Summary: Mr X complains about the way the Council dealt with his application for and appeal about a place for his daughter at School 1. The errors in the appeal process amount to fault but are not such that they would call into question the panel’s decision to refuse Mr X’s appeal. It would not therefore be appropriate to recommend a further appeal hearing.

The complaint

1. The complainant, whom I shall refer to as Mr X complains about the way the Council dealt with his application for and his appeal about a place for his daughter at School 1.

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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 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)
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)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Admission appeals

5. Independent school admission appeals 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. 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 that to refuse a place was “perverse” or “outrageous”. For that reason panels rarely find an admission authority’s decision to be unreasonable.
7. 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 here

8. Mr X made an on-time application for a place in Reception for his daughter. He expressed a preference for two schools, with School 1 being his first choice.
9. Mr X’s preferred schools were both oversubscribed and did not offer his daughter a place. The Council considered Mr X’s application and offered his daughter a place at a different school. Mr X rejected this offer as the school was over three miles away from his home. He complains that when he contacted the Council it wrongly told him the school offered was only 0.38 miles from his home. Mr X states the Council agreed to write to him with an explanation for this error but has not contacted him.
10. Mr X appealed against the decision not to offer a place at School 1. Due to the Covid19 pandemic, the Council arranged a virtual appeal hearing in June 2020. Mr X complains the Council provided him and the appeal panel with incorrect information about how places had been allocated, in advance of the appeal.
11. School 1’s admission criteria gives priority to children with special educational needs, followed by looked after children; children with siblings at the school; children whose home address is in the catchment area; denominational grounds; children with strong medical or social grounds and finally, all other applicants. The Council’s appeal information stated it had offered 16 children places under the other applicants criteria. Priority is given to children who live closest to the school, and the further distance allocated was 1.392 miles.
12. Mr X lives 0.719 miles from School 1 and questioned why his daughter had not been offered a place under the other applicants criteria. The clerk’s notes show the Council confirmed there were errors in the information provided.
13. The appeal hearing was adjourned so that the Council could provide evidence the furthest distance a place was allocated to was 0.35 miles, not 1.392 miles. Mr X complains he did not receive a copy of the corrected information before the hearing resumed the following day. Mr X did not therefore have time to consider the Council’s revised information or prepare his case before the hearing resumed.
14. The revised information amended the number of places allocated under the sibling, catchment, and denominational criteria as well as for all other applicants. This now showed only one place was allocated under the other applicants criteria, and they lived 0.35 miles from School 1. Mr X was unhappy with the extent of the changes, and that he had not received a copy of the information before the appeal reconvened. He asserted his daughter should be given a place at School 1.
15. The clerk’s notes show the panel acknowledged Mr X’s concerns about the late changes to the information provided about how places were allocated. But it was satisfied the Council had correctly calculated the distances when the places were allocated. The panel also noted that Mr X had not provided any evidence that the updated information had affected his appeal.
16. The notes record the panel was satisfied that admitting any additional pupils would breach the infant class size limit. It considered the admission arrangements complied with the law, and that the decision to refuse a placed was one which a reasonable authority would have made in the circumstances. However, the notes do not record the panel’s view on whether the admission arrangements were correctly and impartially applied. This section of the notes is blank. The panel unanimously refused Mr X’s appeal.
17. The decision letter confirmed the panel had taken account of the points Mr X had raised, and his concerns about the accuracy of the information the Council had provided. The panel did not consider any of the grounds of appeal applied in his case. It was therefore unable to allow his appeal.
18. Mr X has asked the Ombudsman to investigate his complaint. He is unhappy that rather than counter his arguments for a place at School 1, the Council changed the evidence. He is also disappointed the panel accepted the revised figures and did not challenge them.
19. In response to my enquiries the Council states the errors in the initial information provided was due to the data being misread when it was collated for the report. It states this was not a reflection of the actual allocation, which was done correctly. The Council has provided evidence of the way it allocated places for School 1.
20. To ensure such errors do not occur again, the Council states it has reconfigured its system at individual school level to enable information to be extracted correctly once places are allocated. It is also moving away from a spreadsheet counting base to avoid any future errors in reporting.
21. The Council states the panel heard four other appeals for School 1 on the same day, and the incorrect information was initially presented in three of them. A correct breakdown of children offered places under each criteria was subsequently provided. The Council states the panel did not make a decision on any of the appeals until they had all been heard, and it took account of all the updated information. It also states the panel discussed and confirmed that the admission arrangements had been correctly and impartially applied.
22. In relation to the distance from Mr X’s home to the school offered, the Council states the calculation was correct. The school has two sites, and an officer gave the distance to the wrong site.
23. Since Mr X complained to the Ombudsman, he has revised his school preferences. The Council has allocated Mr X’s daughter a place at his second preference.

Analysis

24. We would expect any information provided in support of the Council’s decision not to allocate a school place to be accurate. There were significant errors in the Council’s breakdown of how places were allocated, and these errors amount to fault. The failure to provide Mr X with the updated information in advance of the reconvened appeal also amounts to fault.
25. Although there is fault, the records show Mr X was able to comment on and challenge the revised information at the reconvened hearing. There is no evidence to suggest Mr X would have changed or added to the information he presented to the panel had he seen the Council’s revised information earlier.
26. The error in the clerk’s notes is also fault, but I do not consider it calls into question the panel’s decision. It is apparent from the notes as a whole that the panel considered all the available information and determined the admissions arrangements had been correctly and impartially applied. This is also confirmed in the decision letter sent to Mr X.
27. The panel was satisfied the limited grounds of appeal did not apply in this case and refused the appeal. This is a decision the panel was entitled to reach.

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Final decision

28. The errors in the appeal process amount to fault but are not such that they would call into question the panel’s decision to disallow Mr X’s appeal. It would not therefore be appropriate to recommend a further appeal hearing.

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Investigator's decision on behalf of the Ombudsman