Summary: The Ombudsman will not investigate Mrs X’s complaint about an unsuccessful appeal for a school place. This is because there is not enough evidence of fault and so we cannot question the merits of the panel’s decision.

The complaint

1. Mrs X complains about an unsuccessful school admission appeal for her daughter.

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The Ombudsman’s role and powers

2. This complaint involves events that occurred during the Covid-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether bodies in our jurisdiction followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during Covid”.
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 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

4. I considered Mrs X’s complaint to the Ombudsman and information from the school and Hertfordshire County Council. I also gave Mrs X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

5. St Teresa’s is a Voluntary Aided school and so the governing body is the admission authority. The school’s admission arrangements contain oversubscription criteria. These are used to decide which children the school will offer a place if there are more applications than places available. The school gives priority to children based on their religion, if they have a sibling at the school, and the distance from home to school. St Teresa’s uses a Supplementary Information Form (SIF) to gather information to show if a child is a baptised Catholic. As set out in the School Admissions Code, parents still need to apply for a school place via their home authority.
6. Mrs X wanted her daughter (Y) to start Reception at St Teresa’s in September 2020. Mrs X says she approached the school and a member of staff gave her a SIF to complete. Mrs X returned the SIF to the school.
7. In April 2020, Mrs X’s home authority (Hertfordshire County Council) offered places to children due to start Reception in September 2020. But because Mrs X had not applied to the Council for a Reception place, it did not make Y an offer. Mrs X contacted the Council, but all the places at St Teresa’s had been offered to on-time applicants. It was not therefore possible to offer Y a place.
8. Mrs X appealed the decision not to offer Y a place. Emergency legislation introduced by the Government during the Covid-19 pandemic allows school admission appeals to be heard remotely, by video or teleconference. Panels can also decide appeals based on written submissions.
9. 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, where admitting another child would mean there would be more than 30 pupils per teacher. 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.
10. What is ‘unreasonable’ is a high test, and for it to be met, the panel would need to be sure the decision to refuse a place was “perverse” or “outrageous”. For that reason, panels rarely find an admission authority’s decision to be unreasonable. Mrs X’s appeal was governed by infant class size legislation.
11. Hertfordshire County Council arranged and clerked Mrs X’s appeal for St Teresa’s. The Council wrote to Mrs X and explained her appeal would be based on written submissions. The Council gave Mrs X the opportunity to put questions to the school and panel in advance of the hearing. Responses were then circulated.
12. Mrs X asked why the school had given her the wrong form. Mrs X said the school had wrongly offered Y a nursery place and said it had not properly applied its admissions criteria. Mrs X explained why she wanted Y to attend St Teresa’s.
13. In its responses to Mrs X’s questions, the school explained it uses the same SIF for Reception and Nursery places. Mrs X had returned the SIF to the school after the closing date for Reception places, but while it was still accepting applications for its nursery. Mrs X had not applied to her home authority for a Reception place. If she had, St Teresa’s would have considered her application as late because of when she returned the SIF. Even if Mrs X had made an on-time application, St Teresa’s would not have offered Y a place. This was because of the number of children with a higher (or the same) oversubscription criterion, and the distance from their home to the school.
14. The Ombudsman is not an appeal body and we cannot question decisions taken without fault. Appeal panels must consider the information they are presented with – but it is for the panel to decide what weight it will give to the evidence it hears.
15. The clerk’s notes show the panel considered information from the school and Mrs X. The panel considered the points set out in paragraph 9. It decided the school’s admission arrangements had been properly determined and applied. It noted that Y would not have been offered a place, even if Mrs X had made an on-time application. The panel considered Mrs X’s reasons for wanting a place. The panel decided it was not an unreasonable decision to refuse admission. The panel decided that none of the grounds for allowing an infant class size appeal had been met. This is a decision the panel was entitled to reach.
16. I understand Mrs X is unhappy her appeal was unsuccessful. But each panel needs to reach a decision based on the information before it. There is not enough evidence of fault in how the panel decided Mrs X’s appeal for the Ombudsman to become involved. An investigation is not therefore appropriate.

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Fianl decision

17. The Ombudsman will not investigate Mrs X’s complaint. This is because there is not enough evidence of fault and so we cannot question the merits of the panel’s decision.

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Investigator's decision on behalf of the Ombudsman