Summary: the complainant complained the Council did not give proper notice of a change in its schools’ admissions policy and failed to properly consider his application for a school place. The Council said it amended the policy following an adjudication by the Office of the Schools Adjudicator and its appeals panel properly considered the appeal against the decision on the application. We find the Council acted without fault.

The complaint

1. The complainant whom I shall refer to as Mr X says the Council and an appeal panel failed to properly consider his application for a school place for his daughter Y. Mr X says the Council failed to tell him of a change to the sibling priority criteria which prevented Y gaining a place at the same school as her sister, Q.
2. Mr X says this resulted in Y and Q attending different schools making it difficult for him and Mrs X ensuring they reached school safely and on time. Mr X says but for this change to the sibling criterion and faults in the appeal procedure the appeal panel would have offered Y a place at the same school as, Q.
3. Mr X wants the Council to recognise fault, suspend the revised sibling priority criteria and provide Y with a place at her preferred school. Alternatively, Mr X wants the Council to consider offering free school transport for Q.

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The Ombudsman’s role and powers

4. 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)
5. 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 leads us to question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
6. If 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

7. In considering this complaint I have:
• Contacted Mr X and read the information presented with his complaint including researching other decisions made by the Ombudsman;
• Put enquiries to the Council and reviewed its response;
• Researched the law, government guidance, our reports and decisions and the Council’s policy;
• Shared with Mr X and the Council my draft decision and considered any comments received.

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What I found

Government guidance and the role of the Office of the Schools Adjudicator

8. The Schools Admissions (Infant Class Sizes) (England) Regulations 2012 limit the numbers of pupils in infant classes and explain who qualifies as an ‘excepted pupil’.
9. The Schools Admissions Appeals Code 2012 (2012 Code) regulates the conduct of appeal hearings. It sets out special rules for appeals involving infant classes, which the law limits to 30 children with few exceptions.
10. 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. Section 4 of the 2012 Code sets out 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.
11. What is ‘unreasonable’ is a high test. The panel needs to be sure that the decision to refuse a place was “perverse” or “outrageous”. For that reason, panels rarely find an admission authority’s decision to be unreasonable.
12. Some children are classed as ‘excepted children’ under the 2012 Regulations for example children who have an EHC Plan that names the school or who are ‘looked after’ by the local authority.
13. 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.
14. The Office of the Schools Adjudicator (OSA) has the power to order the Council to propose amendments to admission arrangements it finds unlawful or unfair.
15. The OSA does not make rulings on the admissions for individual pupils and is not a statutory tribunal. The decisions of the OSA are not within our jurisdiction.
16. We expect councils to follow the rulings of the OSA.

The Council’s admissions arrangements

17. In 2018 the Council conducted a public consultation on proposed changes to its schools’ admissions policy for admissions in 2020/21 under the School Standards and Framework Act 1998. Following the consultation, the Council adopted a revised schools’ admissions policy in February 2019. The revised schools’ admissions policy contained a change to the oversubscription criteria. The sibling criterion would not apply if the family’s address had changed after the date the Council offered the child on roll their place at the school and the family home was further than one mile from the school.
18. The OSA decided the arrangements for 2021/2022 reasonably prioritised children living closest to a school above those who had moved some distance away, even if they had a sibling there. However, the OSA decided it was not reasonable to remove sibling priority for those who move closer to the school but still live over a mile away. Therefore, the OSA ordered the Council to amend its arrangements by 28 February 2021. The OSA declined to comment on similar arrangements for 2020/2021 because the objector presented the objection outside the time limit.

What happened

19. Mr X applied for a place in the Reception Class of School 1 for Y because her older sibling Q was studying there. The school was oversubscribed and so the Council followed its priority allocation procedure.
20. The Council refused the application because it had allocated all the places to children with higher priority than Y under the Council’s admissions priorities. Successful children met the criteria of living closer to the school than Y or had a sibling at the school and lived within a mile of it.
21. Mr and Mrs X say they moved from their former home in 2016 to a home over a mile from School 1 before the Council changed the criterion. They had expected Y to gain a place through the sibling priority as they understood it. They were not aware of the changes.
22. The Council offered Y a place at school 2, which it says is half a mile from the family home.
23. Mr X appealed against the Council’s decision. As an appeal for an infant class place, the appeal panel had only limited grounds on which it could uphold the appeal.
24. At appeal the Council set out its case showing School 1 had reached its published admissions number. The Council said the limits on space available and health and safety concerns meant it could not accept further pupils without breaching the infant class size rules.
25. The Panel considered whether the Council’s admissions criteria complied with the law and whether the Council had properly applied them. The Panel decided the admissions criteria complied with the law and had been properly applied. The Panel then considered if it could treat Y as an ‘excepted child’. The Panel decided Y did not meet the criteria for an ‘excepted child’.
26. During the hearing, the Panel took advice on the implications of an Ombudsman’s decision about another councils’ admission arrangements cited by Mr X in support of his appeal.
27. The Clerk to the Panel’s notes record the Panel heard the family’s concerns, and asked questions. The Panel noted the difficulties experienced by the family in getting the two children to school on time and the likely distress this would cause. While sympathetic, the Panel decided the Council’s decision was not so unreasonable that the Panel could consider it as “perverse” or “outrageous”. The Panel rejected the appeal.
28. Mr X says had he known about the change in the admissions policy and its impact he may have decided that Q should not continue at School 1.
29. Mr X says the Council did not consult him about the change or explain to him the impact of the change in the sibling priority. But for that change Y would have gained a place at School 1 because she had a sibling attending the school.

Analysis – was there fault causing injustice

30. My role is to consider if the Council and appeal panel followed the proper procedure when deciding Y’s application for a place at School 1. It is not to decide whether Y should have a place. However, if I find fault in the way in which the Council and Appeal Panel decided the application I must consider if that caused an injustice and how the Council should address that injustice.
31. The Council followed the correct procedure and gave due publicity on its proposal to change the admissions policy include the sibling criteria. It is not under a duty to consult individual parents but to apply the criteria set out in its current admissions policy. I find therefore the Council acted without fault in adopting the new criteria.
32. The OSA decision directed the Council to amend its allocations policy by February 2021. The unlawful or unfair part of the policy related to where a family which had a child at a school, moved closer to the school but remained over a mile away from it. This is not applicable to the move made by Mr X.
33. The Panel heard evidence from both Mr X and the Council. The Panel decided the Council had shown it had correctly applied the admission arrangements and that those arrangements were lawful. The Panel considered the family’s circumstances to weigh up whether the decision to refuse admission was so unreasonable it could consider it as perverse. The threshold for finding a decision perverse is very high. The Panel had before them the application, the decision to refuse, the appeal documents, and the presentations from Mr X and the Council’s representative and asked questions. The Panel had before them all relevant information when deciding the appeal (and whether the refusal had been perverse). Therefore, in deciding the admission application and appeal, I find the Council and appeal Panel acted without fault.

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Final decision

34. In completing my investigation, I find the Council acted without fault in adopting the admissions policy and in applying it to Y’s application.

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Investigator's decision on behalf of the Ombudsman