decision made without procedural fault.

Agreed action

29. To address the faults identified in paragraph 26, the School has agreed to review its procedure to ensure:

• its statement to admission appeal panels (and appellants) includes clear information about how it has allocated the places it has offered;
• its letter inviting appellants to admission appeal hearings includes the names of the panel members in accordance with paragraph 2.10 of the School Admission Appeals Code 2014; and,
• that staff are aware of these points and the procedure is followed consistently.

30. The School should complete the above recommendations within six weeks of my final decision.

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Final decision

31. I have completed my investigation and found fault with the School’s procedure for handling school admission appeals. This has not caused Mrs F significant injustice to warrant a personal remedy. The School has agreed to my recommendation to review its procedures to ensure they reflect best practice.

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Investigator's decision on behalf of the Ombudsman