• The Ombudsman’s role and powers
• How I considered this complaint
• My assessment
• Final decision

The Ombudsman's final decision:

Summary: We do not have grounds to investigate this complaint from a parent about the school admission appeal panel’s decision in her son’s case. This is because there is not enough evidence of fault in the way the appeal panel dealt with matters.

The Ombudsman’s role and powers

1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We provide a free service, but must use public money carefully. We do not start an investigation if, for example, we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

1. I considered the information Mrs X provided with her complaint. I also considered the documents sent by the Council about Mrs X’s appeal and the appeal for the child who was given a place. In addition I gave Mrs X an opportunity to comment on a draft of this decision before I reached a final view in her case.

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My assessment

1. 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 in the current or in future years;
• 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”.

1. The School’s admission number in Reception this year is 45. At the appeal hearing the Council confirmed that all 45 places had been taken.
2. The panel then decided that the infant class size limit would be breached if Y was admitted as well. The panel also concluded the School’s admission arrangements were lawful and had been correctly applied in Y’s case.
3. Based on what I have seen about the information presented to the panel regarding these matters, I consider the panel was reasonably entitled to reach those decisions.
4. I note that the infant class size limit of 30 would not be breached this year because the Reception year from September will have two classes with 22 and 23 children respectively. But Year 1 and Year 2 children are taught together in three classes of 30. So I consider the panel was correct in concluding that admitting an additional child this year will mean the infant class limit is exceeded in future years as the new Reception class moves up.
5. Mrs X queried whether the school could take more children in view of recent building work to increase the School’s capacity by September 2021. However the panel noted that the School had already factored in the expansion by accepting five extra children when places were allocated in April 2021.
6. I also consider the panel was entitled to conclude that the Council correctly treated Mrs X’s application for a school place as late, which meant it was dealt with after all the on-time applications. In addition, the Council could not take account of Y’s attendance at the pre-school as this is not one of the criteria for admission to the Reception year.
7. Further, I consider that the appeal clerk’s records of the hearings and the panel’s decision letter in Mrs X’s case show that panel members noted and understood the points she made in her appeal statement. I do not see there is evidence to suggest the panel failed to take proper account of Mrs X’s case in reaching its decision.
8. In effect this meant the panel could only uphold Mrs X’s appeal if it concluded the Council’s refusal of a place for Y at the School 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 reason to say there was fault in the way the panel reached its view about reasonableness in Mrs X’s case.
9. Admission authorities are responsible for setting up admission appeal panels. But panels act entirely independently in deciding appeals. They must also consider each case separately on its own merits. Therefore panels do not decide appeals by comparing where appellants rank under the admissions criteria such as home to school distance.
10. Appeal panel decisions are also binding on the Council. So if a panel upholds an appeal, the Council has to give the child a place at the school in question, even if this means going above its normal admission number.
11. So at the end of the day the panel for the School’s appeals was entitled to reach its own view about each appeal it heard, taking account of the particular information provided by each appellant.
12. But as Mrs X complained about an appeal in another child’s case which was upheld, I also considered the records from the successful appeal. I note the Council presented the same case against a further admission as it did in Mrs X’s appeal. But this time the panel decided the reasonableness test was not met in view of the other child’s particular circumstances. However I do not see there was sign of fault in the panel’s decision-making about the other appeal, or that the decision indicates it was at fault in the way it decided Mrs X’s case.

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Final decision

1. We do not have reason to investigate Mrs X’s complaint about the appeal panel’s decision to refuse her appeal concerning a place for her son at her preferred primary school. This is because there is insufficient evidence of fault in the way the panel dealt with the appeal.

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Investigator's decision on behalf of the Ombudsman

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