Summary: The Ombudsman will not investigate Ms X’s complaint about an unsuccessful appeal for a school place and the Council’s decision about waiting list priority. This is because we are unlikely to find evidence fault by the panel and the Council, and so we cannot question the merits of their decisions.

The complaint

1. The complainant, whom I refer to as Ms X, complains about an unsuccessful admissions appeal for a school place for her son (Y). She says the school admission appeal panel failed to sufficiently consider the grounds of her appeal.
2. Ms X also complains about the Council’s decision not to give Y additional priority on the waiting list for the school in question.

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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 provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
4. 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 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

5. I have considered the information Ms X provided in support of her complaint to the Ombudsman and the appeal documents provided by the Council. I have also considered Ms X’s comments on a draft version of this decision.

What I found

6. Ms X applied for a school place for her son (Y) for admission to the Reception year group in September 2020. The Council received more applications than it had spaces available for her preferred school (School Z). It applied its oversubscription policy to decide which children would be offered a place. Y was given the oversubscription criterion of ‘other’. Some children with this oversubscription criterion were offered a place at School Z. But all lived closer to the school than Y, who was not offered a place. In line with its published scheme, the Council offered Y a place at the closest school with spaces, this was Ms X second choice school. Ms X appealed about the refusal of a place at School Z.
7. The Council’s oversubscription policy allows for additional priority to be given within each oversubscription category where a child has exceptional medical, social or special educational needs demonstrated by supporting evidence from a professional. Decisions about exceptional cases are made by the Council’s Admission Committee, made up of elected members.
8. Ms X’s provided information about Y’s needs in her application, but due to the lack of evidence of this the Admissions Committee decided not to award Y’s application additional priority.
9. Subsequently Ms X asked the Council to reconsider awarding additional priority in Y’s case to improve his position on the waiting list, in the light of further evidence she provided about his special needs. Ms X also asked the Council to consider her new information as a fresh application for School Z on the basis of a change in circumstances, which would also give her fresh appeal rights.
10. The Admissions Committee considered Ms X’s case and the new medical information she provided. It decided the evidence was not sufficient to allow a fresh application, nor to allow additional waiting list priority. It explained that the evidence provided showed Y remained medically undiagnosed and it was not satisfied School Z was the only school that could meet Y’s needs. Ms X remained unhappy and continued with her appeal.
11. Independent school admission appeal 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 on which a reasonable authority would have made in the circumstances.

12. 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.
13. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgement about the evidence it hears.
14. Ms X made a written submission and provided supporting letters to back her appeal case. She also attended the appeal hearing to make her case in person. The school admissions appeal panel refused Ms X’s appeal.
15. Ms X complains the panel did not consider or respond to the grounds of her appeal. In particular she explained the Council’s admissions policy on additional priority for exceptional needs is not clear, nor objective or fairly implemented. Ms X says this put her at a disadvantage as it prevented her from submitting sufficient evidence to support her application for Y on those grounds.
16. Having considered the clerk’s notes of the appeal hearing, I can identify nothing to suggest the panel was at fault in the process it followed. Ms X was able to make her case and the panel was able to question it. Each ground put forward by Ms X was considered by the panel. The panel also considered the role of the Admissions Committee and found no reason to question that role or its decisions.
17. The weight panel members give to the evidence before them is a matter for their judgement, not for the Ombudsman. The appeal notes and decision letter show that the panel members considered the evidence and unanimously took the view that none of the grounds on which they could uphold the appeal applied. That was their decision to make.
18. In the absence of evidence of fault in the way the panel made its decision, the Ombudsman cannot criticise the decision the panel made, or intervene to substitute an alternative view. An investigation is not therefore appropriate.
19. I also considered the information provided about the Admission Committee’s decision not to accept a new application from Ms X or grant Y additional priority on the waiting list. But I am not convinced there is sign of fault in the way the Committee considered these matters.
20. In particular I see no reason to doubt that the Committee took proper account of the evidence Ms X provided about Y’s emerging special needs. I also consider the Committee’s consideration of a new application was in line with the statutory Admission Appeals Code which says that second applications are only accepted in exceptional cases where there has been a significant and material change in circumstances.

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Final decision

21. I will not investigate this complaint about an unsuccessful appeal for a school place and the Council’s refusal to award additional priority on the school’s waiting list. This is because we are unlikely to find evidence of fault by the appeal panel and the Council, so we cannot question the merits of their decisions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman