Summary: Miss X complains about the process the Council followed in arranging a school admissions appeal panel. Based on the evidence currently available, the Ombudsman has found fault in how the Council recorded the events of the appeal panel hearing and in its late decision to award Miss X’s daughter medical priority. Only the latter fault caused injustice, in the form of uncertainty, and the Council has agreed to arrange a new appeal panel hearing to resolve this.

The complaint

1. Miss X complains about the process the Council followed in arranging a school admissions appeal panel. She says the decision not to uphold the appeal did not consider all the evidence and has caused her and her daughter significant anxiety and distress.

Back to top

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 must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

Back to top

How I considered this complaint

4. We spoke with Miss X and considered the information she provided to the Ombudsman. We wrote to the Council to make enquiries and reviewed the documents it sent in response.
5. We have taken into account the School Admissions Appeal Code (‘the Code’). This is a document written by the government which sets out statutory guidance councils are expected to follow in carrying out appeals about school admissions decisions.
6. We have shared my draft decision with Miss X and the Council and invited comment. The Council accepted our findings and Miss X did not comment.

Back to top

What I found

7. Miss X applied for a primary school place for her daughter in the reception year in 2019. Parents can make up to three choices, but Miss X only expressed a preference for School A. She says this is because her daughter had attended nursery there and she felt it could accommodate her needs.
8. When the Council considered applications for School A it could not allocate a place to Miss X’s daughter. It said Miss X’s home address was more than a mile from School A and it gave the last place on the distance criteria to a child living less than a mile away.
9. The Council offered Miss X’s daughter a place at another primary school. As Miss X had only named School A, the alternative school was the Council’s choice based on available places. Miss X then spoke with the Council’s admissions department and it allowed her to put forward more preferences. From these, it allocated a place for her daughter at School B.
10. Miss X decided to appeal the Council’s decision to refuse her daughter a place at School A. She filled out the appeal form and sent supporting evidence. The Council acknowledged Miss X’s appeal and arranged for an independent appeal panel to hear her case.
11. Independent appeal 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.

12. What is ‘unreasonable’ is a high test. The panel needs to be sure that the decision to refuse a place was “perverse” or “outrageous”. For that reason, panels rarely find an admission authority’s decision to be unreasonable. The Ombudsman does not question the merits of decisions properly taken. The panel can come to its own judgment about the evidence it hears.
13. The appeal panel upheld the Council’s decision. Notes from the meeting show Miss X was able to present her case. However, the Council told the Ombudsman Miss X did not give it ‘prior notification’ of her plan to appeal on medical grounds. As such, it could not consider what she said before the meeting and so could not take it into account when she made her original application.
14. After the appeal was over, the Council says it considered the medical evidence presented by Miss X. A senior officer in the Children’s Services department reviewed the case and decided to award Miss X’s daughter medical priority. This put her first on the waiting list for School A but did not give her a place.
15. Miss X says School A has since admitted some pupils with special educational needs to the reception year group. She argues that while her daughter is first on the waiting list, in practice several pupils would need to leave School A before her daughter would get in.
16. Since the Ombudsman became involved, the Council has said it will offer Miss X a new appeal hearing. It accepts it should have done this at the point it awarded her daughter medical priority.

Back to top

Analysis

17. The decision whether Miss X’s daughter should have a place in School A is not a decision for the Ombudsman. However, we expect the Council to follow the proper process when considering an application, and when any decision is appealed.
18. We have read the notes taken by the clerk to the appeal panel and the accompanying minutes of the meeting. While these provide useful insight into what happened, they do not cover all the points required by the Code. Specifically, the Code says appeals panels must answer certain questions in cases like this. While it is likely it did consider those questions, we cannot be sure without proof. Similarly, while the notes and minutes show a vote took place, there is no record of the voting itself.
19. While it is fault for the Council to have not followed these parts of the Code strictly, it did not cause Miss X any significant injustice as a result. It is a procedural oversight. Many local authorities use a ‘proforma’ to make sure they record the right information and we recommend the Council does the same for appeal panel hearings in future.
20. I also find the Council’s failure to consider whether to offer Miss X a new appeal panel once it accepted her medical evidence to be fault too. However, since the Ombudsman’s investigation began, the Council has now volunteered to arrange a new appeal panel for Miss X. That is the right decision and would remedy any frustration caused to Miss X by the original fault. However, the new panel should be made up of different members to those who heard the previous case to make sure it is completely fair.
21. To put Miss X in the position she would have been in, the new appeal panel will have to consider the situation in the school as it was on the date the fault occurred, not the date of the new hearing. This is because other pupils have been admitted and left in the meantime and could affect Miss X’s chances of success given how strict the rules are on infant class sizes.
22. Miss X submitted her medical evidence several weeks before the appeal panel happened. The Council could have considered whether to award her daughter medical priority beforehand. It had the evidence from Miss X and the time to do so. Therefore, we conclude the new appeal panel should consider the facts as they were on the date of the original appeal panel hearing.

Agreed action

23. Within two weeks of my final decision, the Council has agreed to write to Miss X offering a new appeal panel hearing on the basis set out above. It should arrange for it to take place as soon as possible if she accepts the offer.
24. Within two months of our final decision, the Council will draft and agree a proforma document for its note-takers to use in school admissions appeal hearings. This should aim to make sure all the questions outlined in the Code are addressed, as well as recording any votes that take place.

Back to top

Final decision

25. There was fault on the Council’s part in this case and it caused an injustice to Miss X through uncertainty. This should be remedied by holding a new appeal panel hearing as soon as possible.

Back to top

Investigator's decision on behalf of the Ombudsman