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Bury Metropolitan Borough Council (21 018 526)

Category : Education > School admissions

Decision : Upheld

Decision date : 13 Jun 2022

The Ombudsman's final decision:

Summary: Mr X complained an appeal panel failed to properly consider his admissions appeal for his daughter, Y, leaving her without a school place. We find fault with the way the panel documented the consideration of Y’s appeal. The Council should apologise to Mr X and arrange a fresh appeal hearing to remedy the injustice caused.

The complaint

  1. Mr X complains an appeal panel failed to properly consider his admissions appeal for Y. Mr X believes the panel did not properly consider Y’s case. Y cannot attend school as she does not have a place at one that is close enough.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with an organisation’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

  1. I considered all the information Mr X provided.
  2. I also considered all the information the Council has provided about Y’s appeal.
  3. Mr X and the Council 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

The School Admissions Appeals Code

  1. The School Admission Appeals Code 2012 (the Code), published by the Department for Education, provides statutory guidance about school appeals. The purpose of the Code is to ensure the independence of admission appeals panels and to ensure that all admissions appeals are fair and transparent.
  2. Section 3 of the Code explains the process appeal panels must follow when reaching decisions on appeals of the type made by Y. There is a two-stage decision making process: first, the panel must examine the decision to refuse admission; and second, it must balance the arguments made by the school and the appellant.
  3. At the first stage, the panel must consider:
    • whether the admissions arrangements complied with the law; and
    • whether the school correctly and impartially applied the admissions arrangements.
  4. At the second stage, the panel must decide whether admitting further children to the school would prejudice the provision of efficient education, or the efficient use of resources. It must balance this prejudice against the appellant’s case, taking account of their reasons for expressing a preference for the school. This will include considering what the school can offer the child that the allocated or other schools cannot. Where the panel considers the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
  5. Schools have a published admission number (PAN). This is the number of children they can safely accept that academic year. The Code says the panel must consider the school’s PAN; however, the admission authority must be able to demonstrate prejudice over the PAN being reached. The Code sets out some possible factors the panel may consider when reaching a view on this. These include:
    • the effect of a further admission on the year group as it moves through the school;
    • whether the school has made any changes to its physical accommodation or organisation since an admission number was originally set for the relevant year group; and
    • the impact on the organisation and class sizes.
  6. The clerk must take an accurate record of the hearing. This includes the proceedings, attendance, voting and reasons for decisions.

Non-statutory guidance

  1. The Department for Education has published non-statutory advice for clerks and appeal panels on school admissions appeals (the Guidance). This provides information to support clerks and panels to ensure they conduct appeal hearings in a fair, transparent and consistent manner.
  2. The Guidance says the panel should ensure to communicate to the clerk how it considered the points raised by each party. The panel should also ensure the reasons for the final decision are explicit.

What happened

  1. In January 2022, Y moved into the Council’s area with her parents who applied for school places. They selected the three closest schools as their preferred choices.
  2. Y was not offered a place at the preferred schools but was told a place may be available at a school further away.
  3. Mr X submitted an appeal against this decision to try and secure a place at their nearest school. Mr X explained that Mrs X was Y’s main care provider but did not drive so they would need to walk to school. Mr X also explained Y had been diagnosed with attention deficit hyperactivity disorder (ADHD) which affected safety on long walking routes and road crossings.
  4. Mr X explained the school offered was significantly further from their home than their preferences and he felt there were issues with the safety of the walking route.
  5. The school explained it had a PAN of 60 for the year group Y was applying for and currently had 64 students on its roll. The school felt admitting Y would be prejudicial as it was already stretched for resources for the students currently enrolled.
  6. The panel heard Y’s appeal by conference call on 16 March. During the appeal, Mr X was asked about his living arrangements and if they were likely to change soon, whether he had researched schools before deciding where to live, and whether he was able to get to other schools.
  7. The panel decided not to uphold Y’s appeal. The clerk’s notes say the decision was that the school had a stronger case than Mr and Mrs X, the PAN was already exceeded, and another school had a space for Y. There is no specific reference to Mr X’s arguments in the notes regarding how the decision was made.
  8. The Council wrote to Mr X that day to deliver the panel’s decision. The Council said the panel had considered the statements from the school and the Council explaining the objections to admitting further students. It explained the panel also noted there were places available at other schools in the area. The Council explained the panel had found the original decision had been correctly made and the admission of a further child would prejudice the education of other children and would not represent an efficient use of resources.
  9. The Council said the panel had also considered Mr X’s arguments but felt they did not outweigh the case from the school and the Council. The Council explained Mr X could refer his complaint to the Ombudsman if he remained unhappy.
  10. Mr X contacted the Ombudsman on 18 March 2022.

Analysis

  1. The guidance explains the clerk must take accurate records of the hearing and the panel should ensure the reasons for its decision are clear. The decision letter sent to Mr X after the hearing contains a summary of Y’s case and says the panel gave it careful and detailed consideration. While this suggests the panel were familiar with Y’s circumstances, the notes of the hearing do not evidence detailed consideration.
  2. The panel must consider the school’s PAN, but the admissions authority must be able to demonstrate prejudice beyond the fact the PAN has been reached. In Y’s case, the school explained it had already exceeded its PAN of 60 for Y’s school year, with 64 students on the roll, and said further admissions would have an impact on the resources.
  3. The clerk’s notes show the panel considered the PAN in Y’s school year. However, the notes do not show if the panel considered further the impact of further admissions beyond the PAN, as the Code suggests it should. It is not clear if the panel explored why admitting Y would cause further prejudice for the school.
  4. The notes show the panel concluded the decision not to admit Y was properly made but give no detail to show how that decision was reached. The notes only state “refused”.
  5. Information with Y’s appeal outline the difficulties in getting Y to and from schools further away from her home. The panel concluded the reasons given did not outweigh the prejudice to the school, but the notes give no explanation of how this decision was reached. There is no evidence showing how the panel considered the specifics of Y’s case and balanced those against the arguments made by the school.
  6. The lack of detail recorded in the notes of the hearing means it is not possible to be certain how the panel reached its conclusions at both stages in the decision-making process. This is fault.
  7. The faults identified have caused Y an injustice. This is because there is uncertainty as to whether the panel properly considered Y’s appeal, in line with the requirements of the Code and the Guidance.

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Agreed action

  1. To remedy the injustice set out above I recommend the Council carry out the following actions, within one month of the final decision being issued:
    • Provide a written apology to Mr X and Y for the failure to adequately record the panel’s consideration of Y’s appeal and the uncertainty this has caused;
    • Arrange a fresh appeal hearing with a new panel and clerk, to consider Y’s appeal again and issue a fresh decision;
    • Remind the clerk of the importance of detailed and accurate record keeping of the appeal panel’s consideration of any case.
  2. The Council has accepted my recommendations.

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Final decision

  1. I find fault with the Council for not ensuring the consideration of Y’s appeal was properly documented. I make the recommendations set out above to remedy the injustice caused to Mr X and Y.

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Investigator's decision on behalf of the Ombudsman

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