Summary: There was no fault in the way the appeal panel considered Mr B’s appeal against the refusal of a school place for his son. The panel’s decision was not flawed by fault so the Ombudsman cannot question the outcome of the appeal. But the Council should make sure it clearly communicates the reasons for the panel’s decision.

The complaint

1. Mr B complains that the appeal panel failed to properly consider his appeal against the refusal of a place for his son at his preferred 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:
• Mr B’s complaint;
• the information presented to the appeal panel, the notes taken by the clerk during the appeal hearing and the panel’s decision letter following the appeal; and
• the current School Admission Appeals Code.
5. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

Legal and administrative background

6. Independent appeal panels must follow the law when considering an appeal. The panel must consider whether:
• the admission arrangements comply with the law; and
• the admission arrangements were properly applied to the case.
7. The panel must then consider whether admitting another child would prejudice the education of others.
8. If the panel finds there would be prejudice, it must then consider the appellant’s arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
9. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgement about the evidence it hears.

The application

10. Mr B applied to the London Borough of Richmond for a place in Year 7 for his son, C. He stated the address to be used for the application was his address in Hounslow. He said C was currently staying with his mother (at her address in Richmond) but, when he transferred to secondary school, he would be staying with him in Hounslow. LB Richmond decided C’s mother’s address would be used to process his school application.
11. Mr B challenged this decision. LB Richmond considered the information he provided but informed Mr B its decision remained unchanged.
12. Mr B applied for five schools in the London Borough of Hounslow (‘the Council’) but the Council could not offer C a place at any of them.
13. Mr B’s first preference was for School X. His application was considered under criteria 4 (distance). The last place offered was to an applicant living 0.934 miles from the school. C’s distance measurement was 4.503 miles so the local authority was unable to offer him a place at the school.
14. Mr B queried this decision saying he told LB Richmond to use his address for the application. The Council responded explaining that all applications are managed through the home local authority which, in Mr B’s case, is Richmond, so he would need to discuss the address used with them.
15. LB Richmond explained to Mr B that, if he wished to appeal against the decision to refuse C a place at School X he would have to submit an appeal to LB Hounslow as the school is within its area. Mr B therefore appealed to LB Hounslow against the decision to refuse C a place at School X.

The appeal

16. Mr B’s written case was that School X is very close to his home address. He and his wife divorced and have shared living arrangements for C. Mr B attached a copy of the court order which stated that C stays with Mr B from Thursday afternoon until Monday morning every other week and that he also has visiting contact on Wednesdays. The order states that any further arrangements were to be mutually agreed between the parents. Mr B said C currently spends half of his time with each parent. He said he and his former wife had agreed that their living arrangements would be changed to enable C to attend School X.
17. Mr B said one of the main reasons for applying for a place at School X was because it caters for its large number of Muslim students by providing halal food and allowing them to attend the mosque next to the school for prayers at lunchtime and on Fridays.
18. Mr B said C could not attend school in Richmond because it would be difficult for either of his parents to collect him and drop him off.
19. The Council’s written case stated that the PAN for School X for Year 7 is 270 and places had been offered up to this number. It argued that to admit another pupil would result in undue pressure being placed on classroom facilities including equipment and teaching materials. It stated that: the proportion of students eligible for pupil premium funding was above the national average; the proportion of students who speak English as an additional language is much higher than the national average and, to support these pupils and those with special educational needs, there may be a learning support adviser or teaching assistant in the classroom; staircases and corridors are narrow and crowded at lesson change over and break times; and there are not enough science laboratories which means that 25 science lessons are being taught outside of laboratories.
20. The Council also argued that the admission of any additional pupils would reduce the amount of attention each individual child receives from teachers which would be prejudicial to the provision of efficient education.
21. The clerk’s notes of the hearing record the presenting officer explained all this to the panel. Mr B then put forward his case. He explained that C used to live with his mother, but they had decided he would spend more time at his father’s home. He said C spends more than 50% of the time with him. Mr B said he had explained this to LB Richmond and it should have used his address for C’s application. He explained his address is very close to School X and it was important for C to attend that school because it is next door to the mosque.
22. The local authority representative explained to the panel that it would ultimately be the decision of LB Richmond which address should be used for the application. Mr B said LB Richmond was unaware of the continually changing situation and C had been spending more time with him over the last two years. He said that, if C had to attend a Richmond school, he would have to catch a bus and then be at home alone until his mother finishes work quite late.
23. The panel clarified with Mr B that when he made the application for a school place he put his address on the application form. Mr B confirmed he made the application and used his address as C lives with him most of the time.
24. The clerk’s notes of the decision-making show the panel was satisfied the admission arrangements complied with the law and had been correctly and impartially applied. The panel was also satisfied the admission of an additional child would prejudice the provision of efficient education or efficient use of resources at the school.
25. The panel then considered Mr B’s case for C to be admitted to the school even though it is full. This is known as the ‘balancing stage’ where the prejudice to C if he is not given a place is balanced against the prejudice to the school if he is. The clerk’s notes show the panel considered Mr B’s arguments. It noted the difficulties with split living arrangements but considered there was no clear proof that C resides mostly with his father. The panel decided there were no overriding circumstances to outweigh the prejudice to the school and voted unanimously to refuse the appeal.
26. Mr B says the panel did not properly consider the question of C’s home address.
27. The Council’s policy on shared or joint residence states that it is for the home local authority to determine if the address given on an application is a child’s normal place of residence or is considered to be an address of convenience. So, as Mr B applied to LB Richmond for school places for C, it is for that local authority to determine the address to be used for the application. The Council is not at fault in relying on LB Richmond’s decision.
28. In addition, it is clear from the clerk’s notes that the panel did consider the issue of C’s home address. Panel members asked questions on this point but decided there was no clear proof that C resides mostly with his father. This is a decision the panel is entitled to make. In the absence of administrative fault, the Ombudsman cannot question the merits of that decision.

The decision letter

29. The clerk to the appeal panel wrote to Mr B explaining the panel’s decision. The letter explained the panel was satisfied that the school’s published admission arrangements were lawful and had been correctly applied. It was also satisfied that the admission of one more child to Year 7 would prejudice the provision of efficient education and the efficient use of resources at the school.
30. The letter explained the panel had considered Mr B’s reasons for wanting a place at the school but, although they were sympathetic to his circumstances, they did not the feel these were sufficient to outweigh the impact on the school.
31. The Code says the decision letter must give clear reasons for the panel’s decision, including how and why any issues of fact or law were decided by the panel during the hearing.
32. The decision letter does not explain why the panel considered Mr B’s reasons for wanting his son to attend the school did not outweigh the prejudice to the school. The letter lists the information the panel considered but, to Mr B, these are all reasons why he should have been offered a place at the school so the panel’s decision does not make sense. This is why the appeals code requires the panel to give reasons for its decision.
33. The decision letter should have made clear why the panel did not share Mr B’s view and why it did not consider his arguments were strong enough. Failure to do so was fault and caused Mr B uncertainty. However, this does not call into question the panel’s decision, the reasons for which are clearly recorded in the clerk’s contemporaneous notes of the hearing.

Agreed action

34. Clerks are reminded of the importance of clearly communicating the reasons for the panel’s decision to the applicant. The Council has agreed that, within three months of this decision, it will review the training needs of its clerks and panel members in this regard.

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Final decision

35. I have found no evidence of fault in the conduct of the appeal or in the panel’s decision making, so the Ombudsman cannot question the outcome of Mr B’s appeal.
36. I find there was fault in that the decision letter did not clearly explain the reasons for the panel’s decision, but this does not call into question the decision itself.
37. I have completed my investigation because the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman