Summary: The Ombudsman will not investigate Mr X’s complaint that the Council’s Schools Admissions Appeal Panel failed to provide his child with a place at his preferred school. It is unlikely the Ombudsman would find fault which caused them to lose out on a school place.

The complaint

1. The complainant, whom I shall call Mr X, says the Council’s Schools Admissions Appeal Panel did not properly consider his appeal for a place for his child, Z for a place at School W.

Back to top

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 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), as amended)
3. 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 or continue with an investigation if we believe:
• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended)
4. 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 the Council followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during COVID-19”.

Back to top

How I considered this complaint

5. I considered the information Mr X provided with his complaint. The Council provided me with the notes from the Appeal Panel hearing, the documents the Appeal Panel had and its decision letter. I considered Mr X’s comments on a draft version of this decision.

Back to top

What I found

Background information

6. Mr X applied for his child, Z, to have a place at School W in January 2020 but it was full. He reapplied in August 2020 for a place in Year Two from September 2020. It was still full. The Council rejected the application and told him it had to do so because of ‘infant class size rules’.
7. Mr X appealed the decision to the Council’s school independent appeal panel. He said:
• Z had been attacked at their previous school, School Y, and the family were dissatisfied with School Y’s response. They did not believe it was safe for Z to continue there. They had removed Z from School Y and elected to home educate.
• The classes at School W were under the infant class size limit.
• He wanted a faith school for his child.
• The Council had offered a place at School B, which Z had attended before. Mr X said it was too far away and they did not like it. Mr X says he felt School B had some serious problems and it was not a faith school.
• Z should have been considered under the Fair Access Protocol.
8. An independent appeal panel heard his appeal in October 2020 by video link.
9. The appeal panel decided not to award Z a place. Mr X disagreed and complained to the Ombudsman.
10. Mr X says the appeal panel did not properly consider his case. He says the Council was wrong to say it was an infant class size decision. He says the Appeal Panel decision letter does not cover his statement he read to the Appeal Panel.

Analysis

The appeal panel’s and our role

11. In April 2020, the government introduced temporary changes to the regulations about holding school appeals. These said that where face-to-face appeals cannot take place safely, hearings can be conducted by telephone or video conference. To hold a remote hearing, the panel has to be satisfied that: 
• Everybody can fully present their case; 
• each participant can access a video or telephone allowing them to be part of the hearing throughout; and 
• the appeal can be heard fairly and transparently. 
12. 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.
13. 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.
14. 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 in light of the admission arrangements.
15. If the application is not an infant class size case then the panel must consider whether the:
• admission arrangements comply with the law;
• admission arrangements were properly applied to the case; and
• admission of another child would prejudice the education of others.
16. If the panel finds there would be prejudice the panel must then consider each appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal. This means it can say a school is full but decide a child’s case is so compelling that it is more important to admit that child than prevent the effects to a school by having one more child.
17. We cannot question the decision if it has been properly taken. If the Panel has been properly informed, and used the correct procedure, then it is entitled to come to its own judgment about the evidence it hears.

The appeal in this complaint

18. School W has less than 30 pupils per teacher in its infant classes. This means it is not an infant class size decision to refuse a place. The Council said it was in its letter rejecting Mr X’s application. However, it made it very clear in emails before the Appeal that this was wrong, and the Appeal would be heard on the non-infant class size rules. Any fault in the original application refusal letter has not caused Mr X any significant injustice.
19. The Council also erred in calling the appeal a year one appeal in the first bundle of documents it sent to Mr X for the appeal. It corrected this with an amended bundle sent to Mr X in advance of the appeal. Any fault here has not caused any significant injustice to Mr X.
20. Mr X’s case does not qualify for the Council’s special fair access protocol rules. These rules apply to hard to place children. The rules specifically say a child does not qualify if there is a ‘suitable’ school offer within five miles of their home. The Council had offered a mainstream school within five miles. The school does not have to be one which Mr X prefers for it to qualify as ‘suitable’.
21. The Appeal Panel considered the admission arrangements and decided they complied with the law.
22. The Appeal Panel was also satisfied that the admission arrangements had been properly applied in this case.
23. The Appeal Panel’s decision letter records a summary of the reasons Mr X presented at the Appeal Panel for wanting a place. It is unlikely we would conclude the decision letter breaches the Appeals Code. It is clear the Appeal Panel considered Mr X’s reasons for wanting a place and decided they did not outweigh the problems caused to the school by admitting another pupil.
24. It is unlikely we would find fault in the Appeal Panel’s decision that Z should not have a place at School W based on the information I have seen.

Back to top

Final decision

25. The Ombudsman will not investigate this complaint. This is because it is unlikely we would find fault which caused Mr X to lose out on a place at School W.

Back to top

Investigator's decision on behalf of the Ombudsman