Summary: The complainant, Mrs X, complained the Council failed to properly consider her application and appeal for a school place for her son. The Council says it followed the correct admissions and appeals procedures. Following the rejection of Mrs X’s appeal, the Council offered a place at the school. We found the Council acted with fault but did not cause an injustice.

The complaint

1. The complainant I shall refer to as Mrs X, complains the Council and school admissions appeal panel failed to properly consider her application and appeal for a school place for her son Y. Mrs X says at the appeal the panel interrupted her preventing her from getting her points across. Mrs X says the Council and appeal panel failed to properly consider the Head Teacher’s views. He said the school could admit up to ten more pupils than the published admissions number without prejudice to the education offered at the school.
2. Mrs X wanted the Council to review its decision and offer one of the available places to Y.
3. Since my investigation began the Council has offered a place to Y.

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The Ombudsman’s role and powers

4. 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)
5. If 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)

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How I considered this complaint

6. In considering this complaint I have:
• Spoken with Mrs X and read her complaint;
• Put enquiries to the Council and studied its response;
• Researched all relevant law, guidance, and policy.
7. I shared with Mrs X and the Council my draft decision. I have considered their comments received before reaching this my final decision.

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What I found

The law and guidance

8. The School Admissions Code governs how councils as the school admissions authority sets its admissions arrangements. The School Admissions Appeals Code regulates the conduct of appeal hearings. It sets out the expectation the panel chair will introduce the parties, outline how the hearing will be conducted, and that the Chair will ensure the parties have opportunities to state their case and ask questions.
9. Appeals are in two stages. The appeal panel will first consider if the admissions arrangements comply with the law and have been correctly and impartially applied. It decides whether admitting additional children above the school’s published admissions number ‘would prejudice the provision of efficient education or the efficient use of resources.’ Panel members must satisfy themselves on this point by asking questions and rigorously examining the school’s case. Once the panel decides the school is ‘full’ it moves onto the second stage and hears individual appeals. It must balance the prejudice to the school against the appellant’s case for admitting the child to the school.
10. The Code says, ‘each side must be given the opportunity to state their case without unreasonable interruption’.

What happened

11. Mrs X applied for a place for her son Y at a community school for which the Council is the admissions authority. The Council and school set the school’s published admissions number for Year 7 pupils at 140 for admissions between September 2021 and July 2022. The school then asked the Council to increase this to 150. The Council agreed to the school admitting 150 but says, when commenting on my draft decision that the published admissions number remained at 140. The Schools Admissions Code shows admitting more than the published admissions number does not constitute an increase to that number.
12. The Council says on national allocation day it admitted 150 pupils to the school using the oversubscription criteria which sets the order of priority for admitting children. Y does not live in the catchment area and so his application came under the sixth and final oversubscription criteria which is distance from the school. The last pupil admitted on national allocation day from outside the catchment area lived less than two miles from the school. Y lives over four miles from the school.
13. Mrs X appealed the decision. At the appeal the school’s Head Teacher told the appeal panel the school could admit up to 160 children. However, the appeal panel accepted the Council had made its case at stage 1 of the appeals procedure. It decided that admitting more pupils than the published admissions number of 140 would create problems for the school. Especially given the admissions authority had already admitted 12 more pupils before the appeals began. The appeal panel noted it did not have firm information about applicants’ special educational needs and this may put more pressure on the school if they admitted more than the published admissions number.
14. The appeal panel moved on to the individual appeals. Mrs X says the chair interrupted her when she presented her case and she felt uncomfortable and unable to present the case properly. In the appeal clerk’s notes there is no note of members interrupting Mrs X. When asked if it would help her if the panel asked questions the clerk’s notes record Mrs X as saying, ‘yes please’. The appeal clerk says they do not recall any interruptions or saw any evidence the appeal panel had been dismissive of Mrs X’s points. The Chair in his recollection of the appeal similarly believes Mrs X appeared able to present her case. The appeal panel refused the appeal. The Council placed Y on the school’s waiting list.
15. One appeal succeeded. Following the start of the new school year the school contacted the Council to ask if it could admit up to 155 pupils. The Council agreed and offered Y a place.

Analysis- was there fault leading to an injustice?

16. My role is to decide if the Council properly considered the application for a school place and the appeal panel properly considered the appeal in line with statutory guidance and advice. If it acted with fault I must decide if that caused an injustice and what the Council should do to put that right.
17. I have read the Clerk’s notes and considered the Clerk’s and Chair’s views on the conduct of the appeal panel. While the notes do not show interruptions Mrs X felt she had been prevented from getting her points across and that this may have led to a different decision. Appeal panels need to be open to the unequal balance of power within an appeal. For many appellants this is the first time they have had to present a case to a panel. They may feel reluctant to challenge the Chair or to say ‘no’ when asked if it would be helpful for members to ask questions during the appellant’s presentation for example. I can see no evidence the Chair or other appeal panel members intended to shut down Mrs X’s presentation or acted with fault. However, that is how Mrs X felt. That led her to wondering if but for that she may have made a more successful appeal on Y’s behalf.
18. The presentation to the appeal lacked clarity over the school’s ability to admit more than the published admissions number. This raised doubts about how the appeal panel tested the school’s case. The Council says the published admissions number remained at 140. By the appeal hearing this number had been exceeded and 152 pupils admitted. The appeal does not reassess capacity but must consider the impact of admitting more pupils. The Head Teacher believed the school could admit up to 160. Given the flexibility shown during the admissions stage which admitted twelve more pupils the appeal panel could have more robustly challenged the prejudice argument. After the Panel the school admitted five more pupils following the refusal of appeals. This caused Mrs X to doubt the robustness of the appeal panel’s probing into the likely impact of admitting more pupils.
19. Therefore, I find the Council and appeal panel at fault for the lack of clarity and not more rigorously testing the school’s case.
20. The school offered a place to Y after his unsuccessful appeal and so this fault did not cause an injustice. The decision to admit more pupils after the appeals means unsuccessful appellants had an opportunity for a place.

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Final decision

21. In completing my investigation, I find the Council acted with fault but did not cause a significant injustice to Y.

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Investigator's decision on behalf of the Ombudsman