Summary: A parent complained about a school’s decision to rank his application for a school place under its lowest admission criterion, and its failure to adjust his child’s position on the waiting list in view of comments the head teacher made at an admission appeals hearing. But the Ombudsman does not have reason to investigate this complaint because there is no sign of fault in the way the school and the independent appeal panel dealt with the matter.

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 provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
3. 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))

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How I considered this complaint

4. I considered the information Mr X provided with his complaint and his comments in response to a draft version of this decision. I also took account of documents from the School and the local authority about Mr & Mrs X’s appeal.

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What I found

5. Y is due to start school in the Reception year in September. Mr X listed the School as first preference on his application form, mainly because Y’s sibling was already going there.

6. But the School refused Mr X’s application as it was oversubscribed, and all the places went to children with a higher priority than Y under its Admissions Criteria. In particular the successful children were from families assessed as active members of a Church of England or other Christian church.

7. Mr & Mrs X appealed about the School’s refusal of admission. The School asked the local authority to set up an independent appeal panel on its behalf. But the panel turned down Mr & Mrs X’s appeal. Mr X then complained to the Ombudsman.

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Analysis

8. Appeal panels must follow the law when considering an appeal. In particular the law says the size of an infant class must not be more than 30 pupils per teacher, with very limited exceptions. In 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, and were properly applied to the case;
• the decision to refuse a place was one which a reasonable authority would have made in the circumstances.

What is ‘reasonable’ is a high test. To uphold an appeal on this ground the panel would need to be sure that the decision to refuse a place was “perverse” or “outrageous”. For that reason, panels in infant class appeals rarely find an admission authority’s decision to be unreasonable.

9. Mr X was applying for the Reception year at the School which meant his appeal was heard under the infant class size rules. The admission number for the School in Reception is 60, with children split into two classes of 30. At the time of Mr & Mrs X’s appeal all 60 places had been filled. In the circumstances, the panel decided the infant class limit in one of the classes would be exceeded if Y was admitted.
10. From the records of what was presented at the hearing about these matters, it seems to me the panel had good reason to agree with the School’s case on infant class size prejudice.
11. Mr & Mrs X’s main case at the appeal was that the admission arrangements had not been fairly applied in their case.
12. To be accepted as an active church member under the Admissions Criteria the School asks applicants to provide verification from their vicar, or other appropriate minister, that at least one parent has attended church at least fortnightly for the past two years.
13. But Mr & Mrs X’s vicar had not confirmed fortnightly attendance, although she did point out they were long-standing members of the church and had other commitments in the community. The vicar also provided a letter of support for Mr & Mrs X to use at the appeal.
14. In the circumstances Mr & Mrs X felt it was unfair for the School to say Y did not qualify under the active church member criterion as their family had been very involved in church activities for many years in addition to attending services and, in any case, the church’s record of attendance was not reliable.
15. Mr & Mrs X raised other issues in their appeal case, including about already having another child at the School, Y’s familiarity with the School and his developmental needs, and the impossibility of getting both children to their different schools on time if Y went to the alternative school he had been offered.

16. However the panel accepted that the School’s admission arrangements were lawful and had been correctly applied in Y’s case. The panel also went on to conclude that the School’s refusal decision was not unreasonable, and so it turned down Mr & Mrs X’s appeal.
17. But from the information provided I do not see sign of fault in the way the appeal panel dealt with Mr & Mr X’s case.
18. In particular the appeal clerk’s notes from the hearing and the decision-making, and the panel’s decision letter, indicate that panel members noted and understood the points Mr & Mrs X put forward in their case. It is also evident from the clerk’s notes that panel members explored the issues with Mr & Mrs X and the School’s head teacher in their questions on the day. As a result I am not convinced we could say the panel did not take suitable account of Mr & Mrs X’s appeal case.
19. At the end of the day the panel was entitled to reach its own view about the evidence it read and heard from both sides at the appeal. It also had to apply the strict rules required by law concerning the size of infant classes. In Mr & Mr X’s case this meant the panel could only uphold the appeal if it concluded the School’s refusal decision was so unreasonable as to be perverse.
20. But the threshold for finding a decision perverse is very high, and from the information provided I do not see we would have grounds to say there was fault in the way the panel reached its view about reasonableness in Mr & Mr X’s case.
21. However Mr X’s main complaint was about the School’s failure to act on a comment the head teacher made at the appeal hearing. In particular Mr X said the head mentioned that if he and his wife had provided the church reference they used during the appeal hearing with their original application they would have been assessed in a higher category under the Admissions Criteria.
22. Applicants on the School’s waiting list are ranked in the same order as the Admissions Criteria. So in view of the head’s comments, Mr X wanted the School to now increase Y’s priority on its waiting list.
23. But having gone through the clerk’s notes from the proceedings at the hearing, I could find no record of the head making the comments Mr X said she made. However the head is noted as saying that a different reference which said there was regular attendance would qualify for an offer of a place. The head is also recorded as saying that Y could go up the list if Mr & Mrs X got another reference, but this was a matter for them and the vicar to resolve.
24. In the circumstances, I do not see we have sufficient evidence to suggest the School is at fault for not moving Y up the waiting list based on what the head said at the appeal hearing.

Final decision

25. The Ombudsman does not have reason to investigate Mr X’s complaint about the School’s failure to increase his son’s position on its waiting list in view of comments made by the head teacher at an admission appeal hearing. This is because there is no sign of fault by the School in this respect. There is also no sign of fault in the way the appeal panel dealt with Mr X’s appeal.

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Investigator's decision on behalf of the Ombudsman