Summary: Miss B complains about how her late application for a school place for her child, and her appeal against the refusal of a place, was dealt with. The Ombudsman finds there was fault in the process followed in this case. The School has agreed to provide a fresh appeal hearing, which is an appropriate remedy for this complaint.

The complaint

1. The complainant, whom I shall call Miss B, complains St Michael’s Catholic Primary School failed to deal properly and fairly with her late application for a reception class place for her child and with her subsequent appeal.

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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)

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How I considered this complaint

3. I considered all the information submitted by Miss B about her complaint. I made written enquiries of the school and took account of the information it provided in response. I provided Miss B and the school with a draft of this decision and considered all comments received in response.

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What I found

Legal and administrative background

Infant class size appeals

4. Each infant school has a Published Admission Number (PAN). This is the set intake number for the school for first entry. The number uses a national formula and reflects the size of the school. The school must offer the PAN but must not exceed it, unless there are exceptional circumstances.
5. The law says that no class that contains a majority of infant children (Reception, Year 1 and Year 2) can contain more than 30 children with one qualified teacher, except in exceptional circumstances. The list of specific exceptions is set out in Regulations.
6. Independent appeal panels must follow the law when considering an appeal. There are only limited circumstances in which more than 30 children can be admitted. There are special rules governing appeals for infant classes. 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.

7. 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.
8. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to use its own judgment about the evidence it hears.
9. The Department for Education (DfE) has published statutory guidance about the conduct of school admission appeals. Admission authorities and appeal panels have a legal duty to act in accordance with the provisions in the Code. (The School Admission Appeals Code 2012)

The school

10. The school is a voluntary aided Catholic school with a PAN of 30. As a voluntary aided school, the school is its own admission authority. However, it delegates the admissions process to the council which is the local education authority. The council also administers admission appeals on the school's behalf.

What happened in this case

The application for a place

11. Miss B’s child, C, attended St Michael’s pre-school and was due to start primary school in September 2019, when she would be in the reception class. Miss B intended to apply for a place for her at St Michael’s primary school. When the closing date for applications, 15 January 2019, had passed, Miss B was told by the school that no application had been received and she therefore submitted a late application. Her application was unsuccessful, and she was offered a place at another school. Miss B appealed for a place at St Michael’s.

Miss B’s appeal submission

12. In her appeal submission Miss B gave information about her medical condition causing short term memory loss which contributed to her having failed to complete the initial application process. She also explained that her condition would prevent her making the journey to the allocated school on foot, and she explained that she does not drive and could not afford travel costs. She submitted a doctor’s letter confirming that she suffers from chronic pain and fatigue. She set out personal history and other circumstances she considered relevant. Finally, she said that she knew of two other children for whom late applications had been submitted who had been allocated places at the school.

The school’s appeal submission

13. The school prepared a written statement for the appeal hearing. It set out nine criteria to be applied in order when the number of applications exceeds the number of places available. In summary, and in order, these were:

• Baptised Catholic looked-after children and previously looked-after children;
• baptised Catholic children living in the designated former parish of St Michael’s;
• baptised Catholic children with a sibling in the school at the time of likely admission;
• baptised Catholic children living in other Catholic parishes;
• looked-after children and previously looked after children who are other than Catholic;
• children who are other than Catholic with a sibling in the school at the time of likely admission;
• children from other Christian denominations;
• children of other faiths; and
• children whose parents express a preference for a place at the school.

14. The tie-break within any criterion is the distance from home to school, with those living nearest having priority.
15. The school’s case also set out that late applications (those received after the closing date) will be considered alongside those received by the closing date under the following circumstances:

• The family were unable to complete an application form before the closing date because they moved into the school’s parish area after the issue of application forms; or
• The family were unable to conform with admissions timetable because of exceptional circumstances which prevented the applications arriving on time – the circumstances must be given in writing and attached to the application form.

16. The school’s written case did not set out how many applications had been received for the 30 Year R places for September 2019, nor how many places had been allocated under each of the over-subscription criteria.

The appeal hearing

17. At the hearing, the panel asked the school’s representative how many first preference applications for the school had been received. The representative said he did not know, but they were oversubscribed. He confirmed the over-subscription criteria had been applied up to criterion 6. He did not know the home to school distance of the last successful applicant: the clerk’s notes say “What was distance of last one admitted – don’t have – clerk to try”, which appears to indicate the clerk was to try to find out this information. However, the clerk’s role is independent, and it is not their role to find information to support the case put by either side in the hearing. The school’s representative said all allocated places had been from on-time applications.
18. When Miss B put her case, she explained the grounds for her appeal and twice referred to the two applications she believed had been made late for other children who nonetheless had been allocated places. The clerk’s notes from the appeal do not show any questioning of the admission authority in respect of this.
19. The clerk’s notes of the decision-making in this case say that this was an infant class size appeal and to admit additional children would breach the limit. It said there was no evidence of an error having been made in the admissions process. It said the decision to refuse a place was not unreasonable: it had been a late application and that was why Miss B had found herself in this position, and none of the exceptional criteria were met so the panel felt it must decline.
20. In the decision letter after the appeal, the clerk referred to the infant class size regulations and said the panel had been satisfied that to admit an additional child would breach the infant class size limit; that the school admission arrangements complied with mandatory requirements and had been impartially and correctly applied. It said: “In particular, it was noted that the School’s Governing Body had allocated places up to Criteria 6 to a distance of 973.56 metres”. As noted above, this was not recorded in the clerk’s contemporaneous notes of the appeal hearing. The clerk went on in the decision letter to set out the grounds Miss B had put forward in her appeal and said these had been considered but that the panel had decided that the decision to refuse admission was one a reasonable authority would have made in the circumstances of the case and so her appeal was not successful.

Analysis

21. During my investigation, Miss B provided me with a copy of one of the two applications she had referred to in her appeal as having been made late but treated as on-time. The copy seen appears to have been made online and is dated 18 January 2019. I asked for the school’s comment on the assertion by Miss B that two named children had been admitted despite their applications having been made after the 15 January deadline. The response obtained by the school from the admissions officer at the council stated that the applications for both these named children were received on-time. That is in line with what the school said at appeal, but is contradicted by the date on the form, as noted above, and the council has been unable to provide a copy of the application form for the second named child. The admissions officer at the council said in responding to my further enquiries that a grace period is allowed for post to arrive after the closing date (although, as noted above, the submission made on 18 January appears to have been done online). Miss B asserts that the admissions officer told her that the two applications were received before the allocation exercise was done, and so were treated as ‘on time’. But that is not what the admissions policy says will happen.
22. The information provided to the appeal panel does not say whether there were any on-time applications which were unsuccessful. It is matter of concern that the panel did not question how the two applications Miss B referred to as ‘late’ had been dealt with, but apparently accepted that no late applications had been received and concluded there was no evidence of an error having been made in the admissions process. From the information provided to me, I cannot say that due scrutiny was applied in this case by the appeal panel.
23. In addition, the school’s written case at appeal gave incorrect information in relation to the oversubscription criteria and in relation to how late applications would be dealt with if exceptional circumstances applied. The 2019 admissions policy, which is the one which would have applied in this case, sets out eight oversubscription criteria, not nine, and does not include reference to exceptional circumstances being taken into account to allow a late application to be treated as if received on-time.
24. On balance, because of the faults referred to above there is uncertainty about whether the relevant admissions criteria were correctly applied to all successful applicants and whether Miss B has been disadvantaged as a result of a failure by the panel to properly address this.

Agreed action

25. To remedy the injustice caused to Miss B by the uncertainty referred to above, I recommended that within four weeks of the date of the decision on this complaint the school offer her a new appeal hearing with a different Panel and Clerk. The school agreed to my recommendation.
26. The school has also confirmed that a review of its admissions documentation in respect of oversubscription is underway.

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Final decision

27. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman