Summary: Mrs T complains about the independent appeal panel’s decision not to admit her child to her preferred primary school. The Council was at fault in that the clerk did not properly record the panel’s deliberations or the reasons for its decision. The Council was also at fault in that the decision letter did not properly explain the reasons for the panel’s decision. The Council has agreed to offer Mrs T a fresh appeal with a different panel and clerk.

The complaint

1. Mrs T complains that the independent appeal panel failed to properly consider her appeal against the refusal of a place for her daughter at her preferred primary 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:
• Mrs T’s comments;
• all the information presented to the appeal panel, the clerk’s notes of the appeal hearing and the panel’s decision letter following the appeal; and
• the current School Admission Appeals Code.
5. I have written to Mrs T and the Council with my draft decision and considered their comments.

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What I found

Legal and administrative background

6. The School Admission Appeals Code issued by the Department for Education sets out the process the independent appeal panel must follow when considering an appeal. Special rules apply to admissions to infant classes (Reception and Years 1 and 2). Appeals under these rules are known as “infant class size appeals”.
7. 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. 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; and
• the decision to refuse a place was one which a reasonable authority would have made in the circumstances.

8. The Ombudsman’s role is to check that the appeals were carried out properly. We do not decide whether the child should be given a place at the school. We do not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.

The application

9. Mrs T made an on-time application for a place in Reception for her daughter, B. She put School X, where her daughter currently attends the on-site nursery, as her first preference. The Council received 63 preferences for the school and allocated 30 places in accordance with the oversubscription criteria. The Council used a tiebreaker in terms of children living closest to the school. The cut off distance was 386 metres. Mrs T lives further away from the school than this so she was not offered a place. She appealed.

The appeal

10. The appeal panel consisted of one lay member and two members with experience in education. So, the panel was properly constituted.
11. The appeal paperwork clearly explains why the Council refused Mrs T a place at School X, why the Council believes the school cannot admit more pupils and why Mrs T wants a place at the school.
12. At the hearing the panel first heard the case for not admitting more pupils. The law says that an infant class with one teacher should not normally have more than 30 pupils. School X normally has one class of 30 pupils for each year group and the Council had allocated places to this limit in the Reception class. The panel was satisfied that to admit an extra pupil now would take the class size to over 30 pupils.
13. When a panel decides an appeal is an ‘infant class size’ appeal, it can only uphold the appeal for one of two reasons: first, if the panel considers there was a mistake in the admissions process; and second, if the panel considers the decision to refuse to admit the child was one which a reasonable authority would not have made in the circumstances.
14. Case law has established that 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.
15. The panel listened to the points made by Mrs T. The clerk’s notes set out her case that B is an anxious child and took a year to settle properly at the nursery, which is part of the primary school. B is familiar with the school grounds and building and has also had dealings with the Reception teacher and teaching assistants which would help her transition when she starts school. Mrs T was concerned that moving B to another school would set her back.
16. The School Admissions Appeals Code states, “The clerk must ensure an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting and reasons for decisions”.
17. The clerk’s notes do not comply with the Code. They do not record the panel’s deliberations or the reasons for its decision. They simply list the information the panel considered. The decision record should have made it clear why the panel reached the decision it did. Failure to provide an accurate record of the panel’s deliberations and decision-making is fault and calls into question the panel’s decision.

The decision letter

18. The Code says the decision letter must give clear reasons for the panel’s decision, including how and why issues of fact or law were decided by the panel during the hearing.
19. The decision letter lists the information the panel took into account and states that it was satisfied the admission authority had complied with its statutory duty to abide by the class size limit, that the admissions procedure was lawful and had been properly implemented and that the decision to refuse Mrs T’s application was one that a reasonable admission authority would make in the circumstances.
20. However, the letter does not explain why the panel reached its decision. Failure to do so is fault and causes Mrs T uncertainty. The decision letter does not allow her to understand the reasons behind the panel’s decision. To Mrs T, her arguments are all reasons why she should have been offered a place at School X, so the panel’s decision does not make sense. This is why the appeals code requires the panel to give reasons for its decision. The decision letter should be clear about why the decision to refuse a place was not perverse and should address the appellant’s arguments.

Agreed action

21. The Council has agreed that, within one month of this decision, it will offer Mrs T a fresh appeal for her daughter for School X with a different panel and a new clerk.
22. Clerks and panel members are reminded of the importance of accurately recording the panel’s deliberations and the reasons for its decision and clearly communicating these to the appellant. 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

23. There was fault in the appeal leading to injustice.
24. 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