Summary: Ms X complains about the way the admission Appeal Panel considered her appeal for a Reception place for her daughter. The appeal decision letter is not as clear as it could have been but there is not enough evidence of flaws in the decision-making to recommend a fresh hearing.

The complaint

1. Ms X complains that there was fault in the way the independent admission Appeal Panel considered her appeal for a Reception place for her daughter. She says the Clerk interrupted her during the hearing, the Panel did not consider the evidence properly and there were mistakes in the appeal decision letter.

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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 discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided including the appeal papers and appeal decision letter. I considered relevant law, guidance and policy on school admissions and appeals. I shared my first draft decision with the Council and the complainant and considered their responses. I carried out a telephone interview with the Chair of the Appeal Panel.

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What I found

School admission appeals

5. 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.

6. 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.
7. Admission appeal panels must follow the mandatory sections of the School Admission Appeals Code (‘the Code’). The Code says:
• The panel must send a written decision of the appeal to the appellant, including the reasons for that decision. (paragraph 2.24)
• “The panel must ensure that the decision is easily comprehensible so that the parties can understand the basis on which the decision was made. The decision letter must contain a summary of relevant factors that were raised by the parties and considered by the panel. It must also 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.” (paragraph 2.25)

Council policy on home address for admission applications

8. The Council’s guide for parents on ‘Admission into Primary School’ sets out its policy on how it decides which address to accept for admission purposes. It says:
• As part of the admissions process the Council will check its records to confirm that the address given on the application is the child’s permanent home address.
• The Council will investigate any application where there is doubt about the information given or where it suggests the application is misleading or fraudulent.
• “Your home address must be where you live with your child” unless there are formal legal arrangements for the child to live elsewhere.
• “If you own or rent a property, which is used, or had previously been used, as your home address which is within commutable distance of an oversubscribed school, and you state that you are living at, and apply from, a different address closer to or within the designated area of the school, we will treat the second address as temporary.”
• “To avoid all doubt, this means we will use the address of the property which you own as the permanent address for school admissions purposes, even if that property is not currently available for you to live in.”
• “If the Admissions team does not receive the evidence required to verify your home address the application will be considered under the lowest category on the oversubscription criteria, with no distance priority applied”.

What happened

9. Ms X applied for a Reception place for her daughter, C, at School A for September 2019. She made the application in January 2019 and gave her address on the form as Property 1. The Council carried out a check to verify the address. It found that Ms X was not registered for council tax at that address and that its Early Years Team had registered C as living at a different address, Property 2, in January 2018. The Council wrote to Ms X on 13 March 2019 asking her to provide further evidence confirming her address by 23 March 2019 so that it could process her application. The letter asked for a copy of a legal document showing ownership or a rental agreement for the property and a copy of three of the following:
• current council tax statement showing her name
• utility bill(s) in her name, dated within the last three months
• driving licence
• home or car insurance documents
• welfare benefits documents naming the child.
10. The letter listed other documents which the Council would not accept as evidence, including an entry on the electoral register. It said:

“The evidence provided must be dated before the date you made your application to be considered as valid proof of residency. Documents dated after the date of application will be disregarded.”

11. Ms X telephoned the Council and said she would not be able to provide any of the documents it had asked for because Property 1 was her mother’s home. She explained she owned Property 2 but said she and her daughter had never lived there. She said her marriage had broken down and she had been moving between the marital home, Property 3, and her mother’s home, during 2018. She said she had moved into Property 1 with her mother permanently in September 2018 and had registered C at a nursery from that address. C had started at the nursery then. The Council advised Ms X about other documents she could provide as proof of address. Ms X provided confirmation that she and her daughter were registered with a GP from the Property 1 address since December 2017.
12. The Council wrote to Ms X in April 2019 to say it would be using Property 2 as the home address for considering her application for a school place. It said this was for the following reasons.
• Ms X was the owner of Property 2 which was within commutable distance of School A and another school she had applied for. Both schools were oversubscribed.
• The form she had signed for Early Years funding giving Property 2 as the home address was dated after the date of the application for a school place.
• She was not registered as liable for Council Tax at Property 1 and the system showed only one adult living there.
• Applying its policy it could not ignore Property 2 and would treat it as her home address.
13. The Council’s decision on the application was it could not offer C a place at School A as all places in Reception had been filled with applicants in higher categories, including those living nearer to the School. It offered a place at School B.
14. Ms X made a complaint to the Council. She said she had provided evidence that she and her daughter lived with her mother at Property 1. She explained this was because of her marriage breakdown. She had been moving between her marital home and her mother’s house and had then moved in with her mother.
15. The Council replied to the complaint at the end of April 2019. It referred to the evidence provided previously. It also said it had a letter from C’s nursery confirming she had been attending since September 2018 with Property 1 as her home address. It said the previous nursery disputed the information she had provided about why Property 2 was given on the Early Years funding form. The Council confirmed it was satisfied that the Admissions Team had applied the policy correctly in treating Property 2 as the home address. It advised Ms X she had a right of appeal against the decision refusing a place at School A. It said “the appeal panel will scrutinise how the admission arrangements and co-ordination scheme were applied to [C’s] application, including the assessment of your home address, when making the decision whether to uphold your appeal”.
16. Ms X appealed to the independent Appeal Panel. In her written submission she said she and C had never lived at Property 2 and that she had provided evidence of living at Property 1. She explained how it came about that the Early Years funding form showed the Property 2 address. She said this was due to a mistake by C’s previous nursery and that the nursery had always used the Property 1 address in corresponding with her. Ms X sent in copies of a utility bill, home insurance document and the entry in the electoral register all showing both her and her mother at Property 1, to support her case. The utility bill was for the period October to December 2018. All the other documents were dated after January 2019. Regarding the Council Tax registration she said her mother had been too ill to contact the Council to correct the records.
17. The appeal hearing took place in July 2019. Ms X attended and put her case. The appeal was unsuccessful. The decision letter said the Appeal Panel decided none of the grounds to allow an infant class size prejudice appeal applied. It found that the Council decision to reject the application was reasonable.

Analysis – was there fault causing injustice?

18. The Clerk’s notes of the hearing show the Council representative and Ms X each had an opportunity to explain their case. Ms X explained the history of her relationship breakdown and how she came to be living at Property 1 with her mother. She said she had bought Property 2 with her husband, hoping to restore their relationship and live together there as a family, but it had not worked out and she had never lived there. She said her mother had had problems with her health and her welfare benefits and had forgotten to tell the Council about the change in her Council Tax status through the stress this caused.
19. The appeal decision letter says the Panel took account of the written and oral submissions. It says the Panel found the Council had applied the admission arrangements properly and there was no error made in her case. The admission arrangements include the question of which address is the home address. The decision letter summarises Ms X’s account of the history of her living arrangements. But it does not explain why the Panel decided the Council was right to use the Property 2 address as the child’s home address. The notes of the Panel’s decision-making shows one member said there was no “viable proof of address” that Property 1 was the permanent home. Another said there was a lack of “legal information” showing proof of residency. The Chair of the Panel found the history of ownership of the properties was unclear but said the Council had applied its policy correctly.
20. I have looked at the way the Panel considered the evidence presented. The appeal decision letter refers to the Early Years funding form and the Council Tax records. But there is no evidence in the notes of the Panel’s decision-making or in the decision letter that the Panel considered other evidence Ms X provided giving Property 1 as her home address. This included the utility bill, electoral register entry, contents insurance policy and letter from C’s nursery. There is nothing to show why the Panel rejected this evidence or how it came to the view that it was outweighed by the evidence the Council relied on. Nor is there any evidence that the Panel considered the reasons Ms X put forward about why her mother had not updated the Council Tax information.
21. However most of the documents Ms X presented either post-dated the application for a school place or were documents the Council had already said would not be accepted as proof of residence, such as entry onto the electoral register. The only document the Council would have treated as proof of address was the utility bill as it covered the relevant period. But an infant class appeal is essentially a review of the original admission decision. The Panel has to consider whether the admission decision was flawed based on the information the Council had before it at the time it made its decision. The Appeal Panel would not have been able to take account of evidence submitted after the decision was made.
22. I have also spoken to the Chair of the Appeal Panel about the reasons for the Panel’s decision and how it considered the evidence. The Chair explained that Panel members felt Ms X did not make a convincing enough case that she had never lived at Property 2 or that she could demonstrate more than casual living at Property 1. They felt she was not clear about her evidence in response to their questions. They felt the Council’s case was well researched and persuasive. From what he said, the Panel weighed up Ms X’s case against the Council’s but did not consider she made out a sufficiently credible case to enable it to find in her favour. The Appeal Panel is entitled to come to its own judgment about the evidence it hears. It is not for the Ombudsman to decide what weight the Panel should give to the evidence presented.
23. The decision letter could have been clearer about why the Panel rejected her evidence. But I do not consider this provides sufficient evidence of flaws in the decision-making to recommend holding another hearing.
24. Ms X also complained about the conduct of the appeal and the role of the Clerk. She says the Clerk interrupted her. I have not seen evidence of questions or comments from the Clerk recorded in his notes. The record shows Ms X was able to present a detailed case and the Chair gave her a chance to sum up at the end. So I cannot say, if there were interruptions, that this affected the way the Panel considered the appeal.
25. In responding to my first draft decision on this complaint the Council offered to re-assess Ms X’s home address for admissions purposes from now onwards based on all the information currently available. This may help her with her child’s position on the waiting list and any in-year transfer applications she wants to make.

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Final decision

26. I have found that the appeal decision letter could have been clearer about how and why the Appeal Panel reached its decision. But I do not consider any flaws in the letter are enough to call into question the decision itself. So I am not recommending a fresh hearing and have completed my investigation.

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Investigator's decision on behalf of the Ombudsman