Summary: Miss B complains that the Council failed to give her proper advice when applying for a school place for her daughter and then wrongly treated the application as late. She also complains that the independent appeals panel was wrong to refuse her appeal against the refusal of a school place. The Ombudsman has found no fault by the Council or the panel so we cannot question the decision to refuse a place.

The complaint

1. Miss B complains that the Council failed to give her proper advice when she applied for a Reception place for her daughter, D, at her preferred primary school. She considers that, had it done so, D’s application would have been treated as “on time” and she would have been offered a place at the same school as her elder brother, C.
2. She complains that the Council then wrongly considered D’s application as a “late application”, and the independent appeals panel wrongly refused her appeal for a place for D.

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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 a 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 have considered Miss B’s written complaint and spoken with her. I have written to the Council and considered its response, including the appeals panel papers. I have considered the Council’s admissions policies and relevant legislation and guidance. I have also sent Miss B and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

School admissions

5. 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).
6. The normal admissions round for primary school places is in January - parents/ carers 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.
7. Councils may, at their discretion, consider some applications received after the closing date as “late for good reason” and consider them at the same time as the on-time applications.
8. In the case of community (and voluntary controlled) schools, the council is the admissions authority. If a school is undersubscribed, the admissions authority must offer places to the children of any parent/carer that applies, except for grammar schools. If a school is oversubscribed, the admissions authority must rank the applications in order against the oversubscription criteria.
9. Parents/carers 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.
10. Every admissions authority must keep a waiting list for at least the first term of the academic year of admission. They must rank the waiting list in line with the published oversubscription criteria.

The Council’s admissions criteria for community schools

11. If a community school is oversubscribed, (except for some schools with their own criteria), the Council offers places in line with the following admissions criteria:
1. Looked after and previously looked after children.
2. Exceptional social/medical need.
3. Children with a sibling at the school at the time of admission.
4. Children for whom the school is the nearest to their home address.
5. Any other children based on nearness to the school in a straight line.

The Council’s policies and “late for good reason” applications

12. The Council’s Coordinated schemes for admission to primary and secondary school for 2019/20 explains that:
• the closing date for primary school applications is 15 January 2019;
• the Council will treat some applications as “late for good reason” – these will generally be from families who are new to the area and could not reasonably have applied by the closing date;
• if an applicant moves from another local authority to Surrey after submitting an on-time application to the other local authority, the Council will accept the application as on time up to 11 February 2019, by which time applicants must have provided all supporting information including recent proof of ownership or tenancy of a Surrey property;
• applications deemed late for good reason will be considered alongside all on-time applications;
• applications not deemed late for good reason or received after 11 February 2019 will be considered as late and processed after the on-time applications.
13. As to the home address, the Admission arrangements for Surrey County Council’s community and voluntary controlled schools 2019/20 explains that:

“The address to be used for the initial allocation of places to Reception, Year 3 and Year 7 will be the child’s address at the closing date for application. Changes of address may be considered in accordance with Surrey’s coordinated scheme if there are exceptional reasons behind the change, such as if a family has just moved to the area. The address to be used for waiting lists, after the initial allocation, will be the child’s current address...”

14. They also state in respect of sibling status:

“A child will be given sibling priority if they have a sibling on roll at the school concerned and that sibling is still expected to be on roll at that school at the time of the child’s admission.”

Infant class size appeals

15. If a child is refused a place at one of their preferred schools, they may appeal to an independent appeal panel.
16. 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.
17. There are special rules governing appeals for infant classes. These appeals are known as “infant class size 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.
18. 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.
19. 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.

What happened

20. Miss B and her former partner previously lived in a village in Surrey. Her son, C, went to the local school and her daughter, D, was at nursery. The family moved to another county when her partner’s job was relocated.
21. D does not reach statutory school age until September 2020. However, Miss B was keen for her to start in the Reception Year in September 2019. She made an on-time application to her then home authority in December 2018, ahead of the closing date of 15 January 2019 for Reception Year places.
22. Unfortunately, due to a separation, Miss B and her children had to move home. Miss B was keen to return to the village as she felt it was in C’s best interests to return to his previous school. However, despite numerous efforts, she could not find rented accommodation in the village that was available, so she looked for an alternative place to live in the meantime.
23. On 31 January, Miss B found rental accommodation more than 11 kilometres from the village school. The same day, she made online applications to the Council for places for C and D at the village school.
24. She then called the Council’s school admissions team to seek advice. She says she spoke with an officer who told her that the online application submitted for D would be "fine" as it was "only a little out of time". The officer told Miss B that she would need to submit an “in-year” application for C and provided a link to the relevant documentation.
25. Miss B submitted an in-year application for C the same day. This referred to them moving due to parental separation, the 16 February tenancy start date and D also needing a place at the school from September. C’s present headteacher and the headteacher at the village school both supported C’s application. On 5 February, the Council told the village school it would offer C a place and that he could start before the formal offer was sent. On 7 February, Miss B sent the Council a copy of her 6-month tenancy agreement with the 16 February start date.
26. On 11 February, the Council sent Miss B a written offer of a place for C. Miss B accepted the place and then visited the school, where the headteacher confirmed that D was on their list of children who had applied to join in September. C started at the village school on 25 February, after the half-term break, while D started attending a nursery in a village near to C’s school.
27. On 16 April, the Council wrote to Miss B and explained that D had not yet got a school place. Miss B called the Council and was told that it would wait until June before offering a place, to see if there was any movement in places.
28. Miss B called back on 9 May and was told that D was second on the waiting list. A place was then offered on 14 May to the first child on the waiting list. That child had a sibling at the school and lived around 9 kilometres from the school, i.e. closer than D. Miss B called again and was told that D was now first on the waiting list and, if no further places became available at the village school, she would be allocated a place at the nearest available school.
29. The Council then wrote to Miss B in June and explained that her application had been treated as late and it had not been possible to offer D a place at the village school because it was full. The Council offered D a place in the village where the family were currently living.
30. Unfortunately, there was no further movement in places at the village school before the start of term in September 2019. Miss B remained in her rented accommodation 11 kilometres from the village and continued to take C to the village school and D to the nearby nursery.
31. The independent panel heard the appeal in October 2019. It considered the written evidence from the Council, as admissions authority, that the school was full. It considered the written case and further supporting evidence from Miss B explaining why it was important for D to attend school with her brother.
32. The Council’s representative put forward the case for the school being full and why it considered the admissions arrangements had been correctly applied. Miss B and the panel asked questions on the school’s case. Miss B then put forward her case to the panel. As part of her case, Miss B asked why D’s application had not been treated as late with good reason.
33. This had not been clearly raised in Miss B’s written case so the panel felt it needed to clarify the facts and applicable policies. It therefore adjourned the hearing while the Council’s presenting officer checked with colleagues, who sent an email explaining why the application was not considered to be late with good reason. Miss B resumed her case and the panel questioned her.
34. When the Council and Miss B had finished their presentation, the panel discussed the case. It noted that there were 30 children in the class and no spare teachers, so admitting a further child would breach the infant class size limit. It considered that the admissions arrangements had been correctly applied because D lived further from the school than the last child offered a place under the same criterion. It also decided that the Council was correct in not treating D’s application as late with good reason, because the family had not moved to Surrey until after 11 February.
35. The panel went on to consider the family’s circumstances. Panel members were sympathetic to the family’s situation. However, they did not consider that the Council’s decision to refuse D a place met the very high threshold for infant class size appeals. The clerk to the panel then wrote to Miss B setting out the panel’s decision and its reasons.

My assessment

Council failed to provide proper advice

36. Miss B considers that the Council failed to give her proper advice during the application process. She considers that officers should have advised her that she would need to move by 11 February for her daughter’s application to be treated as late with good reason. Instead she says she was told that the application would be “ok” because it was only a little late. She says that officers should also have advised her that C needed to be “on roll” for D to be given sibling priority.
37. I have considered whether there was fault in the way the Council responded. I was not a party to the conversation on 31 January. However, I do not consider that the officer gave incorrect advice based on Miss B’s online application showing a current Surrey address.
38. I note that Miss B then sent the Council an email and application on 1 February for C, who would otherwise be out of school. The covering email largely focused on the need to try to get C back into his former school. Miss B said they would be moving into the new property on 16 February and that C would be ready to start school on 25 February. She emphasised the importance of C being able to return to his old school and the need for the Council to move quickly to find him a place.
39. I note that in the same email. Miss B said that her daughter would need a place at the school from September 2019. She also said they were not in the catchment area (i.e. the village school was not their closest) but they planned to move back to the area in six months’ time.
40. Had Miss B known that her tenancy would need to start before 11 February and that C needed to be on roll for D to have sibling priority, she might have been able to take steps to meet that deadline. However, it is unclear whether Miss B could have started the new tenancy earlier or before her existing tenancy had ended.
41. Moreover, it seems to me that the focus of Miss B’s email and application was C’s immediate need for schooling. The Council acted quickly and in C’s best interests in making arrangements for C to return to his former school.
42. It might be that officers could have picked up that the tenancy date would begin after 11 February and so this might affect D’s application, but this did not affect C’s application which was the main focus of that email. As to C needing to be on roll in order for D to have sibling priority, I consider that the reason that Miss B provided C’s starting date was to emphasise the urgency of finding him a place, and the Council responded by doing so promptly.
43. On balance, given that focus of the email and application was C’s schooling, I do not consider that the Council was at fault in not providing specific advice to Miss B on meeting the criteria for a late with good reason application for D. I note also in this regard, that the Council’s policies are available on its website.

Council wrongly treated C’s application as a “late application”

44. Miss B considers that the Council should have treated D’s application as late with good reason.
45. The Council decided that D’s application did not meet the criteria to be treated as late for good reason, because the tenancy date started on 16 February.
46. This seems to me a correct application of the Council’s criteria. The Council will accept late applications for good reasons up to 11 February provided that proof of tenancy is provided. Miss B provided proof of tenancy, but this started on 16 February, so she was not living at the address on the application form on the cut-off date. The Council’s Admissions Criteria state that “the address to be used for the initial allocation of places to Reception… will be the child’s address at the closing date for application”. As the proof of residency did not correspond to Miss B’s actual address on the application date, I consider that the Council was entitled to treat the application as late.
47. I note that the Council accepted C’s application despite this also referring to the future tenancy date, so Miss B feels that the Council should have treated D’s application the same. However, C’s was an in-year application and a place was awarded to C based on the family’s specific circumstances. D’s application was part of the normal admissions round, and the Council had to treat all those applications fairly and consistently in accordance with the published admissions criteria.

Independent appeals panel wrongly refused her appeal

48. Miss B considers that the Council was wrong to refuse her appeal. She feels that it did not fully understand the Council’s policies or properly consider her appeal.
49. I see no grounds to question the panel’s decision that the school was full.
50. As to the application of the admissions criteria, the panel discussed whether the Council should have treated D’s application as late for good reason but concluded that it was right not to do so because the tenancy started after the 11 February cut-off date. The panel also decided that the admissions criteria had been applied correctly, because all places had been offered to children with a higher priority.
51. For the reasons set out above, I see no fault in the panel’s decision on this.
52. Lastly, the clerk’s notes show that the panel considered the family’s specific circumstances and whether, in light of these, it was reasonable for the Council to refuse a place.
53. I see no fault here. The panel considered Miss B’s case against the correct test of reasonableness set out in the Appeals Code but decided it did not meet that very high threshold.

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Final decision

54. I have closed my investigation because I have found no fault in the way the Council considered Miss B’s application for D or in the way the panel considered her appeal.

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Investigator's decision on behalf of the Ombudsman