Summary: The Council was not at fault when it decided to withhold a letter written by a school for a school admissions appeal hearing. This is because the School Admissions Appeal Code is clear that schools cannot support individual cases. In the absence of procedural fault, we cannot question the merits of the panel’s decision to refuse the appeal.

The complaint

1. Mrs Y complains about a school admissions appeal hearing for her daughter, whom I will call T. She says the Council withheld important and relevant information provided by the school about its capacity to admit additional children. Mrs Y says this impacted on the panel’s ability to consider and weigh-up all available information in order to make a fair and robust decision.
2. Mrs Y says this fault has created uncertainty because she cannot be sure the panel made the correct decision in T’s case.

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The Ombudsman’s role and powers

3. 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 an independent 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)
4. If we are 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

5. During my investigation I discussed the complaint with Mrs Y and made enquiries of the Council to obtain the appeal paperwork, including Mrs Y’s submissions, the Clerk’s notes and the Council’s refusal letter.
6. I consulted the relevant law and guidance around school admissions and school admission appeals, which I have cited where relevant in this statement.
7. I put my provisional findings in a draft decision and gave the Council and Mrs Y the opportunity to comment. I considered the comments received before issuing a final decision statement.

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What I found

What should happen

School Admissions and School Admissions Appeal Code

8. The Department for Education issues statutory guidance about school admissions and appeals in The School Admissions Code and The School Admission Appeals Code. Admission authorities and appeal panels have a statutory duty to comply with these Codes. Where the Codes impose compulsory requirements, or refer to requirements in legislation, they use the words “must” or “must not”.
9. The School Admissions Code 2014, issued under Section 84 of the School Standards and Framework Act 1998, was the relevant Code in force for September 2021 admissions. This Code sets out the duties of admissions authorities. The School Admission Appeals Code 2012, issued under the same Section of the Act, sets out the duties of appeal panels.
10. Paragraph 2.9 of the School Admission Appeal Code 2012 states:

“The admission authority must supply the clerk to the appeal panel with all relevant documents needed to conduct the hearing in a fair and transparent manner and in accordance with the specified timetable. This must include details of how the admission arrangements and the co-ordinated admissions scheme apply to the appellant’s application, the reasons for the decision to refuse admission and an explanation as to how admission of an additional child would cause prejudice to the provision of efficient education or efficient use of resources”

11. Paragraph 2.13 goes on to say:

“Panels must not allow representatives of schools to support individual appeals for places at their school at the hearing itself, or by providing letters of support for appellants. Such support could create conflicts of interest and unfairness to other appellants”

12. The Code also reiterates that, “Appeal panels must operate according to the principles of natural justice. Those most directly relevant to appeals are:
1. members of the panel must not have a vested interest in the outcome, or any involvement in an earlier stage, of the proceedings;
2. each side must be given the opportunity to state their case without unreasonable interruption; and
3. written material and evidence must have been seen by all the parties”.

Appeal hearings

13. Independent appeal panels must follow the law when considering an appeal. The law says the panel must consider whether:
• the admission arrangements comply with the law;
• the admission arrangements were properly applied to the case.
14. The panel must then consider whether admitting another child would prejudice the education of others. If the panel finds there would be prejudice it must then consider each appellant’s individual arguments at the second stage of the appeal hearing. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal and allocate a place to the child.

What happened

15. Mrs Y made an on-time application to the Council for her daughter, whom I will call T, to start reception in September 2021 at a local school. I will refer to it as ‘the school’. Although the school is not T’s catchment school, she has an older sibling in attendance and so was placed into over-subscription criterion five: out of catchment with sibling.
16. The school’s published admission number (PAN) is 12. The Council, who is the Admissions Authority (AA) for the school, received 38 preferences for reception places. Due to there being more applications than places available, the Council allocated places in accordance with the over-subscription criteria. Those who were not offered places were put onto the school’s waiting list and given the right to appeal.
17. The Council, in agreement with the school, decided to offer six places over the PAN. This is because both the Council and the school agreed it was necessary to admit all applicants who lived within the catchment area.
18. Mrs Y’s application was not successful because the Council could not offer places to any children outside of the school’s catchment. The Council instead offered Mrs Y a place at T’s catchment school. Mrs Y decided to appeal for the school because she wanted T to attend the same school as her older sibling. In total, six families appealed for reception places the school.
19. As the AA for the school, the Council presents the appeals on their behalf. Before the hearing, the school’s headteacher submitted a letter to the Council to be included within the appeal paperwork. In summary, the letter said:
• The school supported the admission of all six reception children.
• The information provided by the Council regarding the school’s capacity was “flawed and inaccurate”.
• The school would accept all six appellants, including T, because the admission of additional children would not cause prejudice to the efficient education or use of resources for those already in attendance.
• The Council has failed to consider the class organisation, accommodation or capacity and the resources available to the school. The Council has not visited the school ahead of the appeal to assess the capacity in person.
• The suggestion that the admission of six additional children would cause ‘overcrowding’ is “frankly ridiculous and reflects the lack of understanding shown by the local authority of our particular circumstances”
• In its submission, the Council accepts the school has a fourth classroom available but fails to acknowledge it has been in use for eight years. The classroom will be in use from September which means the school has “more than enough” capacity for the six appellants. The school says it is financially stable despite running the extra classroom.
• The school has submitted a ‘forward plan’ to the Council showing the class structure, which includes the six families appealing. The Council has failed to include this in the appeal paperwork.
• The school also has a playgroup class, with staffing and finance managed in the same way.
• The Council’s submission wrongly states the school’s capacity is 90 children, whereas the capacity as defined by the Department for Education (DfE) is 105.
20. The Council decided not to include the school’s letter within the appeal paperwork because it said to do so would be in breach of paragraph 2.13 of the School Admissions Appeal Code.
21. The virtual appeal hearing went ahead in July 2021, and Mrs Y attended by conference call. At the first stage of the hearing the panel listened to the AA’s case before deciding whether the admission of six additional pupils would prejudice the education of those already attending from September. In summary, the AA made the following key points:
• The school is already over its PAN. The Council allocated places using the published over-subscription criteria. The Council agreed with the school to admit all ‘rural catchment’ children. The reception intake is now six pupils over the PAN. The appeals being heard today are for children who live outside of the school’s catchment area. There are sufficient places available at their catchment schools.
• The school has no flexibility with accommodation or resources to support any further pupils. To further exceed the PAN will cause prejudice and significantly impact on the school’s ability to meet their pupil’s needs, including access to resources, staff time, pressure on accommodation, increased pupil and teacher ratio and an overall impact on the quality of education.
• The AA is concerned about ‘future prejudice’ resulting from any further admissions as classes move through the school.
• The net capacity of the school is set by the Council acting as the AA. It is a small rural school with three classes. Although a fourth classroom is available through the school’s self-funding, the AA does not consider it is necessary to bring the classroom into “formal use” at this time.
• The AA is concerned about the school operating as a four-class primary school because these schools would usually have 120 pupils on roll and funded to that level. The school is around 20 short of this figure, and its budget is under pressure.
• The AA suspects the headteacher supports the appeals because of concerns about the older siblings leaving if the appeals fail.
• The AA has received information that 370 new houses are proposed in the school’s catchment area, and it is concerned that admitting children from outside catchment would reduce the school’s ability to accept those living in catchment in the future.
• The school is expecting 95 children on roll from September. The AA feels it is unreasonable to further exceed the admission number at the school and to do so would not be an efficient use of resources.
• The capacity of the reception class is 25 pupils, but issues remain about managing a larger cohort in the following seven years. The headteacher says the school can cater for this, but the AA request the appeals to be dismissed.
22. The Clerk’s notes then show some questioning from the parents. One parent referred to the letter written by the school, but the AA said it was for the Council to decide what to include within their presentation and the letter of support was inadmissible under paragraph 2.13 of the Code.
23. Another parent then questioned the AA about the school’s net capacity. The AA explained it is 90 as per DfE paperwork, but the parent said information online states the capacity is 105.
24. The panel deliberated in private and unanimously decided that to admit additional pupils would prejudice the efficient provision of education and resources. The hearing proceeded to stage two, and Mrs Y presented her case:
• T is a part of the school’s community and has two older sisters; one currently in attendance and another who left the school last year.
• Mrs Y used to live in the school’s catchment area but had to flee the family home due to the behaviour of her ex-husband. The school supported the family and provided therapy to her daughters during this traumatic time.
• Mrs Y’s ex-husband lived nearby and can help with school drop offs and collections.
• The school and its pupils will continue to thrive despite being over-subscribed due to the good management of the headteacher.
• T is settled at the playgroup. Mrs Y has concerns about moving the sisters to a different school.
• Mrs Y would have to reduce her hours of work if T cannot attend the school.
25. After considering Mrs Y’s case, the Clerk’s notes show the panel unanimously decided to refuse admission because, “no overriding education, social, medical or other reasons”. The refusal letter issued to Mrs Y after the appeal provided further information about the panel’s decision and noted there were spaces available at T’s catchment school.

Was there fault by the Council causing injustice to Mrs Y and T?

26. When investigating complaints about a school admissions appeal, the LGSCO usually considers the actions of the independent panel to determine whether they acted in accordance with the regulations and the Code. This is because panel members are the decision makers, and any procedural fault in a hearing may create doubt about their decision. If we find fault has created injustice in the form of uncertainty, we may ask the Council to arrange a fresh appeal with a panel and Clerk who were not previously involved in the original decision.
27. In this case, the Ombudsman finds no fault with the panel itself. It made a decision based on the information which the AA provided. It also properly considered the information submitted by Mrs Y. As well as the panel, the Ombudsman can also consider the actions of the Council, acting as the AA, when preparing and presenting the appeal.
28. This case centres on the AA’s decision to exclude the headteacher’s letter. We have impartially considered whether the AA was entitled to do so under paragraph 2.13 of the School Admissions Appeal Code. After carefully considering the available information, including the school’s letter, it is my view that the purpose of the letter was to support the appellants. This is clear from the second sentence of the letter, which reads, “I wish to formally state that the school fully supports all these applications…”.
29. I am mindful the Code is not only concerned with the purpose of the letter, but also the effect of any such letter. This is because the Code says that letters of support could create “…conflicts of interests and unfairness to other appellants”. In response to the first draft decision issued in this case, the Council explained that two other appeals for different year groups were heard for the school on that day. The letter refers to the six reception cases only. As the future capacity of the school was likely to be a relevant consideration for all eight cases, it therefore follows that the headteacher’s letter could have created unfairness or disadvantage for any other appellants who did not have the benefit of the school’s support.
30. I have also considered Mrs Y’s point about the disputed capacity numbers and the panel’s ability to arrive at a fair decision based on correct information. Although there was some disagreement about the school’s capacity, the LGSCO notes that the AA, rather than the school, is responsible for assessing the official net capacity figure. The AA is then obliged to share the assessed net capacity with the Department for Education under section 29(1) of the Education Act 1996. I am mindful the website referred to by the school and Mrs Y can be amended by the school. Therefore, whilst the school may have a different view about their capacity, the official net capacity is assessed and set by the AA. It was not fault for the panel to make their decision based on the AA’s submission.
31. For the reasons explained in the paragraphs above, the Council was entitled to apply paragraph 2.13 of the Code and did so without procedural fault. We therefore have no grounds to recommend a fresh appeal for T.

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Final decision

32. We have completed our investigation with a finding of no fault for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman