Summary: We will not investigate Miss X’s complaint that the Council’s Schools Admissions Appeal Panel failed to provide her child with a place at their 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 Miss X, says the Council’s Schools Admissions Appeal Panel did not properly consider her appeal for a place for her child, D, at School Y.

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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”.

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How I considered this complaint

5. I considered information provided by Miss X and the Council which included the appeal papers.
6. I considered the Ombudsman’s Assessment Code.
7. I considered Miss X’s comments on my draft decision.

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My assessment

Background information

8. Miss X applied on time for a place for her child, D, to start in September 2021 in reception. An elder extended family member, who is not part of their household, attends there. D had attended the attached nursery.
9. All the 30 places for September 2021 in reception were allocated under the published admission criteria. The last place went to an applicant who was in a higher category than Miss X’s application and closer to the school than she is. Miss X was offered a place at her catchment school, which is around 100 yards from her home. She turned this down.
10. Miss X appealed the decision not to award a place at School Y for D, to an Independent Appeal Panel. It considered the case in June 2020 by tele conference. Miss X told the Appeal Panel that:
• D had attended the attached nursery and does not like change;
• She had to pick up a family member from School Y and could not do so if D was at another school;
• D was unhappy at not getting a place at School Y;
• The family member was unhappy and unsettled by D not getting a place at School Y. This child is cared for by their grandparent under a Special Guardianship Order and Miss X says has had a harder time than most children already.
11. The Appeal Panel refused Miss X’s appeal and she complained to us. She says:
• Her health is being affected by not getting a place at School Y;
• D’s behaviour had deteriorated since being told they could not go to School Y.

Analysis

The appeals panel’s and Ombudsman’s role

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 Panel decides the reasons for granting a place on appeal have been met, then that extra child becomes an ‘excepted’ child for the infant class size rules. It means the school can go over 30 and not breach the law.
16. 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

17. The Council clearly told Miss X before the appeal the place had been refused because of the Infant Class Size rules. It also clearly explained what this meant.
18. The Appeal Panel decided that admitting another child would breach the infant class limit for the school year 2021/22. There will be 31 pupils per teacher in reception as one child met the excepted criteria. A school can only admit more than 30 pupils per teacher if the extra pupils are classified as excepted pupils. D does not meet the criteria as an excepted pupil.
19. The Appeal Panel considered the admission arrangements and decided they complied with the law.
20. The Appeal Panel was also satisfied that the admission arrangements had been properly applied in this case. The family member at the school is not part of Miss X’s household and therefore does not count under the criteria for siblings and other family members.
21. Having a nursery place is not part of the admissions criteria. And plays no part in deciding if a child should have a place in reception. If you have a place in the nursery it does not mean you have a place at the school from Reception.
22. The Appeal Panel’s decision letter records the reasons Miss X presented at the Appeal Panel for wanting a place. It is clear the Appeal Panel considered Miss X’s reasons for wanting a place and decided the decision to refuse a place was one which a reasonable authority would have made in the circumstances and in light of the admission arrangements.
23. It is unlikely we would find fault in the Appeal Panel’s decision. The information I have seen supports the Appeal Panel’s decision.

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Final decision

24. The Ombudsman will not investigate this complaint. This is because it is unlikely we would find fault.

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Investigator's decision on behalf of the Ombudsman