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

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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 Ms X’s complaint to the Ombudsman and information from the Council. I also gave Ms 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. Ms X applied for her son (Y) to start Reception in September 2020. For personal reasons Ms X wanted her son to attend a school which was not close to her home. Ms X’s first and second preference schools (School B and School C) were both oversubscribed. The Council offered Y a place at Ms X’s third preference school.
6. Ms X appealed the decision not to offer Y a place at School C. 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. The Council wrote to Ms X and explained her appeal would be heard over the telephone.
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. Ms X’s appeal for a place was governed by infant class size legislation.
9. 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.
10. The clerk’s notes from the hearing show the Council’s representative explained the admissions process and why it had not offered Y a place. During her appeal, Ms X explained why she wanted Y to attend School C. Ms X explained why she wanted Y to attend a school which is not close to home. The clerk’s notes show Ms X did not receive all the papers before her appeal. These were provided during the hearing and Ms X was given time to read them. Ms X told me she did not feel this disadvantaged her.
11. The clerk’s notes show the panel considered the points set out in paragraph 7. It decided School C’s admission arrangements had been properly determined and applied. It 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.
12. I understand Ms 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 Ms X’s appeal for the Ombudsman to become involved. An investigation is not therefore appropriate.

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Final decision

13. The Ombudsman will not investigate Ms 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