Summary: The Ombudsman will not investigate Miss X’s complaint about an unsuccessful appeal for a school place. This is because there is not enough evidence of fault and so we cannot question the merits of the panel’s decision.

The complaint

1. Miss X complains about an unsuccessful school admission appeal for her daughter.

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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)

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How I considered this complaint

3. I considered Miss X’s complaint to the Ombudsman and the information she provided. I also gave Miss X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

4. Miss X applied for a place in reception for her daughter (Y) starting in September 2019. The Council was not able to offer Y a place at any of Miss X’s preferred schools. The Council, in line with its published scheme, offered Y a place at the next nearest school with spaces. Miss X appealed the decision not to offer her daughter a place at her preferred school.
5. Independent school admission 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, where admitting another child would mean there would be more than 30 pupils per teacher. 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 the decision to refuse a place was “perverse” or “outrageous”. For that reason, panels rarely find an admission authority’s decision to be unreasonable.
7. Infant class size 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 X’s appeal. The school admits 45 children into reception – taught across two classes. But in the following year the school mixes children from different year groups, meaning two classes of 30 children. Miss X’s appeal was therefore governed by infant class size legislation.
8. The Ombudsman is not an appeal body and we cannot question decisions taken without fault. Appeal panels must consider the information they are presented with – but it is for the panel to decide what weight it will give to the evidence it hears.
9. The clerk’s notes from the hearing show the Council’s representative explained the admissions process and why it had not offered Miss X’s daughter a place. Miss X attended the appeal and presented her case – including details of her family situation. There was an opportunity for Miss X and the panel to ask questions.
10. The clerk’s notes show the panel considered the points set out in paragraph 5. It decided that admitting further children would lead to a future breach of infant class size legislation. It decided none of the grounds for allowing an infant class size appeal had been met. This is a decision the panel was entitled to reach. The clerk’s letter to Miss X explained the panel’s decision. The letter matches the clerk's notes.
11. I understand Miss X is unhappy her appeal was unsuccessful. But each panel needs to reach a decision based on the information before it. There is no evidence of fault in how the panel decided Miss X’s appeal. Without evidence of fault, the Ombudsman cannot criticise the decision the panel made, or intervene to substitute an alternative view. An investigation is not therefore appropriate.

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Final decision

12. The Ombudsman will not investigate Miss X’s complaint. This is because there is not enough evidence of fault and so we cannot question the merits of the panel’s decision.

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Investigator's decision on behalf of the Ombudsman