Decision : Closed after initial enquiries
Decision date : 04 Dec 2020
The Ombudsman's final decision:
Summary: A parent complained about the admission appeal panel’s decision to refuse his appeal about a place for his daughter at his preferred primary school. But we do not have reason to investigate the complaint. This is because there is no sign of fault in the way the panel dealt with the appeal which caused the parent an injustice.
The Ombudsman’s role and powers
- 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)
- 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))
How I considered this complaint
- I considered the information Mr B provided with his complaint, his initial comments when we spoke on the telephone, and his further comments in response to a draft of this decision. In addition I took account of documents from the Council about Mr B’s appeal and information it provided about the admission of an extra child.
What I found
- C was due to start school in the Reception year this September.
- Mr B wanted C to go to the School. This was because it is very close to the family home, C’s siblings were already going there, and C had also been attending the School’s nursery.
- However Mr B missed the deadline for applications. Mr B said he has a disability which makes him forgetful, and the nursery did not remind him about applying. Mr B also thought C would automatically move from the nursery into Reception.
- By the time Mr B put in his application all the places in the Reception year at the School had already been taken, so C was refused admission. Instead the Council offered C a place at another local school.
- Mr B appealed about the refusal of a place for C at the School. But the independent appeal panel turned down his appeal. Mr B then complained to the Ombudsman.
- 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.
- Because Mr B had applied for a place in the Reception year, his appeal was heard under the infant class size rules
- The School’s admission number is 60 with the Reception year split into two classes of 30 children.
- At the appeal hearing the Council confirmed there were now 61 children in the Reception year because Child X had been admitted a few days previously. The Council explained that Child X was a ‘looked after’ child, and looked after children are one of the exceptions to the limit of 30 in an infant class.
- The panel decided that giving a place to C, making 31 in each Reception class, would mean that the infant class size limit would be breached. The panel also concluded that the School’s admission arrangements were lawful and had been correctly applied in C’s case.
- From the records of what was presented to the panel about these matters, I suggest it had good reason to reach those views. C would have been given a place if Mr B had applied on time as she would have had priority based on having siblings at the School. But Mr B’s application was correctly assessed as being late, by which time all the places had been taken.
- Mr B took part in the appeal hearing and presented his case by telephone link. Mr B’s appeal case related mainly to his family’s existing close connections with the School and C’s distress about not being able to join her siblings there. Mr B also pointed out that C had special needs which the School was already aware of because of her attendance at the nursery. In addition Mr B spoke about his disability and the great difficulty he would have in getting his children to and from their different schools on time if C had to go to another school.
- Mr B felt he had a very strong case for C to be given a place at the School, so he was understandably disappointed by the panel’s decision. But from the information provided I am not convinced there is sign of fault in the way the panel considered and decided his appeal.
- Mr B was particularly upset that the panel turned down his appeal when the School’s representative at the hearing said the School was happy to give C a place. But I do not see we would have grounds to fault the panel in this respect.
- First, the statutory School Admission Appeals Code is clear that “Panels must not allow representatives of schools to support individual appeals for places at their school at the hearing itself….” Second, I do not see that the panel could have upheld an appeal in the knowledge that this would allow the School and the Council to breach the law on the size of infant classes.
- Mr B also felt that a particular panel member was biased against him. But from the clerk’s notes of the hearing I do not see sign of any biased or discriminatory behaviour. I also note that all three panel members voted to refuse the appeal, and I do not see evidence that any one member had undue influence on the panel’s decision-making. In addition I note the panel commented in its decision-making that it was extremely sympathetic with the parents’ circumstances.
- I also consider that the appeal clerk’s record of proceedings at the hearing and the decision-making, and the panel’s decision letter, indicate that panel members noted and understood the points Mr B put forward in his appeal case, and took these into account in reaching their conclusions.
- But at the end of the day the panel was entitled to reach its own view about the information it received from both sides at the appeal and, in doing so, it had to apply the strict rules required by law concerning the size of infant classes.
- In particular, having accepted the Council’s case on infant class size prejudice and that the admission arrangements had been correctly applied, the panel could only uphold Mr B’s appeal if it concluded the Council’s decision to refuse a place 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.
- In addition, the panel could only look at whether the original refusal decision was reasonable based on the information available to the Council at that time. That meant it had little scope to give weight to any new information Mr B presented at the appeal about his current difficult family circumstances.
- Mr B questions why Child X was given a place ahead of C when she was first on the School’s waiting list at the time, and he suggests he may have been unfairly discriminated against in this respect. But I am not convinced Mr B has been disadvantaged by Child X’s admission or that there is evidence of discrimination.
- I do not know the exact circumstances in which Child X was admitted to the School. But it is evident that Child X is a looked after child and that looked after children are one of the legal exceptions which allow schools to go above 30 in an infant class. However C does not meet any of the statutory criteria regarding excepted children, so the normal rules limiting the size of infant classes continued to apply in her case.
- Therefore I do not see we could say the admission of Child X made any significant difference to the appeal panel’s decision about infant class size prejudice in C’s case. Whether there were 60 or 61 children in the Reception year at the time of Mr B’s appeal, the panel would still have been entitled to find that the legal limit on numbers in an infant class would be exceeded if she was given a place.
- Mr B was also unhappy because the Council would not give C a place at the School when another child left the Reception year soon after his appeal. But there were still 60 in the year group at that point, so the Council still could not allocate a place without breaching the infant class rules.
- In any case, even if there was some irregularity with Child X’s earlier admission and the child should have just been placed on the waiting list instead, I do not see this would have benefitted Mr B when another child subsequently left the School.
- That is because Child X would have gone ahead of C on the School’s waiting list as looked after children have the highest priority under the Council’s admission arrangements. Therefore the spare place would still have been allocated to Child X as the child at the top of the waiting list. In the circumstances I consider the outcome for Mr B would have been the same whichever way the Council had dealt with Child X’s application.
- We do not have grounds to start an investigation of Mr B’s complaint about the way the admission appeal panel dealt with his appeal regarding a place for his daughter at his preferred primary school. This is because there is no sign of fault by the appeal panel which has caused Mr B an injustice to warrant our further involvement in his case.
Investigator's decision on behalf of the Ombudsman