Summary: Miss B complains about an unsuccessful school admission appeal. Miss B says the school admission appeal panel did not consider the evidence she provided or her individual circumstances. The Ombudsman has found fault with no injustice.

The complaint

1. Miss B complains about an unsuccessful school admission appeal. Miss B says the school admission appeal panel did not consider the evidence she provided or her individual circumstances.
2. Miss B says because of this her two children attend different schools and she will have to stop working so they can both be collected on time.

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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)

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How I considered this complaint

4. I considered:
• Miss B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
5. Miss B and the Council had the opportunity to comment on a draft decision

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What I found

Coordinated admissions

6. Statutory guidance about school admissions and appeals can be found in The School Admissions Code and School Admission Appeals Code. Both are published by the Department for Education.
7. Under the system of coordinated admissions, parents make a single application for a school place to their home local authority. This is the local authority the parent pays their council tax to.
8. All schools must have a set of admission arrangements containing oversubscription criteria. The school’s admission authority uses these to decide which children will receive an offer of a place if there are more applications than places available. The school’s admission authority sets the admission arrangements.
9. Oversubscription criteria will often be based on catchment areas. Children whose address falls inside a catchment area will normally be given higher priority for admission to the school than those living outside the catchment area.
10. A school’s admission arrangements must also contain a Published Admission Number. This is the number of places the school will offer at each point of entry. The point of entry is when the school normally admits children. In an infant or primary school this is usually the reception year.

School appeals – Infant class size

11. The School Standards and Framework Act limits the size of infant classes (a class in which most of the children will reach the age of 5, 6 or 7 during the school year) to 30 pupils per teacher. The Appeals Code refers to these as Infant Class Size (ICS) appeals. Panels can only uphold these appeals in limited circumstances.
12. Admission authorities must provide parents with information on the limited circumstances in which an infant class size appeal can be upheld in order that they can make an informed decision about whether to submit an appeal.
13. Where an appeal only involves one child, the panel examines the decision to refuse admission. The Appeals Code says in an ICS appeal the panel must consider:
• whether the admission of an additional child/additional children would breach the infant class size limit;
• whether the admission arrangements complied with the mandatory requirements of the School Admissions Code and Part 3 of the School Standards and Framework Act 1998;
• whether the admission arrangements were correctly and impartially applied in the case in question; and
• whether the decision to refuse admission was one which a reasonable admission authority would have made in the circumstances of the case.
14. What is ‘reasonable’ 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. ICS appeals also apply to situations where admitting a further child would lead to a breach of the infant class size limit in future years. This applied to Miss B’s appeal.
16. The clerk to the panel must write to the appellant, the admission authority and the local authority with its decision and the reasons for it.

School appeals – non-infant class size

17. For appeals where admitting a further child would not breach the infant class size limit, a different process applies. The Appeals Code sets out a two-stage process for considering such appeals. In the first stage the Panel examines the decision to refuse admission and considers whether the admission authority took the decision properly. It also has to decide whether admitting extra children would “prejudice the provision of efficient education or the efficient use of resources” for those already at the school. If the Panel decides that admitting extra children would prejudice the school, then it must proceed to the second stage of the appeal. In this stage the Panel must balance the prejudice to the school against the appellant’s case for their child to be admitted. It must decide whether the appellant’s case outweighs the prejudice. The threshold for a non-infant class size to succeed is much lower than in an infant class size appeal.
18. Following an appeal, the clerk to the panel must write to the appellant, the admission authority and the local authority with its decision and the reasons for it.

What happened

19. This chronology includes key events in this case and does not cover everything that happened.
20. Miss B has two children, C and D. C attends School E. School E is in a different Council area to where they live. D must start school by January 2020.
21. Miss B made a late application for D to attend School E in May 2019. The closing date for applications was February and the national offer day was in April 2019. The Published Admission Number for School E was 15 and these places were allocated during the normal admissions round.
22. In June 2019 Miss B’s home Council told her D had not been given a place at School E and it had places available at School F. School F was the closest school with places available.
23. Miss B appealed the decision not to offer D a place at School E. In her written appeal she put forward the following:
• Miss B cannot take D to school due to her working hours. Miss B said she would have to consider giving up her job if the appeal was not successful.
• C is taken to school by Miss B’s stepfather and he cannot be in two places at once.
• Miss B does not have a vehicle.
• If her home Council gave D a place at School F, it would be unfair to move C to that school.
• D attends the nursery located at School E.
• Miss B could not afford to pay for childcare for D.
24. The Council gave Miss B notice of her appeal in July 2019. The letter advised her to read the information about infant class size legislation. The Council explained all places at School E were allocated as part of the normal admission round. It said if the School was to admit D, the School would have to take action in future years to ensure the statutory limit on infant class sizes was not exceeded, such as employing an additional teacher. The Council told Miss B she could attend the hearing.
25. At the appeal the panel found admitting D to School E would breach the infant class size limit unless action was taken by the School.
26. The panel then considered Miss B’s case. Miss B explained why D’s application was late and the reason for her appeal. The clerk to the panel wrote to Miss B in August 2019 to say her appeal had not been successful. The Council put D on the waiting list for School E.

Analysis

27. As explained in paragraphs 14 and 17 two different tests are applied to school admission appeals. The test applied depends on whether the appeal is an infant class size appeal – as was Miss B’s. The panel needed to decide if the admission arrangements had been properly applied, and if admitting another child would breach the infant class size limit. The key test was then if the decision to refuse admission was unreasonable – as I say in paragraph 14 this is a high test and few such appeals succeed.
28. But the clerk’s notes from the appeal, and the clerk’s letter, show the panel applied the wrong test when it considered Miss B’s appeal. The clerks notes state:

“[Admissions Authority] did comply with admission arrangements and requirements of the Code and filled [School E] in accordance with the law and further pupils would prejudice the efficient use of resources and existing pupils.”

29. The panel therefore applied the two-stage prejudice test which is set out in paragraph 17. The panel decided admitting further children would cause prejudice to the school. It looked at Miss B’s case and balanced it against the prejudice to the school admitting a further child would cause. The panel’s application of the wrong test is fault.
30. But while the panel applied the wrong test to Miss B’s appeal, I find this did not cause any injustice. This is because the test the panel applied is much lower than the one it should have used in an infant class size appeal. It therefore follows that if the panel had applied the correct, much higher test, that her appeal would also have been unsuccessful. The fault identified will not therefore have altered the outcome of the appeal and so there is no injustice to Miss B.

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Final decision

31. I have completed my investigation and uphold Miss B’s complaint. However, Miss B was not caused an injustice by the actions of the Council.

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Investigator's decision on behalf of the Ombudsman