Summary: The Ombudsman will not investigate Miss X’s complaint about an unsuccessful appeal for a school place. This is because while there was some fault by the Council and appeal panel, it was not significant enough for us to become involved. There is also not enough evidence of significant personal injustice to warrant an investigation.

The complaint

1. Miss X complains about an unsuccessful school admission appeal for her daughter.

Back to top

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 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)

Back to top

How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

Back to top

What I found

School admission appeals

5. Independent school admission appeal panels must follow the law when considering an appeal. There are two types of school admission appeals.

Infant class size appeals

6. 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, where admitting another child would mean there would be more than 30 pupils per teacher. 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.
7. What is ‘unreasonable’ is a high test, and for it to be met, the panel would need to be sure the decision to refuse a place was “perverse” or “outrageous”. For that reason, panels rarely find an admission authority’s decision to be unreasonable.

Two stage appeals

8. These apply to all other appeals – so those not governed by infant class size legislation. The panel needs to consider if the school’s admission arrangements comply with the law, and if they were properly applied to the appellant’s application. They need to decide if admitting a further child would “prejudice the provision of efficient education or the efficient use of resources”. If they think it would, they need to consider if an appellant’s arguments outweigh the prejudice to the school. These appeals are much more likely to succeed than an infant class size appeal.

Notifying appellants of their appeal hearing

9. Admission authorities must ensure appellants receive at least 10 school days’ notice of their appeal. Legislation passed due to the COVID-19 pandemic amended this to at least 14 calendar days’ written notice. Parents may waive this right.

What happened

10. Miss X applied for her daughter, Y, to start reception at her preferred school (School Z) in September 2021. Because there were more applications than places available, the Council used the school’s oversubscription criteria to decide which children it would offer places. It did not offer Y a place at School Z. It offered Y an alternative school place. Miss X appealed the decision not to offer Y a place at School Z.
11. In her written appeal Miss X said:
• The Council did not give her enough notice of the appeal. The Council only told her of the appeal on 30 June, despite the appeal being scheduled for 05 July.
• The Council had not taken into account her situation when considering her application.
• The Council originally told her she lived in School Z’s catchment area – but it now seemed this was not the case.
• The last child offered a place lived 0.441 miles from the school. Miss X lived 0.486 miles away and the distance was negligible. The Council’s decision to refuse admission was unreasonable.
• The school the Council offered Y was an unreasonable distance away.
• She needed Y to attend School Z as Y had attended the pre-school close to the school. A younger sibling also attended the pre-school and it was not possible for Miss X to walk Y to the school offered.
12. Miss X attended the appeal and was supported by a relative. The clerk’s notes show the Council presented its case and Miss X and the panel had the opportunity to ask questions. The Council said admitting a further child would breach the infant class size limit. The Council explained the school did not operate a catchment area for school admissions. Miss X presented her case and there were further opportunities for questions. After the panel’s deliberations the clerk wrote to Miss X to say her appeal had been unsuccessful.

Assessment

13. Based on the information I have seen there is evidence of fault by the Council and appeal panel.
14. Firstly, it seems the Council did not give Miss X enough notice of her appeal. But the papers I have seen show Miss X confirmed she was happy to proceed with her appeal. She therefore waived the normal notice period. Miss X could have asked for her appeal to be postponed but chose not to do this.
15. Secondly, the clerk’s notes show the panel initially followed the proper decision-making process. The panel considered information about the school and Miss X’s written appeal. The panel decided the school’s admission arrangements were lawful and the Council had properly applied them. The panel considered Miss X’s reasons for wanting a place. The clerk’s notes show the panel considered whether admitting a further child would breach the infant class size limit and they decided it would.
16. The panel then needed to decide if it was an unreasonable decision to refuse admission, as required in an infant class size appeal. But instead, it seems the panel considered the issue of prejudice, as is required in a two-stage appeal. The panel decided the Council had demonstrated admitting a further child would cause prejudice, but that Miss X’s case did not outweigh this. The evidence shows the panel properly considered this issue – although it is not the test the panel needed to apply. It is not clear if the panel decided it was an unreasonable decision to refuse admission.
17. The panel therefore applied the wrong test, and this is fault. But the threshold for a two-stage appeal to succeed is much lower than in an infant class size appeal. So, while the panel was at fault, it cannot be said to have caused Miss X any injustice. This is because her appeal failed when the two-stage test was applied, but it is inevitable it would have also failed if only the more stringent infant class size test was applied. Miss X cannot therefore be said to have been disadvantaged by the identified fault.
18. While I understand Miss X is frustrated her appeal was unsuccessful, there is not enough evidence of significant personal injustice for us to investigate. But I hope the Council will take steps to ensure the correct tests are applied to future appeals. Appellants also need to be given sufficient notice of their appeal hearings.

Back to top

Final decision

19. The Ombudsman will not investigate Miss X’s complaint. This is because while there was some fault by the Council and appeal panel, it was not significant enough for us to become involved. There is also not enough evidence of significant personal injustice to warrant an investigation.

Back to top

Investigator's decision on behalf of the Ombudsman