Summary: A parent complained about the admission appeal panel’s decision to turn down his appeal about the refusal of a place for his daughter at his preferred primary school. He also complained about the Council’s refusal to reconsider his application following the Schools Adjudicator’s decision to partially uphold an objection to its admission arrangements. But we do not have reason to investigate these matters because there is no sign of fault by the Council or the panel which has caused the parent a significant injustice.

The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

3. We cannot question whether a school admission appeal 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. (Local Government Act 1974, section 34(3))

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How I considered this complaint

4. I considered the information Mr B provided with his complaint, and his comments in response to a draft version of this decision. I also took account of the Schools Adjudicator’s decision and documents from the Council about Mr B’s appeal.

The Council’s admission arrangements and the Schools Adjudicator

5. In 2019 the Council decided to change its admission arrangements to take effect in the 2020-2021 school year. Previously the Council had given fourth priority in its oversubscription criteria to children with siblings already attending the school in question. The new arrangements kept sibling priority, but introduced an exclusion where a family had changed address since their first child was admitted and now lived over a mile from the school.
6. The Schools Adjudicator considers objections to authorities’ admission arrangements and decides if those arrangements comply with the statutory School Admissions Code and other relevant legislation. The Adjudicator’s decisions are binding on the authority.
7. Earlier this year a parent sent an objection to the Schools Adjudicator saying that the Council’s new sibling criterion was unlawful and unfair. The Adjudicator subsequently issued a decision partly upholding the objection.
8. First, the Adjudicator decided not to consider the parent’s objection in respect of the 2020/2021 arrangements as the deadline for raising objections for that year had already passed.
9. As regards the arrangements for 2021/2022, the Adjudicator found that it was reasonable for the Council to prioritise children living closest to a school above those who had moved some distance away, even if they had a sibling there. But the Adjudicator also decided it was not reasonable to remove sibling priority for those who move closer to the school but still live over a mile away. The Adjudicator ordered the Council to amend its arrangements by 28 February 2021.

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Mr B’s application

10. C started at school in the Reception year this September.
11. Mr B lives outside the Council’s area. But when he applied for a school place last year he put the School down as his first preference as C’s sister (‘D’) was already going there.
12. However Mr B’s application for the School was refused because all the places there went to children with a higher priority than C under the Council’s admission priorities. In particular the successful children qualified under the criterion regarding siblings or lived closer to the School than C did.
13. At the time D was given a place at the School Mr B was living at an address in the Council’s area. However he later moved to his current address, which is further from the School and more than a mile from it. Therefore C did not qualify under the new sibling criterion.
14. Mr B appealed about the refusal of a place for C at the School. However the independent appeal panel turned down his appeal.

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Analysis

15. Appeal panels must follow the law when considering an appeal. In particular the law says the size of an infant class must not be more than 30 pupils per teacher, with very limited exceptions. In 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, and were properly applied to the case;
• the decision to refuse a place was one which a reasonable authority would have made in the circumstances.

What is ‘reasonable’ is a high test. To uphold an appeal on this ground the panel would need to be sure that the decision to refuse a place was “perverse” or “outrageous”. For that reason, panels in infant class appeals rarely find an admission authority’s decision to be unreasonable.

16. Mr B had applied for a place for C in the Reception year, so his appeal was heard under the infant class size rules.
17. The School’s admission number in Reception is 150, with children divided into five classes of 30. At the appeal hearing the Council confirmed that all 150 places had been filled. In the circumstances the panel decided the infant class size limit would be exceeded in one of the classes if C was also given a place.
18. From the records of what the Council presented to the panel in this respect, it seems to me the panel had good reason to reach that conclusion.

19. Mr B’s appeal case rested partly on his view that the Council’s recently changed oversubscription criterion regarding siblings was unlawful. Mr B considered the Council should reinstate its previous sibling criterion with no exclusions. However the panel decided that the Council’s arrangements complied with the law and had been correctly applied in C’s case.
20. Mr B felt the panel should have reached the same view that the Schools Adjudicator subsequently reached and, therefore, should have found that the admission arrangements did not comply with the law. But I am not convinced we would have reason to fault the panel on that basis. In particular I do not see that the panel should necessarily have been expected to anticipate the Schools Adjudicator’s subsequent findings. In addition it was the Adjudicator’s role to give detailed scrutiny to the lawfulness of the arrangements and make a binding ruling, whereas appeal panels have a more limited remit in this respect.
21. Further, even if the panel taken the same view as the Adjudicator I do not see that this would have benefited Mr B. In particular, where a panel concludes the admission arrangements do not comply with admissions law it can only uphold the appeal if it can also conclude that the child would have been offered a place if the arrangements had complied. But C would still not have qualified for a place under the amended sibling criterion the Adjudicator is now requiring.
22. The other main issue Mr B raised in his appeal case related to the medical conditions suffered by members of his family which meant it was not advisable to move D to a school nearer home. Mr B also referred to the difficulties the family would face in managing the school run unless both C and D went to the School.
23. Mr B felt he had made a compelling case for C to be given a place at the School so he was understandably disappointed by the panel’s decision. However from the information provided I am not convinced there is sign of fault in the way the panel decided matters in his case.
24. In particular, I consider the appeal clerk’s record of proceedings at the hearing and the panel’s decision making, and the appeal decision letter, indicate that panel members noted and understood the main points Mr B presented in his appeal case, and took these into account in reaching their view. I also see no reason to doubt the panel had considered the documents Mr B had provided. In addition, it is evident that Mr B was given a reasonable opportunity to make his case and that panel members further explored the issues with him in their questions on the day.
25. But ultimately the panel was entitled to reach its own view about the information it read and heard from both sides at the appeal. In addition, the panel had to apply the strict rules required by law concerning the size of infant classes. For example, in considering the reasonableness of the Council’s original admission decision the panel had to focus on the information that was available to the Council at the time. In effect this meant it had little scope to give weight to any new information Mr B provided about his personal circumstances.
26. At the end of the day, having accepted there was infant class size prejudice and the admission arrangements were correctly applied, the panel could only uphold Mr B’s appeal if it concluded the Council’s decision to refuse admission was so unreasonable as to be perverse. But the threshold for finding a decision perverse is very high, and from the information provided I do not see we would have grounds to suggest there was fault in the way the panel reached its view about reasonableness in Mr B’s case.
27. Mr B felt the Council should nonetheless reconsider his application for the School and allow C a place there in the light of the Schools Adjudicator’s decision. But I do not see we would be justified in finding fault with the Council for refusing his request in this respect.
28. In particular, as indicated above, even if we were to take the view that decisions made under the Council’s admission arrangements for 2020/2021 are now questionable because of the Adjudicator’s subsequent decision, I do not see we could say that Mr B had suffered a significant injustice as a result. This is because C would still not have been given a place under the amended arrangements the Adjudicator is now requiring.

Final decision

29. We do not have grounds to start an investigation of Mr B’s complaint about the Council’s admission arrangements and the appeal panel’s rejection of his appeal for a place for his daughter at his preferred primary school. This is because there is no sign of fault by the Council or panel which has caused Mr B an injustice to warrant our further involvement in his case.

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Investigator's decision on behalf of the Ombudsman