Summary: Ms X complains about an unsuccessful school admissions appeal. The Ombudsman has found fault with the way this appeal was conducted. To remedy the injustice caused, the Council has agreed with the Ombudsman’s recommendation to offer Ms X a fresh appeal.

The complaint

1. Ms X complained about several procedural irregularities in the way the Independent Appeals Panel (“the Panel”) considered her appeal for a place for her daughter at her preferred school. In particular, she says the Panel:
• Did not hear it in accordance with the Infant Class Size rules.
• Did not consider properly her argument that the Council should therefore have offered a place a school within a reasonable distance as an excepted pupil via the Fair Access Protocol (FAP) because it was an “in-year application”.
• Did not properly consider her case that the school offered was too far and D’s individual circumstances.
2. Ms X says the decision to refuse her appeal has caused her significant distress and concern for D’s future education and general well-being.

Back to top

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 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)
4. We cannot question whether a school admission appeal 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. (Local Government Act 1974, section 34(3))
5. 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

6. I discussed the complaint with Ms X and considered the written information she provided. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint. This was sent to both parties to comment upon before I reached my final decision.

Back to top

What I found

Relevant law and guidance

School admissions and appeals

7. 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.
8. All schools must have admissions arrangements that clearly set out how they will admit children, including the criteria they will apply if there are more applications than places (oversubscription criteria).
9. Under the system of coordinated admissions, parents make a single application for a school place to their home local authority.
10. The normal admissions round for primary school places is in January. Parents apply for admission in the same calendar year. Applications received by the closing date are considered as “on-time”. Those received after the closing date are treated as late and usually considered after on-time applications.
11. Parents receive an offer of a place from the council at their highest preference school at which a place is available. For primary schools, National Offer Day is on or about 16 April.
12. Parents can apply for school places for their children outside the normal admissions round, referred to as “in-year” applications. Councils must provide information in their composite prospectus about how parents can make in-year applications, and how they will deal with them.
13. Every local authority must have a Fair Access Protocol to ensure that – outside the normal admissions round – unplaced children, especially the most vulnerable, are offered a place at a suitable school as quickly as possible. All admission authorities must engage in the Fair Access Protocol.
14. Any parent who has their application for a school place refused has the right to appeal the decision via an independent appeal panel (‘the Panel’). A clerk supports the Panel (“the Clerk”).
15. Parents can send information in support of their appeal and the Clerk circulates it before the hearing, along with information from the admission authority. Parents can attend the hearing to present their case. A representative from the admission authority will normally attend the hearing.
16. Parents and the Panel can ask the admission authority’s representative questions. The Panel will normally ask the parents questions.
17. Following an appeal, the Clerk writes to the parents with the Panel’s decision. The Appeals Code sets out what information this letter should include to ensure the parent understands how and why the decision was made.

Infant class size appeals

18. The law says the size of an infant class (Reception, Years 1 and 2) must not be more than 30 pupils per teacher. There are only limited circumstances in which more than 30 children can be admitted. One of these circumstances is where a child moves into the council area outside the normal admissions round for whom there is no other available school within a reasonable distance. Such children are referred to as “excepted pupils”.
19. There are special rules governing appeals for infant classes. These appeals are known as “infant class size appeals” (“ICS appeals”) and say that 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.

20. 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.
21. Appeal panels considering infant class size appeals must consider whether a child is an “excepted pupil”.

Non-infant class size appeals

22. For appeals that are not subject to infant class size legislation the panel must consider whether:

• the admission arrangements comply with the law;
• the admission arrangements were properly applied to the case; and
• then consider whether admitting another child would prejudice the education of others.

23. If the panel finds there would be prejudice the panel must then consider each appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
24. The threshold for a non-infant class size to succeed is much lower than in an infant class size appeal.

The Council’s Admissions Arrangements

Late applications

25. Any changes to applications made after February, including a change of address or school preferences, would be treated as late. This includes applicants moving into the Council’s area from another local authority.
26. All late applications would be considered against oversubscription criteria.

The Council’s oversubscription criteria

27. If there were more applications than there were places available, priority would be given to applicants in the following order: children in care; children of school staff; children with siblings at the school; and distance (with the closest being given greatest priority using a Geographic Information System (“GIS”) of measurement.

Fair Access Protocol

28. The Council’s Fair Access Protocol considers cases, where there is no school place available at a suitable school within a reasonable travelling distance from the child’s home. If there is no such place, a place would be offered above a school’s agreed admission number of places.
29. In this context, guidance is provided about what “reasonable travelling distance” means:

• Band 1 – up to 1.5 miles by walking
• Band 2 – Between 1.5 and 3 miles by 1 or 2 bus/tube/rail journeys
• Band 3 – Between 3 and 5 miles by 1 bus/tube/rail journey
• Band 4 – over 5 miles is not considered reasonable unless through parental choice.

What happened

30. Ms X lived in a different London Borough (Borough Z). She applied, during the normal admissions round to Borough Z for a reception class place for her daughter, D in September 2019. D was offered a place at a school in Borough Z on National Offer Day.
31. In May 2019, in anticipation of an imminent house move into the Council’s area, Ms X amended the application to include a school that was local to her new address. In June 2019, this amendment was forwarded by Borough Z to the Council’s admissions team.
32. Ms X moved to her new home in the Council’s area in July 2019. Ms X notified the Council and provided proof of residency. Ms X added another local school to her application.
33. The Council treated her revised application to both schools as late. Both Ms X’s preferred schools were already full. Instead, she was offered a place at School A, which was 2.2 miles from her home, using the Council’s GIS measuring tool.
34. Ms X timed how long this journey would take. It took her approximately an hour by foot and public transport. She says this was supported by the Transport for London journey planner. Ms X considered this to be an unreasonable journey time for such a young child, particularly as D had health issues.
35. Ms X appealed to her two preferred schools against the decision to refuse to admit D.
36. The appeals were heard by the same Panel and were both refused. The case for both schools was the same, and the Panel refused them for the same reasons. I have therefore issued the same draft decision about both appeals.

The appeal hearings

37. Both schools informed the Panel they were full with on-time applications and provided details about how classes were organised. Both schools said they were unable to admit further pupils and to do so would prejudice the provision of efficient education and efficient use of resources.
38. Ms X was given the opportunity to explain her reasons for her appeal. I have summarised her main points below:
1. D was an “excepted pupil” because she had applied outside the normal admissions round and there were no other schools within a reasonable distance, including the one she had been offered.
2. The journey time School A was over 45 minutes, which was not reasonable, particularly as D was a small child and a slow walker. This contravened government guidance.
3. D had respiratory issues.
4. D had anxiety and separation issues.
5. The proposed route was overly polluted and unsafe.
6. The closer proximity of her chosen school would benefit D in many areas of her life.
39. The Panel considered the evidence they had heard from both the school and Ms X and decided to reject Ms X’s appeals.

The decision letter

40. The Clerk wrote to Ms X after the appeal hearing to explain the reasons why her appeal was unsuccessful.
41. The letter said, “that if a child was admitted to a year group that was full in all schools across the Borough, a child may be admitted as a permitted exception to the ICS Regulations. This appeal was therefore heard under the ‘Two Stage’ appeal process”. The letter then goes to describe what the Panel considered:

• Whether the school’s published admission arrangements were correctly and impartially applied.
• Whether they complied with the law.

42. The Panel agreed they were.
43. But the panel then went on to consider whether the offer of a place to D would prejudice the provision of efficient education and the efficient use of resources in the school. Again, it decided it did.
44. The letter then said the Panel moved onto the second part of the two-stage process to determine whether D’s individual circumstances outweighed the prejudice to the school.
45. The letter set out in detail the information Ms X had put forward in support of her appeal.
46. The Panel concluded that whilst noting concerns for D’s wellbeing, they did not consider they outweighed prejudice caused to the school. Her appeals for both schools were therefore unsuccessful.
47. Disappointed by this decision, Ms X brought her complaint to the Ombudsman, who made enquiries of the Council about its decision making process.
48. In response the Council made the following points:
1. The Admissions Appeal Code used a two-stage process to decide ICS appeal. In doing so, “the Panel was undertaking a balancing exercise, weighing up both the parent’s and Local Authority’s case to undertake the first stage process of the appeal”.
2. D did not qualify for admission as an excepted pupil because she did not qualify under the Admissions Code.
3. The Fair Access Protocol did not have any bearing on normal round allocations.
4. Home to school distances are measures by a GIS, using approved safe walking routes.
5. Walking times were only relevant if the FAP applied which it did not in this case.

Analysis

49. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.
50. In reaching my decision, I have looked carefully at the documents provided, particularly the Clerk’s notes of the hearing and decision making, and the refusal letter sent to Ms X.
51. I have considered each of Ms X’s grounds for complaint below:

The Panel applied the incorrect legal test

52. Ms X applied for a place for her daughter D in the reception year so her appeal should have been considered under the ICS arrangements. The Council says this is what it happened.
53. I am satisfied that the Panel considered some of the grounds that it was required to when looking at an ICS appeal, including whether the admission arrangements complied with the law and whether the admission arrangements were properly applied to the case.
54. However, there is no evidence that the Panel considered whether the “decision to refuse a place was one which a reasonable authority would have made in the circumstances” as it was required to under the ICS legislation.
55. This was essentially one the grounds on which Ms X submitted her appeal as it was based on her D’s personal circumstances (including health issues and ability to cope with such a long journey). Instead the Panel seems to have applied the test of balancing the strength of Ms X’s case with the case put by the school as it would be required to in a normal prejudice appeal.
56. This incorrect approach was later supported by the Council’s response my enquiries about how the Panel reached its decision. The Council said,

“The Panel in this case reviewed both the parents and Local Authority’s case considering sections 4.4(a)-(d). In doing so, the Panel was undertaking a balancing exercise, weighing up both the parent’s and the Local Authority’s case to undertake the first stage process of the appeal”.

57. Further evidence that the incorrect test was applied is contained in the Clerk’s decision letter. This referred to “a child being admitted to a year group that was full in all schools, they could be admitted as a permitted exception to the ICS rules and so the appeal was heard under “the two stage process””. While the Appeals Code refers to two stages in both ICS and normal appeals, I am satisfied from the rest of the letter, and its reference to carrying out a balancing exercise, that the Panel applied the normal, often referred as “normal prejudice” test.
58. I am satisfied, the Panel misdirected itself. It could only give an ICS place on the basis of one of the tests set out in paragraph 10 above, and cannot choose to use any other test such as normal prejudice.
59. So, whilst the Council says it considered the case as an ICS case the evidence does not confirm this is what actually what happened. This amounts to fault.
60. I do not know whether the Panel would have reached a different decision if it had considered the grounds of Ms X’s case under the “reasonableness” test as they should have done. But because the Panel only partially considered the appeal as it should have done, I consider the fault has caused injustice as it has denied Ms X the opportunity to have her appeal heard properly under the correct process and the outcome may have been different had it done so.

The Panel failed to apply the Fair Access Protocol

61. Ms X says she made her application outside the normal admissions round and so the Fair Access Protocol was applicable. The Council says it was a late application.
62. I have considered the relevant legislation and decided it was it was a late application. The School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012, clarify the issue.
63. The Regulations state an application is late if it is submitted before the first day of the September term, as was the case here. It would have been an in-year application if it was made after the start of term.
64. Because the application was made prior to the start of the September term this was a late application.
65. I am therefore satisfied there was no obligation on the Panel to consider Ms X’s submissions about D being treated as an “excepted pupil” under the Fair Access Protocol. It simply did not apply here. But it is unfortunate that this was not explained to Ms X sooner.

The Panel failed to properly consider the excessive travel time and personal circumstances

66. Ms X further complained that the Panel did not properly consider her view that School A was too far and the journey time excessive. She said the Panel did not take into account the relevant factors: that the distance was too far for her daughter to walk; that walking it would be detrimental to her daughter because of the effects of the traffic pollution with her history of breathing problems; and that the journey by public transport took her 57 minutes, whereas the recommended maximum for a child under 8 years of age is 45 minutes. She referred the Panel to the government’s own “Home to School Transport Guidance” in support of this.
67. She therefore argued that the Council should use its Fair Access Protocol to allocate her daughter one of the schools now appealed for.
68. I have already explained above why the FAP did not apply.
69. But both D’s personal circumstances and the journey time should have been considered in the context the final limb of the four strand ICS test. Instead they were considered in the context of “normal prejudice”.
70. As explained above (paragraph 20) this is an easier test and one that the panel felt had not been satisfied. If the matter had been properly considered under the normal prejudice test, and rejected, it is highly improbable that the case would satisfy the much higher ICS rules.
71. To reach a decision on this, and to inform my view on potential injustice, I must decide whether the Panel did properly consider these matters.
72. I am satisfied by reading both the Clerk’s notes and decision letter that the Panel was aware of the many issues raised by Ms D during the hearing. What I not clear about is how the Panel reached its decision to reject the appeal.
73. The Clerk’s notes from the decision making about D’s exceptional circumstances are very brief, “Pollution, child born prematurely, health effects, can walk to school, 45 minute thing is only guidance”.
74. The Clerk’s contemporaneous notes from a hearing will not necessarily show everything which happened. But paragraph 2.26 of the 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.” The notes should therefore reflect the key points and allow parents and third parties to understand how decisions were reached.
75. I do not consider the Clerk’s notes to meet the requirements of paragraph 2.26 of the Appeals Code. There is no evidence the Panel considered what Ms X told them. For example, there is no record of consideration having been given to D’s health issues. The record “health effects” does not satisfy the requirements of the Appeals Code. Similarly, Ms X had provided the Panel with detailed information about the journey to School A, both in terms of excessive time and impact of D’s health and well-being. The Clerk just recorded that D “can walk to school”. Without proper notes, it is not possible to say the Panel properly considered what Ms X told the Panel. Just saying “LA proved its case” and “Pollution, child born prematurely, health effects, can walk to school, 45 minute thing is only guidance” is inadequate and is fault.
76. The potential injustice arising from this fault could be mitigated if some reasoning was provided in the decision letter.
77. Paragraph 2.25 of the Appeals Code says the Clerk’s decision letter must contain a summary of relevant factors raised by the parties and considered by the Panel. It must also give clear reasons for the Panel’s decision, including how, and why, any issues of fact or law were decided by the Panel during the hearing.
78. The decision letter said the prejudice test had not been met because D had been offered a school which was within a reasonable distance and there were no exceptional circumstances to breach ICS rules. The letter then explains “the panel did not consider there were circumstances of sufficient weight advanced to warrant overturning the decision”.
79. I do not consider the Clerk’s letter meets the requirements of paragraph 2.25 of the Appeals Code. Ms X presented numerous, detailed reasons why she felt the journey time (as opposed to just distance) was unreasonable, particularly in the context of her daughter’s individual circumstances. I would expect to see some evidence that the Panel properly considered these issues. There was none.
80. This lack of explanation, taken together with the application of the wrong test, leads me to make a further finding of fault here.
81. I am satisfied this casts further doubt on whether the Panel properly considered her case. The fault means Ms X cannot be clear about how the Panel reached its decision. This uncertainty represents further injustice.

Conclusion

82. I have concluded, on the balance of probabilities, that the appeal process followed by Council was sufficiently defective as to remove Ms X’s right to a fair hearing of her case, notwithstanding the limited scope for a successful appeal for a place in a reception class. The application of the wrong legal test, the failure to record relevant considerations and provide a proper analysis of her case have created sufficient uncertainty about the Panel’s decision-making to cause Ms X a personal injustice that should be remedied.
83. Ms X is aware of the very limited scope for a successful appeal, but she should be given the opportunity to present her case again and to have it considered properly.

Back to top

Agreed action

84. To remedy the injustice caused by the identified faults, the Council has agreed to arrange a fresh appeal (for each school) for Ms X without delay. This should be with a different panel.
85. The Council has also agreed with my recommendation that this decision statement be made available to the Panel and the Clerk that dealt with Ms X’s appeals to help ensure the faults identified are not repeated. This should be done within four weeks from the date of this final decision
86. In response to my draft decision the Council has indicated that appeal hearings do not take place in August. The appeal should take place at the first available opportunity in September but no later than 11 September 2020.

Back to top

Final decision

87. Ms X’s appeal for a school place were affected by fault. There is enough uncertainty about whether the Panel properly considered her appeal to represent injustice. The Council has agreed to offer Ms X a fresh appeal to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman