Summary: There was fault in the way an appeal panel considered an application for a school place in that it incorrectly applied law relating to infant class sizes to an application for a place in year 5. This casts doubt on the decision the panel reached. Mr X has now been offered a fresh appeal to remedy the injustice caused. Recommendations for an apology and service improvements are also made.

The complaint

1. Mr X complains about the way an appeal panel considered and rejected his appeal against the decision to refuse his child a year 5 place at St Philip’s Catholic Primary School (‘the School’).

Back to top

The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
3. We investigate complaints about school admission authorities.
4. We cannot question whether a 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))
5. If we are satisfied with school admission authority’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)

Back to top

How I considered this complaint

6. I have considered the information provided by:
• Mr X
• The Clerk to the appeal panel.
7. This includes:
• The Clerk’s notes of the appeal hearing
• The decision letter
• The complaint correspondence
• A previous investigation by the Ombudsman.
8. I have considered the relevant law and guidance including:
• The School Admissions Code
• The School Admissions Appeal Code
• The School Admissions (Infant Class Sizes) Regulations 2012
• The School Admissions (Appeals Arrangements) (England) Regulations 2012.
9. Mr X and the School had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

The law

10. The Department for Education has published statutory guidance about the conduct of school admission appeals. Admission authorities and appeal panels have a legal duty to act in accordance with the provisions set out in the guidance.
11. The School Admission Appeals Code 2012 (‘the Appeals Code’) sets out the process the Independent Appeal Panel (the panel) must follow when considering an appeal.
12. Independent appeal panels must follow the law when considering an appeal. For non-infant classes the panel must consider whether:
• the admission arrangements comply with the law and
• the admission arrangements were properly applied to the case; and if so
• the panel must then consider whether admitting another child would prejudice the education of others.
13. If the panel finds there would be prejudice the panel must then consider an appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
14. The Infant Class Size Regulations limit the size of infant class sizes to 30 pupils per qualified teacher. There are only limited circumstances in which more than 30 children can be admitted and are special rules governing appeals for Reception and Years 1 and 2. Appeals under these rules are known as “infant class size appeals”.
15. The Ombudsman does not question the merits of decisions properly taken. An appeal panel is entitled to come to its own judgment about the evidence it hears.
16. When an admission authority commissions another organisation (such as a council) to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
17. The School Admissions Code says all admission authorities must set an admission number for each ‘relevant age group’, this is the age group at which pupils are normally admitted for example reception, year 7 and year 12. This is known as the Published Admission Number or PAN. The Code says Admission Authorities must notify the local authority if at any time following determination of the PAN, an admission authority decides that it is able to admit above its PAN…Admission Authorities may also admit above their PAN in-year.
18. The Appeals Code says Admission Authorities must arrange and fund up-to-date training for panel members on any aspect felt to be relevant to the functioning of the panel.
19. The Appeals Code also says that whilst the panel must take into account the school’s PAN, the admission authority must be able to demonstrate prejudice over and above the fact the PAN has been reached. The panel must not reassess the capacity of the school but must consider the impact on the school of admitting additional children and in reaching a decision whether or not there would be prejudice the panel may wish to consider:
• The effect of an additional admission in current and following academic years as the child moved through the school;
• Whether changes have been made to the school’s physical accommodation since the admission number was originally set;
• The impact on the organisation and size of classes, the availability of teaching staff and the effect on children already at the school.
20. Schools and Admission Authorities must have due regard to their obligations under:
• The Equality Act
• The Human Rights Act
• The Public Sector Equality Duty.

The School

21. The School is a voluntary aided Catholic school with a PAN of 30 in each year. As a voluntary aided school, the School’s governing body is its own admission authority. The School delegates co-ordination of the admissions arrangements to the local authority during the normal admission round. It asked the Council to carry out Mr X’s appeal on its behalf.
22. At the time of Mr X’s recent appeal, the School had 204 pupils against a PAN (for the whole school) of 210 with 33 pupils in year 5.

The first appeal and Ombudsman investigation

23. In July 2019 Mr X’s wife, Mrs X, applied to the Council for a year 5 place at the School from September 2019. The School refused a place as it was full. The Council allocated an alternative school which was 0.9 miles from Mr and Mrs X’s home. Mrs X appealed on the basis she had a health condition which meant her child needed to attend the School as it was nearer and the only school manageable for her to walk to. Mrs X said her condition meant she was not always able to drive and Mr X then needed to reorganise his work and takeover the school run.
24. The School, as Admissions Authority, held an appeal in September 2019 when it refused Mr and Mrs X’s child a place. It arranged for the Council to hold the appeal on its behalf. Mr X complained to the Ombudsman about the conduct of this appeal and we investigated.
25. The Appeals Code requires panels to leave a record of a hearing that enables the Ombudsman to see how they reach their decisions. We found the 2019 appeal panel did not do so. As it was a Year 5 appeal, the panel had to balance the need of the child to attend the School against the prejudice to the efficient education of other children of admitting an additional child to that class. The appeal panel needed to give clear reasons for its decision that reflected the cases put forward by both sides.
26. The family’s case included several reasons why their child needed to attend the School. The School’s case stated its difficulties in accommodating another child. The Clerk’s notes gave the reason for the decision to dismiss the appeal as ‘full at 30 in Year 5’. More detailed reasoning was given in the decision letter, but this was not reflected in the Clerk’s notes of the panel’s discussion.
27. We found there were 34 children, not 30 on roll in Year 5 at the time of the appeal and this cast doubt whether the panel properly considered the two opposing cases. The admission of the 34th child also weakened the case that the class was full at 30. Without evidence in the Clerk’s notes that showed the panel had balanced the two competing cases as required, we could not say it had acted properly and we found the School at fault.
28. The School agreed it would hold a new appeal to remedy the injustice caused.

The second appeal

29. The School held a further appeal in July 2020 with a fresh panel and clerk provided by the Council. The appeal was delayed due to Covid-19 and held virtually.
30. The School’s case was again that it was ‘full to PAN at year 5’ and admitting an extra child would prejudice efficient education and efficient use of resources.
31. Mr X’s case referred to the previous Ombudsman decision and that the School had previously admitted 34 pupils on roll, although at the time of the appeal there were 33. Mr X’s case was that the School had previously coped with 34 pupils. Mr X also explained the impact of his wife’s health condition on walking the longer distance to the allocated school.
32. The Clerk’s notes show that the Admissions Authority Representative ‘confirmed to the parent the legal position that a further pupil could not be admitted over the PAN unless it was a permitted exception or a successful admission appeal. As such the number of pupils would need to drop to 29 or below to (sic) his son to be admitted’.
33. The Clerk’s notes show the panel found:
• At the first stage the admission arrangements had been correctly applied and that admission of additional children would cause prejudice to the School.
• At the second stage the panel felt the parents would need to drive to both schools and the child was fine at the allocated school. The panel felt the previous Ombudsman finding had no bearing on the current appeal which should be treated as a fresh appeal. The ‘Panel considered that they managed with 34 and are now at 33 but legislation sets out the number would need to go below 30 for another pupil to be admitted unless a permitted exception’. The Panel did not consider the case was strong enough to outweigh the prejudice to the School.
34. The decision letter referred to the opposing cases and stated the panel considered the distance between the allocated and preferred school, Mrs X’s illness and the requirement to drive. It also considered the class now has 33 pupils when it had previously had 34. The decision letter stated the panel had decided Mr X’s grounds did not outweigh the prejudice to the School. The decision letter made no mention of the advice given to the panel about exceeding 30 pupils.

Analysis

Fault

35. Schools that act as their own admissions authority carry full responsibility for the actions of those bodies they commission to act on their behalf. This means the School is responsible for the way the Council conducted the appeal on its behalf.
36. The Admission Authority Representative told the Panel that legislation prevented the School admitting more than 30 pupils to the class and that the number on roll would need to fall to 29 before Mr X’s child could be legally admitted. This was fault. The Representative was referring to the legislation on infant class sizes, this was not an appeal for an infant class but for year 5 and that legislation did not apply. Admission Authorities can admit above the PAN.
37. The Clerk’s notes show the panel accepted this incorrect advice and relied on it when reaching its decision. This was fault and casts doubt on whether panel members had received adequate training in the relevant law.
38. The incorrect advice meant the Panel did not go on to discuss why a 34th child could not be admitted when it found the School had previously managed with 34 children. This is a repeat of the fault we found in our previous investigation and again casts doubt on the decision reached.
39. As we found fault with the actions of the Council that held the appeal on the School Admission Authority’s behalf, we have made recommendations to the School Governors who carry responsibility for these actions.

Injustice

40. The misdirection of the panel and the panel member’s failure to challenge the incorrect advice have caused Mr X uncertainty about whether his appeal may have been decided differently if the correct law and guidance had been applied.
41. It is very disappointing that despite the previous Ombudsman finding the Ombudsman must now ask for Mr X’s appeal to be considered a third time.

Agreed action

42. Following issue of my draft decision, Mr X has been offered a fresh appeal to take place on 21 December 2020. The Ombudsman welcomes this offer which is a suitable remedy for the injustice caused.
43. Within four weeks of my final decision the School will apologise to Mr X for the failings identified and for which it remains responsible.
44. Within two months of my final decision, I recommend the School ensure panel members and clerks conducting appeals on its behalf have received refresher training.

Back to top

Final decision

45. There was fault in the way an appeal panel considered an application for a school place in that it incorrectly applied law relating to infant class sizes to an application for a place in year 5. This casts doubt on the decision the panel reached. Recommendations for an apology, fresh appeal and service improvements are made.

Back to top

Investigator's decision on behalf of the Ombudsman