Summary: The Ombudsman will not investigate Mr 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. Mr X complains about an unsuccessful school admission appeal for his son.

Back to top

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)

Back to top

How I considered this complaint

4. I considered Mr X’s complaint to the Ombudsman and information from the Council. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

Back to top

What I found

5. Mr X applied for his son (Y) to start reception in September 2020. Mr X listed three schools on his application and included the home address on his application. Because there were more applications than places available at the three schools Mr X applied to, the Council used the school’s oversubscription criteria to decide which children it would offer places to. The Council did not offer Y a place at any of Mr X’s preferred schools. In line with its published admission arrangements, the Council offered Y a place at the closest school with spaces.
6. Mr X appealed the decision not to offer Y a place at his second preference school (School Z). 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.
7. 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.
8. 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. Mr X’s appeal was governed by infant class size legislation.
9. The Council arranged for the first part of Mr X’s appeal to be based on written submissions. This is when the panel would consider the school’s admission arrangements in general, how the Council had applied them, and to confirm that infant class size legislation should apply. The Council gave Mr X the opportunity to put questions to the school and panel before the hearing. Responses were then circulated. The second stage of the appeal was conducted by telephone. This was when Mr X had the opportunity to present his individual case.
10. As part of his appeal, Mr X explained his son attended a childminder for two to three mornings a week and that this was likely to increase. Mr X therefore wanted the Council to use his childminder’s address, rather than the home address (used on his original application) to calculate the distance from home to School Z. Before the hearing, Mr X asked the Council how it defined a child’s home address. The Council’s response included the following:

“For the purposes of the school admissions process, the home address of the child is determined where the child lives for the majority of the week, this is where the child wakes up from Monday to Friday”.

11. 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.
12. The clerk’s notes show the panel considered information from the school and Mr X. The panel considered the points set out in paragraph 7 – including how Mr X’s original application had been considered. It decided the school’s admission arrangements had been properly determined and applied. The address Mr X used in his original application for his school place was the one the Council had correctly used to measure the distance to his preferred schools. I note that if Mr X had used his childminder’s address on his original application it would have increased the distance to his first preference school, and therefore reduced the chances of him being offered a place. The panel decided the Council had processed Mr X’s application in line with its published arrangements. 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.
13. I understand Mr X is unhappy his 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 Mr X’s appeal for the Ombudsman to become involved. An investigation is not therefore appropriate.

Back to top

Final decision

14. The Ombudsman will not investigate Mr 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.

Back to top

Investigator's decision on behalf of the Ombudsman