Summary: the school admissions appeal panel failed to properly consider Miss B’s case for appeal and a panel member asked inappropriate questions. A new appeal is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained about the way an appeal panel considered her appeal for admission for her daughter to school B. Miss B complained the appeal panel:
• failed to consider all her grounds of appeal; and
• asked inappropriate questions.
2. Miss B says she has found the experience distressing and the decision has had a significant impact on her family.

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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 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)
4. When considering complaints about school admission appeals, we check the independent appeal panel followed the code of practice issued by the Department for Education and the hearing was fair. We do this by examining the notes taken by the clerk during the hearing. We do not have the power to overturn the panel’s decision and we cannot give the child a place at the school. If we find fault, which calls the panel’s decision into question, we may ask for a new appeal hearing.
5. 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

6. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

8. Independent school admission appeals 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. 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.
9. What is 'unreasonable' 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.
10. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.

What happened

11. Miss B has two children. Miss B’s son has special educational needs and an education, health and care plan. Miss B’s son was originally attending school A. However, as he was struggling to cope with the school his education, health and care plan was amended to name school B and he moved to that school in 2020.
12. When the Council allocated Miss B’s daughter a school in 2020 it did not allocate either school A or school B. Miss B appealed to both schools. School A granted Miss B’s daughter a place. However, Miss B found it difficult to take the children to two different schools, particularly when her son has special educational needs. Miss B therefore appealed for a place for her daughter at school B. That appeal was unsuccessful and is the decision complained of.

Analysis

13. Miss B says the appeal panel failed to consider all her grounds of appeal. Miss B is particularly concerned she was only given 30 minutes to address the panel hearing and does not believe panel properly considered her written representations.
14. I have considered the written information Miss B submitted in support of her appeal, the notes from the appeal panel hearing and the decision letter following the appeal. I am satisfied the appeal panel approached the first stage of the process properly. The notes kept by the clerk clearly state panel’s view it was satisfied the admission of Miss B’s daughter to the year group would result in a breach of the infant class size limit. In reaching that decision I am satisfied the panel referred to the elements of the school’s case which it found compelling. I am therefore satisfied the first stage was completed properly.
15. However, I am concerned about how the appeal panel dealt with the second part of the process. Miss B had put forward detailed reasons for her appeal in writing to panel and had expanded on some of those reasons for appeal during the hearing itself. I recognise the decision letter following the appeal refers to some of the reasons Miss B put forward. However, the letter failed to address important points relied on by Miss B, particularly relating to the impact on the family of having to transport the children to two different schools, the impact on the wraparound care arrangements for the children and the inability of the current arrangements to meet the needs of both children. The notes from the decision making part of the appeal panel also referred only to part of the parents case for the appeal. I am therefore not satisfied all the information relied on by Miss B in her appeal was considered by the panel. Instead panel appears to have relied largely on the reasons why Miss B’s son was attending a different school, the impact on Miss B’s daughter’s mental health of not being able to attend the same school and the difficulty the family would experience getting the children to two different schools on time. There is no reference in the decision letter, or the notes of the panel hearing, to the other arguments Miss B put forward about the impact on the family.
16. I have therefore concluded, on the balance of probability, the appeal process followed by Council was sufficiently defective as to remove Miss B’s right to a fair hearing of her case, notwithstanding the limited scope for a successful appeal. Failing to record relevant considerations and provide a proper analysis of her case during the decision making part of the hearing have created sufficient uncertainty about the panel’s decision-making to cause Miss B a personal injustice that should be remedied. As I am not satisfied the appeal was properly considered I recommended as remedy for the complaint the Council arrange another appeal panel, with different appeal panel members, to consider the case put forward by Miss B. The Council has agreed to my recommendation.
17. I also have some concerns about the questions posed by one of the panel members during the appeal hearing. Miss B was understandably distressed by the question which asked her whether she had prioritised her son’s needs above those of her daughter by moving her son to a different school. As Miss B points out, this was not a relevant consideration for panel to take into account in any event. Nor do I consider the way in which the question was worded is appropriate. The Council accepts that. The Council has advised it will address that point with the panel member in person and will ensure update training covers the Equality Act and discrimination. I consider that a reasonable outcome for this part of the complaint.

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Agreed action

18. The Council should arrange a fresh appeal for Miss B without delay. This should be with a different panel and should preferably take place within one month of my final decision.

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Final decision

19. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman