Summary: Mr B complains there was fault in how an independent education admission appeal reached its decision on his child’s appeal. We uphold the complaint, finding an appeal panel did not provide satisfactory reasons for its decision. This causes uncertainty as the outcome of the appeal might otherwise have been different. The Council has agreed to arrange a fresh appeal.

The complaint

1. I have called the complainant ‘Mr B’. He complains there was fault in the decision of an independent education admission appeal. The panel upheld an earlier decision taken by the Council not to give a place for his child ‘C’ to attend a nearby primary school (‘School X’). Mr C says there was fault because:

• the Council representative at the appeal used evidence not shared with parents before the hearing;
• the Council presented false information to the panel;
• the Council representative took an unnecessary adversarial approach at the appeal;
• the Panel did not properly scrutinise the case put forward by the Council; especially in considering the case that admitting extra pupils to the School would cause prejudice to the education of others;
• the Panel did not properly take account of his submissions; this included a statement provided from C’s then Headteacher and information from School X’s Headteacher;
• the Panel took an irrelevant line of questioning at appeal suggesting bias in its decision;
• the Panel’s letter did not provide enough reasoning.

2. Mr B says this resulted in C’s case not receiving a fair hearing at appeal. So, Mr B considers the Panel reached an unsound decision on appeal and but for this C would have received a place at School X. Mr B says he feels let down by the appeal procedure and the experience has caused stress and anxiety for him and his family, including C.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. Before issuing this decision statement I considered:

• Mr B’s written complaint to the Ombudsman and supporting information he provided. This included detailed submissions made in response to an earlier draft decision when we initially considered his complaint.
• Information provided by the Council in reply to our enquiries. These included details of the application made for C to join School X and the Council’s refusal of a place. It included Mr B’s submissions appealing the Council’s decision and the written case the Council made to the appeal. It also included the Panel Clerk’s notes of the appeal hearing and the discussions of the Panel on the merits of the appeal as well as its decision letter.
• Relevant law and guidance as referred to below.
• Comments provided by Mr B and the Council in response to two draft decision statements setting out my thinking about this complaint.

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What I found

Relevant law and policy

6. Where parents apply for their child to change schools, a school admission authority must usually comply with their preference. But it can make exception where to do so “would prejudice the provision of efficient education or the efficient use of resources”. (School Standards and Framework Act 1998, section 86).
7. So, when an admission authority receives such an application it should provide a place at the preferred school if there is a vacancy. If there is no vacancy at the school applied for the admission authority should write to the parent refusing the application and telling them of the right of appeal. It can place a child on the school waiting list if there is no vacancy.
8. If a parent appeals a decision not to provide a place, then any appeal must go to an independent appeal panel. They must follow law and statutory guidance which sets out how an appeal will be heard (School Admissions Code 2014).
9. The admission authority must provide to the panel clerk “all relevant documents needed to conduct the hearing in a fair and transparent manner”. This includes any explanation for why the authority considers admitting an extra child will cause prejudice. The clerk must then copy the admission authority’s case to the appellant “in reasonable time” for the hearing.
10. The panel must consider whether:

• The school admission arrangements comply with the law.
• The admission authority properly applied the admission arrangements to the case.
• Whether admitting another child would prejudice the education of others.

11. The panel must uphold an appeal if it finds the child would have gained a place at the school but for a flaw in the admission arrangements or their application to the appellant’s case. It must also uphold an appeal if it finds admitting more children would not cause prejudice and it can allow all appeals. If material new evidence comes to light during the questioning of the presenting officer, the clerk must ensure the panel considers what bearing that evidence may have on all appeals.
12. In considering whether admitting an extra child would cause prejudice the panel must take account of the school’s published admission number. But the admission authority must still show the admission will cause prejudice over and above that number. The panel “must not reassess the capacity of the school”. However, it may take account of various matters in deciding this question. These can include considering what effect an extra admission would have on both the current and future academic years. Also, taking account of the school organisation and class sizes.
13. If the panel finds there would be prejudice it must then consider the appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
14. The panel must communicate its decision, “including reasons for that decision”, in writing.

Key facts

15. Mr B applied for C to join the Year 3 class at School X from September 2019. C would be transferring from a combined nursery and infant school. School X is a nearby primary school and Mr B’s address lies within its catchment area. It is a voluntary controlled faith-based school, where the Council acts as admission authority.
16. The Council advertised that parents transferring from infant to junior schools for September 2019 admission should apply by January 2019. However, it did not receive C’s application until April 2019. Mr B had earlier applied unsuccessfully for C to transfer to a different primary school (‘School Y’).
17. Mr B expressed a preference for C to join School X because:

• it is local;
• it is a faith-based school with a Christian ethos; Mr C considered C would benefit from a supportive atmosphere;
• C would also benefit from the small class sizes; C suffers anxiety in large buildings;
• it has a good academic reputation; C has an aptitude for maths the school could cater for;
• it has good physical education facilities and opportunities;
• C would have friends attending the school.

18. Mr B provided a letter of support from C’s Headteacher at their infant school. This confirmed C suffered anxiety in large buildings. It compared School X unfavourably with C’s allocated school. The Headteacher said “I strongly consider the only suitable school for [C] is [School X]”.
19. School X has a net capacity of 175 pupils and a published admission number for each year group of 25 pupils. When the Council received C’s application, the September 2019 Year 3 group contained 25 pupils. The Council therefore refused C’s application. Mr B appealed. The grounds of his appeal being as summarised in paragraph 17 above. The Year 3 group comprised pupils transferring from Year 2 of the school. So, had Mr B applied earlier he would have received the same decision.
20. The Council’s written case to the appeal panel, copied to Mr B, said the school had 174 pupils on the school roll. Its September 2019 Reception and Year 1 classes would have fewer than 25 pupils. But its Years 2, 4, 5 and 6 classes had between 26 and 28 pupils. The Council said classrooms “varied in size but three are only of sufficient size for classes of approximately 20 pupils each”. It also said the hall at the school could not hold all pupils on the school roll. It said the school had restricted dining space with some children eating lunch in the classroom. The school staggered lunch and break times to minimise crowding in communal spaces. It provided details of the limited number of pupils on the school roll who had special educational needs or for whom English is a second language.
21. C’s appeal was one of three heard on the same day for Year 3 admissions. The Panel chose to consider the appeal in two parts. The first, a grouped hearing, considered if the Council had shown that admitting an extra pupil would cause prejudice. The second, an individual hearing, considered Mr B’s arguments that C’s appeal should succeed, even if this would cause prejudice to the school.
22. The Clerk’s notes of the appeal show that during the hearing the presenting officer for the Council clarified the School now had 173 pupils on roll for September 2019 admission. The officer also clarified pupil numbers in each year group, with years 2, 4, 5 and 6 exceeding the published admission number. They also said that three classrooms could only accommodate 17, 20 and 23 pupils respectively. The School currently used those to teach years 1, 2 and 4 respectively. The officer said this meant, “one Key Stage 2 classroom (i.e. serving years 3 to 6) can only accommodate 23 children and so at some point is an overcrowded classroom”. The officer also said the school hall was small. The minutes say the School “split lunchtimes to minimise overcrowding”. Mr B says in providing this information the officer had documents not shared in advance with appellants.
23. The minutes show both appellants and members of the Panel questioned the Officer. Those questions included finding out the age of School X, built originally in the nineteenth century. Mr B considered the answer misleading as the school has a more modern extension and classrooms in its roof-space. The questioning also established Year 3 would occupy a classroom designed for 30 pupils. I noted one parent commented “the school told me every child has an assembly every morning” without any response recorded from the Officer.
24. Another statement from a parent was recorded as follows: “I recently noted school told to leave at least five spaces for this term”. Mr B says this was a reference to a conversation with the School Headteacher. Mr B says in his own conversation with the Headteacher they have indicated the School can accommodate more pupils in Year 3. The response to the statement made at the appeal from the Council representative was to advise the “school is not the admission authority. PAN of 25 because of limitations of whole building. According to authorities’ practices – school cannot admit more”. In answer also to another question the Clerk recorded the Council representative saying admitting another pupil would cause “significant prejudice in terms of capacity to school as a whole”.
25. The Panel considered the Council had applied its admission policies correctly to C’s case. It also considered the Council had shown that admitting an extra child would cause prejudice. The Clerk’s notes of the Panel’s discussion recorded one member “being unsure [the school] can take more based on classroom sizes”. A second said they considered some classrooms could take more pupils. But “Year 4 has more than it can accommodate and hall cannot accommodate all the children”. They also said “overall footprint of the school not able to take more children”. The third member based their view “looking at the whole school [..] Year 3 could cope with more but Year 4 could not. Based on whole capacity of the school”.
26. The Panel therefore went on to hear individual appeals. Mr B presented his case in support of his written appeal submission. The Council Officer and the Panel asked Mr B questions about why he applied late for C to join School X and why he had previously applied for School Y.
27. The Panel decided Mr B’s case was not strong enough to outweigh the prejudice caused to the school by admitting another pupil. The Clerk’s notes say that members all agreed that Mr B had not shown School X was the only school capable of meeting C’s needs. One member also highlighted Mr B applying late and not consulting or following Council guidance on when to apply.
28. The Clerk’s decision letter to Mr B summarised his case to the appeal. It said the Panel considered his case “not sufficient to over-ride the prejudice which they had accepted would result from admission of further pupils to the school”. The letter did not explain the Panel’s reasons for finding such prejudice met.
29. The Panel decided to uphold one of the three appeals after hearing individual cases.

My findings

30. I considered first if there was any fault in the Council’s decision not to allocate a place for C at School X when Mr B applied for this in April 2019. I found no reason to find such fault. I am satisfied the Year 3 group had 25 pupils in it already and this is the school’s published admission number. So, the Council could refuse C’s application. It follows that I cannot criticise the Appeal Panel for taking this view also. I am also satisfied the Appeal Panel had no reason to take issue with the school admission policies.
31. So, I have focused attention on the consideration given by the Panel to the next stages of the appeal, beginning with the question of prejudice. I note here the Council presenting officer gave numbers to the Panel on classroom sizes and numbers of pupils, different from what appears in the written case presented. The officer had up to date information. They did not share this with appellants in advance.
32. However, I do not find this undermined the fairness of the appeal. An admission authority’s submission to an appeal must be circulated a week before the hearing, with the statement prepared earlier. Small movements in pupil numbers can take place in the intervening period. We would criticise an admission authority that did not make a panel aware of such changes. I do not consider notice of the minor difference in pupil numbers needed circulation in advance. It did not amount to significant new information, or the Council advancing a new line of argument, for which appellants or Panel members should be prepared.
33. Similarly, I also consider the Council was not introducing significant new information when it clarified classroom sizes. Its written statement said the school had three classrooms that could each accommodate “approximately” 20 pupils. The Officer clarified at appeal the classrooms could accommodate 17, 20 and 23 pupils respectively. I consider the appellants suffered no disadvantage by the officer clarifying the exact numbers at the hearing.
34. I have gone on next to consider if the presenting officer gave the Panel any false information. I can understand why Mr B thought the answer to the question about the age of the school building was slightly misleading. However, I do not consider I could say it was factually inaccurate and there is no evidence panel members put weight on this.
35. But I consider Mr B has a stronger case when he draws attention to the statement the hall could not accommodate all pupils at once. This statement appears in both the written case and the Clerk’s minutes. Yet the minutes also note a parent advised the Panel that pupils took assemblies as one group; something Mr B later said the School Headteacher confirmed to him.
36. Reading the Council’s submission and the Panel minutes as whole I find some of the discussion around the school hall focused on its capacity at lunchtime. The statement appears that the School could not accommodate all pupils at one lunch sitting. I consider the Panel could reasonably consider the impact on the use of the school hall of admitting further pupils when deciding the question of prejudice. It could do so with reference to both assemblies and lunch-times. But it should have clearly established the facts about assemblies. As one member went on to cite this as a factor in their decision on the question of prejudice, the failure to do this was a fault.
37. On its own, I do not consider this fault enough to undermine the Panel’s decision. However, I consider there is fault also when I consider the other reasons recorded by the Clerk for the Panel’s decision on prejudice.
38. The decision hinged on the overall impact of extra pupil numbers on future academic years. The Panel was not obliged to accept Mr B’s view the Council had not established prejudice. I consider the Council did advance an argument for prejudice. The Panel heard evidence showing that while Year 3 would not be overcrowded in September 2019 by admitting another pupil, either it, or another class would face overcrowding the following year. Because one class with more than 23 pupils would have to use a classroom designed for that number. This was a relevant factor the Panel could take account of and give weight to.
39. I find the Panel asked questions about the Council’s case, so there was some scrutiny. But I do not find the scrutiny was enough. Because I consider that as part of its decision on prejudice the Panel had to also take account of the following factors:

• That the School was below its overall net capacity number. This had to be relevant if considering the impact of extra pupils on shared facilities such as the school hall, corridors and so on. At least two of the three panel members gave weight to the overall impact on the School as well as Year 4 in their decision. In which case overall pupil numbers would be a relevant factor.
• That the School Headteacher had reportedly indicated they felt the School could accommodate more pupils without difficulty. I consider it reasonable for the Council to point out it is the admission authority. But the view of the School Headteacher would still be relevant. As would the clearly documented information that all three-year groups above Year 3 contained over the published admission number. The Panel should have scrutinized more closely therefore the specific impact of these extra pupils on the smaller classroom used to teach Year 4 pupils. It could have adjourned if necessary, to take a statement from the Headteacher to clarify their remarks.

40. I do not find evidence in the Clerk’s minutes or the decision letter sent to Mr B the Panel considered these points. That was a fault.
41. The injustice which flows from the above is that I cannot be certain the outcome of the appeal would have been the same but for the fault. We consider uncertainty a form of distress. So, the appropriate remedy here is to seek a second appeal.
42. As I find fault in this stage of the appeal I do not need to also consider in detail how the Panel approached the individual hearing for Mr B.
43. But I have also considered the Panel’s letter to Mr B. I agree with Mr B this was inadequate. It gave no reasons for why the Panel had agreed with the Council that admitting extra pupils to School X would cause prejudice. So, this was another fault. In commenting on my initial draft decision, the Council has accepted this and said that it will review appeal letter in future to improve the information they contain and explanation given.

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Agreed action

44. To remedy the injustice identified at paragraph 40 the Council has agreed that within 20 working days of a decision on this complaint it will arrange for Mr B to have a fresh appeal. This will be heard by a different panel and different appeal clerk.
45. The Council will also contact the other unsuccessful appellant and offer them a fresh appeal.

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Final decision

46. For reasons explained above I uphold this complaint, finding fault in how an independent education admission appeal panel reached its decision. The Council has agreed to remedy the complaint by arranging a fresh appeal. I consider this provides for a fair outcome. So, I can complete my investigation satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman