Summary: Mr and Mrs B complain that the Council did not properly deal with a school admissions appeal. The Council was not at fault.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs B, complains the Council did not properly deal with a school admissions appeal because:
• the panel had not received appropriate training.
• the presenting officer had contact with the appeal panel without him present.
• the presenting officer was allowed to exert undue influence on the panel.
• the appeal panel was not impartial in relation to his religious beliefs.
• the decision letter does not explain how the panel decided issues of law.
• it did not inform him how he could complain about the appeals process.

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What I have investigated

2. I have investigated that part of Mr and Mrs B’s complaint in relation to contact with the appeal panel. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

6. I have spoken to Mr B about his complaint and considered the information he has provided to the Ombudsman. I have also considered the Council’s response to his complaint and its response to my enquiries.
7. I gave the Council and Mr and Mrs B the opportunity to comment on my draft decision.

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What I found

8. Mr and Mrs B have two children. Their eldest daughter – G – currently attends a primary school, to which I will refer as School 1.
9. Mr and Mrs B’s younger son – P – was due to start primary school in the academic year 2019/20. Mr and Mrs B lived outside the catchment area for School 1 and submitted a late application. Mr and Mrs B named School 1 as their first preference.
10. School 1 received more applications than its Published Admissions Number (PAN) of 60 (two classes of 30 pupils). The Council, as admissions authority, applied its over-subscription criteria. Under the criteria, all on-time applications are ranked first, before late applications, which are treated as in year applications.
11. Mr and Mrs B’s application was not ranked highly enough to be offered a place at School 1. P was offered a place at a different primary school, School 2.
12. Mr and Mrs B appealed the decision. They explained they wanted both their children to attend School 1. At the appeal hearing, they raised issues about P’s medical circumstances, the catchment area of School 1 and expressed concerns about the religious nature of School 2 and the difficulties of having two children attending separate schools.
13. The appeal panel did not uphold the appeal. In its decision letter, it explained it considered evidence about the PAN, the provision of efficient education and efficient use of resources and the law regarding infant class sizes. The decision letter said the admission of an additional pupil would breach the legal infant class size limit of 30. The panel considered grounds of appeal did not fall into any of the relevant categories relating to appeals concerning infant class size.

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Legislative background

14. 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. These are called excepted pupils.
15. 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.
16. 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 in light of the admission arrangements.
17. We cannot question the decision if it has been properly taken. If the panel has been properly informed, and used the correct procedure, then it is entitled to come to its own judgment about the evidence it hears.

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Analysis

18. The Ombudsman is not an appeal body. In cases such as this, our role is to determine whether the appeal panel followed the correct procedure in making its decision. If we find it has, then we are unable to criticise it.
19. In infant class size appeals, the panel has very limited grounds to uphold an appeal. The law says an infant class must not have more than 30 pupils. If this number has been reached – as it had the case of School 1 – the panel can only uphold the appeal if it considers the admissions criteria did not comply with the law; that the criteria were not applied properly; or that the decision to refuse was one no reasonable authority would make.
20. The Council says, “at no time during the appeal hearing or at any time during the morning of the appeal was the presenting officer in the room with the panel without the clerk and the complainant being present, nor was the presenting officer able to speak to any of the panel before or after the appeal in relation to this appeal. The presenting officer and the complainants both entered the appeals room at the same time and left at the same time. The next contact the presenting officer had with the clerk, was via the telephone to let him know whether the appeal was upheld or dismissed.”
21. Mr B says the presenting officer met them at the waiting area and introduced them to the clerk. The Council say the clerk met Mr and Mrs B and introduced them to the presenting officer. Clearly both cannot be correct. The clerk’s notes do not show any record of who entered or left the hearing, or at what times.
22. The clerk’s notes from the appeal hearing start with a welcome at the beginning of the appeal. They end with a record of summing up by both parties. There is no record of any break being taken. The clerk’s notes do not indicate there was any contact with the presenting officer outside the appeal hearing. On the balance of probabilities, there was no undue contact outside the appeal hearing. This is not fault by the Council.
23. There is no suggestion the admissions criteria did not comply with the law, nor that the criteria were not properly applied.
24. The clerk’s notes show that the appeal panel considered the representations made by Mr and Mrs B in person at the appeal hearing.
25. I cannot find fault in the appeal panel’s consideration. Refusing the appeal was a decision it was entitled to take under the circumstances, and I have no grounds to uphold a complaint about it.

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Final decision

26. I have not found fault by the Council in how it dealt with a school admissions appeal. I have now completed my investigation.

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Parts of the complaint that I did not investigate

27. I have not investigated Mr and Mrs B’s complaint concerning training, undue influence, religious beliefs or issues of law because it is unlikely that we would find fault.
28. I have not investigated Mr and Mrs B’s complaint about the appeals process because any fault would not have caused significant injustice.

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Investigator's decision on behalf of the Ombudsman