Summary: Ms X complained about the Appeal Panel’s decision to refuse her appeal for her child to attend Reception year at the School. There was fault in the way the Panel considered the appeal which leads to uncertainty over the Panel’s decision. The Council has agreed to offer Ms X a fresh appeal.

The complaint

1. Ms X complained about the Appeal Panel’s decision to refuse her appeal for her child to attend Reception year at the School. The Council is the Admissions Authority for the School.

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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. 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 have considered the information supplied by Ms X and have spoken to her on the phone.
5. I have considered the information supplied by the Council including the Clerk’s notes of the appeal panel hearing. I have also considered the School Admission Appeals Code 2012.
6. I gave Ms X and the Council the opportunity to comment on a draft of this decision.

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What I found

7. Ms X applied for a Reception place for her child at the School.
8. The School has a published admissions number of 45. It received more applications than places, so the Council applied the oversubscription criteria. This stated places would be allocated first to those with a statement of special educational needs naming the School and then applicants would be allocated places in the following order:
• Looked after children (children who are in the care of the local authority).
• Those with medical/social circumstances that are directly relevant to the School concerned.  
• Children with siblings who will still be attending the School at the time of the younger child’s admission.
• All other children based on how close the child lives to the School based on straight line distance from the home to the School.
9. The School allocated 21 places to those with siblings at the School. The remaining places were allocated based on distance. Ms X’s child lives further away than the last place allocated so was refused a place.
10. Ms X appealed for a place at the School.

The appeal

11. Independent school admission appeals 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.
12. 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.
13. Case law (R (on the application of DD) v Independent Appeal Panel of the London Borough of Islington [2013] EWHC 2262 (Admin)) allows panels to consider whether the admission of a pupil will breach the infant class size rules in future infant class years and not just the year of admission.
14. 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.
15. The information provided to Ms X before the appeal showed the School has a published admissions number of 45 pupils. Reception is taught in two classes of 22 and 23 with a full-time equivalent teacher to each class. Years 1 and 2 were then organised into three classes with 30 pupils and one teacher in each class. At the time of Ms X’s appeal the School had 35 pupils on roll in year 1 (10 less than its published admissions number) and 45 on roll in year 2.
16. In her appeal case Ms X stated the School currently had 35 pupils on roll in year 1 and so the School had capacity. Should the numbers increase in future, they considered the Council had scope to reorganise classes. In addition, the School had lower than the national average of children with special education needs. They also explained their child’s emotional well-being would be affected if they moved to another school as they had attended the School’s nursery.
17. At the appeal the Council presented its case. It had allocated places in line with the published admissions number of 45 pupils. It placed Reception children into two classes. It explained that infant class size prejudice would apply in future years. The clerk’s notes record there were places available in year 1 but it anticipated it would reach its published admission number due to building work in the area.
18. Ms X and a relative presented their case. Family members, who lived near the School, assisted with before and after school care. Going to the allocated school would involve a significant journey before and after school. In addition, Ms X’s child was settled at the nursery at the School.
19. In the notes of the summing up the Clerk recorded ‘class size case – anticipate year 1 will fill’.
20. The Clerk’s notes record the Panel refused the appeal unanimously based on future infant class size prejudice.
21. In the decision letter the Clerk to the appeal panel set out that ‘Reception year would be taught in two classes, one having 22 pupils in it and the other having 23 pupils in it. Whilst admitting another pupil to this Year group now would not breach Infant Class Size legislation in either of those classes, it would breach the legislative provisions when the Classes moved into Year 1 as the Year Group would then be taught in three mixed year classes (Years 1 & Years 2). It was the view of the Admission Authority that to exceed the limit of 45 would require the school to appoint another teacher which was not possible given the budgetary constraints’.
22. The letter noted ‘the presenter told the Appeal Panel that 45 children would be admitted to Reception in September 2019, and therefore if another pupil was admitted to Reception now, the problem of class size prejudice would come into play next year when the classes were mixed with the new Year 2 pupils’.

Findings

23. As the School’s published admission number for Reception is 45, with two Reception classes and two teachers, the infant class size limit does not apply in the Reception year. However, case law means appeal panels should consider whether infant class size prejudice will occur in future years and not just the current one as the infant class size limit applies in Reception, year 1 and year 2.
24. The Panel was therefore entitled to consider what would happen when the Reception year moved through the School. However, the presenting officer and decision letter referred to future infant class size prejudice applying when the current Reception year progressed to year 1. This is incorrect.
25. The current year 1 is undersubscribed by 10 pupils. When the Reception year are in year 1 and mixed with the then year 2, there will be 80 pupils in three classes, so below the infant class size limit. The presenting officer suggested the School will fill up to its published admission number in year 1 due to local building work but this is tenuous and not evidenced. The decision letter also stated class size prejudice would come into play when the classes were mixed with the new year 2 pupils. This is fault.
26. It was open to the Panel to consider what would happen, and whether future infant class size prejudice would occur, when the current intake to Reception year moved from year 1 into year 2, given the School must admit up to its published admissions number, but there is no reference to this in the notes of the appeal or in the decision letter.
27. Had it considered the issues properly the Panel may still have concluded future infant class size prejudice would occur. However, I cannot say for certain what decision the Panel would have reached had it considered the appeal properly.
28. In addition, the Clerk’s notes of the appeal panel hearing do not record the Panel’s decision-making process. They note future infant class size prejudice but not how the Panel considered this issue or reached its view. There is no record of how it considered whether the decision to refuse a place was one which a reasonable authority would have made in the circumstances.

Agreed action

29. The Council has agreed, within one month of the date of this decision, to:
• offer Ms X a fresh appeal with a different panel.
• remind clerks of the need to record the Panel’s decision making and the points taken into account in reaching the decision on an appeal.

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Final decision

30. I have completed my investigation. There was fault leading to injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman