Summary: Mrs B complains an independent appeals panel did not properly consider her appeal against the decision not to admit her child to her preferred school. Mrs B says the school is the only one of its nature in the area and her daughter would benefit greatly from a place there. The Ombudsman does not find fault with how the panel considered Mrs B’s appeal.

The complaint

1. The complainant, who I refer to as Mrs B, complains about the way an independent appeal panel (“the Panel”) heard her appeal. Mrs B says the Panel did not consider concerns she raised about evidence from the school and dismissed her submissions. She says the Panel’s decision letter is not an accurate reflection of what happened during the hearing.

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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 an appeal panel’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)
4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

5. I considered the information provided by Mrs B and spoke to her about the complaint. Mrs B then provided further documentation, which I reviewed. I sent a copy of my draft decision to Mrs B and the School for their comments.

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What I found

School Admissions Appeals

6. The Department for Education has produced the School Admissions Appeals Code 2012 (“The Appeal Code”) and the School Admissions Code 2014 (“the Admissions Code”).
7. The Appeal Code contains the procedure independent appeal panels must follow in appeals against admission decisions. It sets out a two-stage procedure.
8. At the first stage, panels must consider:
• whether the school’s admission arrangements comply with the Admissions Code and other legislation; and
• whether the admissions arrangements were correctly and impartially applied.
9. It must then decide if the admission of more children would prejudice the provision of education or the efficient use of resources.
10. Panels must uphold an appeal if:
• the admissions arrangements did not comply with the law or were not impartially applied and, but for this, the school would have offered the child a place; or
• the admission of additional children would not prejudice the provision of education or efficient use of resources.
11. At the second stage, panels must balance the prejudice to the school against the appellants case to admit the child. Panels must consider the appellant’s reasons for expressing a preference for that school.
12. The panel must consider the school’s published admission number (“PAN”). However, to refuse an appeal, the panel must show prejudice over and above the fact the school has already reached the PAN.
13. Appeals that may cause infant class size prejudice are dealt with under a separate procedure.
14. The Appeal Code says the authority must set a clear deadline for submissions and the clerk must send all relevant information to the Panel in a reasonable time. It says, if material is submitted after the relevant timeframe, the Panel must decide whether to consider this taking into account its significance and the likelihood it would lead to the hearing being adjourned.
15. The Admissions Code says schools must have a clearly defined catchment area and that area must be reasonable. It also says admissions authorities must consult on schools’ admission arrangements when it changes those arrangements or at least once every seven years. It must consult with any parents in the relevant area who have children between the ages of two and 18.

Background

16. Mrs B’s husband has a French language heritage. Their daughter was due to start at school in September 2019 and it is important to them that she learn French so she can converse with relatives. They applied for the School, which is a bilingual (English and French) stream of a local primary school. It is the only school of its nature in the area.
17. The School is its own admission authority. It has a PAN of 28 pupils to admit into reception each year. It has set out its oversubscription criteria in its admissions arrangements. When the school is oversubscribed it gives priority to children in the following order:
• 1. Children in public care
• 2. Children in priority need
• 3. Children with a sibling or siblings in the School
• 4. Children residing within the priority area
• 5. Any other children
18. Children in category four will be given places by random allocation.
19. Mrs B lives outside the School’s priority area so was placed in category five. The School offered places to 28 children within categories one to four. The School therefore did not offer a place to Mrs B in line with its oversubscription criteria.
20. Mrs B appealed the decision. She said it was important for her daughter to attend the School because it was the only bilingual school in the area.
21. Mrs B is only one road outside the priority area and raised concerns about how the priority area was drawn. She says the School is in a very affluent area and the priority area excludes children outside that area. She also says she is closer to the School that some people who live within the priority area.
22. Mrs B says she asked the School to confirm when it consulted on the priority area and provide evidence of this. She says the School did not provide the evidence she asked for.
23. The School submitted a statement in support of its decision. It said it had applied its admissions arrangements properly and impartially as Mrs B was not in the priority area. It said to admit an extra pupil would cause prejudice to the School. It gave several reasons, including:
• The agreed PAN is 28
• Staff employed on the French side of the school have contracts based on French law, which prevent them teaching classes of more than 28
• The school was at full capacity and it could not practicably make an extra classroom
• It could not employ another teacher based on its budget
• It would cause more limited access to books, computers and apparatus
• It would cause an increased workload to teachers and overcrowding in teaching rooms
• Pupils already in the school would suffer decline in their learning experience
24. Mrs B questioned the point about teachers being employed under French law. She said there was nothing in French law that prevented teachers working with classes of over 28. She also said that teachers’ contracts would be operated under English law. She asked the School to provide copies of the contract for teachers as evidence but says the School did not provide this either.
25. Mrs B says her representative presented her arguments to the Panel. She says the Panel took advice from the clerk, then said it could not look at the legality of the admissions arrangements. She says this contradicts what it said in its later outcome letter.
26. Mrs B also says the Panel refused to hear her submissions on why the priority area was not reasonable, including previous case law. She says the Panel took all the School’s submissions as the truth and dismissed hers.
27. The Panel did not uphold Mrs B’s appeal and sent an outcome letter explaining its reasons. It considered the School’s admission arrangements complied with the Admissions Code. It said the School’s representative explained the priority area was consulted on as part of the admissions arrangements in 2015/16 and it did not find the priority area was unreasonable. It was satisfied the School set the priority area in a legal fashion.
28. The Panel said it did not consider case law submissions from Mrs B about the reasonableness of the catchment area as these should have been circulated before the hearing.
29. Mrs B says the letter does not accurately reflect what happened. She says the Panel should not have dismissed her submissions.

Findings

30. I have investigated how the Panel conducted the appeal. It is not my role to decide whether the admissions arrangements did comply with the Admissions Code or if the Panel should have upheld the appeal. I can only look at whether there was any fault in how the Panel considered these questions. I do not find evidence of fault.
31. Mrs B’s main arguments in support of her appeal were:
• the School did provide evidence it had properly consulted on its priority area
• the priority area was not reasonable in line with the Admissions Code
• the School was not bound by French law in only accepting 28 pupils
• the benefit to her daughter of being accepted to the School outweighed any prejudice on the School
32. In the following paragraphs I set out my findings on how the Panel considered each of these points. The first three points are relevant to the first stage of the appeal procedure. The fourth point is relevant to the second stage of the procedure.

Priority Area - Consultation

33. The Panel has noted that the School’s representative explained when the consultation took place. It does not seem the Panel asked for evidence of this.
34. Mrs B says the representative told the Panel he had documentation to prove the consultation took place but did not produce this. It may have been helpful, for the avoidance of any doubt, for the Panel to ask to see the documentary evidence of the consultation. However, I do not find fault for it not doing so in this case.
35. There is a duty to consult generally on the admissions arrangements. The priority area forms one part of those arrangements. However, the significance of this on Mrs B’s appeal is likely to have been limited.
36. The Panel must not only find that the admissions arrangements did not comply with the Code, but that if they had done the School would have offered her child a place. It is not possible to draw that link in this case. Even if the School did not consult on the priority area, this does not mean that, if it had, it would have extended the area to Mrs B’s street. The School needed to consult with a lot of different parties on what it already considered a reasonable area. Even if Mrs B was in the priority area, it seems the School was heavily oversubscribed and there is no guarantee it would have offered her daughter a place under the random allocation.
37. The School maintains that it did consult on the priority area in 2015/16. This was four years ago so Mrs B’s daughter may not have been two by that point and she may not have been included in the consultation. I cannot see there is any duty for the School to continuously consult on its priority area if there are no changes.
38. On balance then, it is unlikely that, even if the School could not produce evidence of a consultation, it would have significantly impacted on the result of the hearing. Again, if the evidence was available at the hearing, it would have been helpful to produce this and avoid any ambiguity. However, for the reasons outlined above, this is not so significant that I would find fault.

Priority Area – Reasonableness

39. I note the Panel did not hear submissions from Mrs B’s representative on case law involving decisions about school admissions. The Panel said it should have been circulated before the hearing. I do not find fault in the Panel not hearing this. It can make this decision in line with the Code (as set out at Paragraph 14).
40. I understand there is some disagreement between Mrs B and the Panel about what it said it could look at. Mrs B says the Panel said it could not look at the legality of admissions arrangements, contrary to what it said in the outcome letter. She highlights two points in the minutes of the hearing at which the chair of the panel says the panel cannot challenge the School’s admissions criteria. The chair appears to be saying that they cannot question how the map was drawn.
41. I understand Mrs B’s point that this appears to contradict what the panel said in the outcome letter. However, it is clear from the outcome letter, that when making its decision, the Panel considered whether the admission arrangements, including the priority area, complied with the Code. It set out the reasons for its decision clearly in that letter. Therefore, despite any confusion or mistakes that may have taken place at the hearing, the panel did properly consider the matter when making its decision. I therefore do not find fault.
42. The Panel’s role is to consider each case on its own merits. It is difficult to see how much significance case law involving a judicial review could have had on the Panel’s decision. The Panel looked at the priority area. It heard Mrs B’s submissions that the priority area should be drawn in a circle and that it may exclude people based on income. It decided it could not find any evidence the area was unreasonable.
43. The Appeal Code says reasonableness is a very high threshold. In order to find the priority area was unreasonable the Panel would need to be satisfied that no rational authority could have considered the area was reasonable. I do not find fault in the way the Council considered this point. It is normal for priority areas not to be drawn as a circle. It is also normal that some people in the priority area may be further away from the school than others outside it. There are a multitude of factors that go into deciding a priority area.
44. I also note that, had the priority area been drawn in an even circle, this is no guarantee Mrs B’s home would fall in the area. The school is further south in the current area, with its borders already expanding further north towards Mrs B’s house than they do in any other direction.

Teacher’s contracts – French Law

45. The Panel did not ask the School to produce copies of the teachers’ contracts to prove the teachers could only teach 28 students. It also did not hear submissions from Mrs B’s representative that French law did not limit teachers to 28 students.
46. The question the Panel needed to consider was whether allowing an extra pupil would cause the School prejudice in delivering efficient education. Teacher’s contracts were one reason the School put forward. However, there were also other reasons, such as overcrowding, sharing resources and additional workload on teachers. The Panel has considered all these factors and found that accepting another pupil would cause the School prejudice.
47. The question of whether teacher’s contracts should follow French or English law is not a relevant one. What matters is what is in the contracts, and whether the School would need to hire another teacher.
48. I understand Mrs B’s frustration that the Panel took the School’s word, rather than asking for evidence. However, given the various different reasons on which the Panel found there would be prejudice, and the likelihood the hearing would need to be adjourned to obtain such evidence, I do not find fault in the Panel’s decision not to ask the School for copies of the teachers’ contracts before making a decision.
49. If Mrs B is concerned the School did not provide contracts to her in line with her request, this is a matter she could raise with the Information Commissioner. It is not something I would investigate directly as I can only look at actions of the appeal panel.

Balancing the arguments

50. Mrs B has extensively set out her reasons for why she wishes her daughter to attend the School. I sympathise with her situation. It is clear the School would be beneficial to her daughter, in that it would help her to learn French and converse with relatives abroad. However, I can only look at whether there is fault in how the Panel considered the information available. It is not my place to question the Panel’s decision, if it reached that decision properly.
51. I do not find fault in how the Panel considered Mrs B’s case against any prejudice to the School. The Panel has set out clearly in its decision letter how it found the School would suffer prejudice to the provision of efficient education and efficient use of resources. It has also set out clearly how it considered Mrs B arguments in favour of her daughter attending the School and the benefits this would bring. It has set out clearly that it found the prejudice to the School from accepting an additional child outweighed the Mrs B’s case for her daughter to attend the School. It is not my place to criticise that decision. I can see no evidence of fault in how it made the decision.

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Final decision

52. I have not found fault in how the Panel considered Mrs B’s appeal against the School’s decision not to offer her daughter a school place.

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Investigator's decision on behalf of the Ombudsman