Summary: Miss B complains that the Council did not properly deal with a school admissions appeal. The Council was at fault because it did not answer questions from Miss B at the appeal hearing and it did not fully record the factors taken into consideration when it decided her appeal. This did not cause injustice to Miss B. The Council has issued guidance to its staff.

The complaint

1. The complainant, whom I shall refer to as Miss B, complains the Council did not deal with a school admissions appeal for her son properly because:
• It gave no deadline for returning supplementary information about exceptional circumstances relating to her admission application; and
• It did not consider her son’s disability issues; and
• It did not answer questions in the hearing that it said it would.
2. Miss B says the decision arrived at was wrong and her son now does not have a place at the school he requires.

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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 must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

7. I have spoken to Miss B about her complaint and considered the information she has provided to the Ombudsman. I have reviewed the documentation from Miss B’s appeal. I have also considered the Council’s response to her complaint and its response to my enquiries.
8. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislative background

9. Independent 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. These are called excepted pupils.
10. 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 one which a reasonable authority would have made in the circumstances.
11. What is ‘reasonable’ 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.
12. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.

The Council’s admissions policy

13. Where there are more applicants than places available, priority will be given to pupils without an EHC plan but who have Special Educational Needs that can only be met at a specific school, or exceptional medical or mobility needs that can only be met at a specific school.
14. Priority will be given to children based on their exceptional medical or social needs. ‘Social need’ does not include a parent’s wish that a child attends the school because of a child’s aptitude or ability or because their friends attend the school. ‘Medical need’ does not include mild medical conditions as all Leeds schools are expected to be able to meet these needs.
15. Each application must include a 1b Supplementary Information Form (SIF) along with supporting evidence from a medical specialist or social worker, outlining the child’s needs and why they must attend one particular school rather than any other, based on those needs. If the evidence is not submitted with the application, a child’s medical or social needs cannot be considered.
16. Cases will be considered individually by a local authority professional panel and where necessary in consultation with the school that has been preferenced.
17. Any primary applications returned or amended after 12 February 2020 will be dealt with as late applications, meaning they will only be dealt with once all other preferences have been considered, unless there are significant and exceptional reasons for the late application. Late applications received after 12 February will be considered before placements are made (where no preference could be met).

What happened

18. Miss B’s son – P – was due to start primary school in the academic year 2020/21. Miss B submitted an in time application naming School 1 as their first preference. Miss B indicated on the application form that she was seeking priority admission at School 1 based on exceptional medical needs (Priority 1b). Miss B did not submit the required SIF to support this.
19. The Council reviewed her application and sent her a reminder that she needed to submit a SIF. Miss B did not submit a SIF.
20. Miss B’s application was not ranked highly enough for P to be offered a place at School 1. P was offered a place at a different primary school, School 2.
21. Miss B appealed the decision. She explained she wanted P to attend School 1. At the appeal hearing, she raised issues about P’s medical circumstances, the accessibility of School 1 and P walking to school. Miss B provided more information to the appeal hearing about P's medical circumstances.
22. The appeal panel did not uphold the appeal. In its decision letter, it said it considered all the evidence available. The panel considered grounds of appeal did not fall into any of the relevant categories relating to appeals concerning infant class size.

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Analysis

23. The Ombudsman is not an appeal body. In cases such as this, our role is to determine whether the appeal panel followed the correct procedure in making its decision. If we find it has, then we are unable to criticise it.
24. In infant class size appeals, the panel has very limited grounds to uphold an appeal. The law says an infant class must not have more than 30 pupils. If this number has been reached – as it had the case of School 1 – the panel can only uphold the appeal if it considers the admissions criteria did not comply with the law; that the criteria were not applied properly; or that the decision to refuse was one no reasonable authority would make.
25. Miss B says the impact of Covid 19 made it difficult to provide supporting information, which is why she did not provide the required SIF. The application process and the Council’s reminder were both significantly before any impact of Covid 19. Miss B had sufficient time to complete the 1b SIF.
26. Neither the reminder email sent by the Council, or the 1b SIF guidance say when the form should be returned by. However, the Council’s admissions policy clearly states how it will deal with applications for priority and late applications, including timescales. This is not fault by the Council.
27. The clerk’s notes show that the appeal panel considered the representations made by Miss B in person at the appeal hearing, and information regarding her application, P’s medical circumstances, the lack of a 1b SIF, walking to school and the accessibility of School 1.
28. Medical information provided by Miss B was also taken into account by the appeal panel.
29. The Council agrees that Miss B asked questions in her appeal submission, that she was told her questions would be addressed by the presenting officer and that it is unclear whether her questions were directly raised or answered during the hearing. This is fault by the Council. This did not cause injustice to Miss B because this would not have made a difference to the outcome of her appeal.
30. The Council says it expects the clerk’s notes to fully reflect the factors taken into consideration when the panel determined whether the decision to refuse admission was an unreasonable one, in the context specifically of the medical needs outlined by the family and in the supporting evidence.
31. The recording of the panel decision states, “As the 1B priority application had not been made, the decision by the Local Authority was not unreasonable.” This does not fully reflect the factors taken into consideration during the hearing, including those outlined in paragraphs 27 and 28. This is fault by the Council. This did not cause injustice to Miss B because this would not have made a difference to the outcome of her appeal.
32. Refusing the appeal was a decision the panel was entitled to take under the circumstances.
33. As a result of the Ombudsman’s investigation the Council has said it will re-emphasise the timescales and that the SIF would need to be returned before national offer day in order to be taken into account when allocating places.
34. The Council has also said it will remind all clerks that they must ensure that they fully record the factors taken into consideration when reaching their decision.
35. The Council has invited Miss B to complete a Priority 1b SIF to outline specifically why School 1 is the only school able to meet P’s needs, including any of the additional information that has been gathered since the initial application. This will allow the 1b panel to consider the request, and if it is agreed, ensure that his application is ranked appropriately on the waiting list for a place.

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Final decision

36. I have found fault by the Council, which did not cause injustice to Miss B. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman