Summary: Miss B complained that the Council’s Admissions Appeal Panel failed to properly consider the medical evidence she provided in support of her application for a place for her daughter at her preferred school, gave her misleading advice about it and failed to explain why it discounted it. We have not found fault with the Panel’s actions.

The complaint

1. Miss B complained that Southampton City Council’s (the Council) Admissions Appeal Panel failed to explain in its decision why it discounted the medical evidence Miss B provided, supporting her case that School Z was the only school in the area which could meet her daughter’s needs. This has caused Miss B and her daughter significant distress.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (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

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B 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

Admission arrangements

5. All schools must have a set of admission arrangements containing oversubscription criteria. The school’s admission authority uses these to decide which children will receive an offer of a place if there are more applications than places available. The school’s admission authority sets the admission arrangements.
6. Oversubscription criteria will often be based on catchment areas. Children whose address falls inside a catchment area will normally be given higher priority for admission to the school than those living outside the catchment area. A school’s admission arrangements must also contain a Published Admission Number. This is the number of places the school will offer at each point of entry. The point of entry is when the school normally admits children.

Secondary Admission appeals

7. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.  Appeal hearings must be held in private and conducted in the presence of all panel members and parties. Appeal panels must act according to the principles of natural justice. A clerk supports the appeal panel.
8. Panels must follow a two-stage decision making process. 
• Stage 1: the panel examines the decision to refuse admission. The panel must consider whether: 
1. the admissions arrangements complied with the mandatory requirements set out in the School Admissions Code; 
2. the admission arrangements were applied correctly; and if 
3. the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.  
9. If a panel decides that admitting further children would “prejudice the provision of efficient education or the efficient use of resources” they move to the second stage of the process. 
• Stage 2: balancing the arguments. The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted.  
10. In multiple appeals, the panel must not compare the individual cases when deciding whether an appellant’s case outweighs the prejudice to the school . However, where the panel finds there are more cases which outweigh prejudice than the school can admit, it must then compare the cases and uphold those with the strongest case for admission. Where a certain number of children could be admitted without causing prejudice, the panel must uphold the appeals of at least that number of children.
11. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions. 

What happened

12. Miss B’s daughter C has a diagnosis of Autism Spectrum Disorder. She experienced bullying while attending primary school which caused her significant distress. She moved to a different school and was much happier there.
13. In 2022 Miss B applied for a place at secondary level: School Z. She considered it was the only school which could meet C’s needs because it had the right facilities (a sensory room and autism support dog) and policies (comprehensive bullying and homework policies particularly for children with special needs).
14. The Council did not offer place at School Z as she lived too far away. Instead, it offered a place at School Y which was the closest school to her home address with an available place.
15. Miss B submitted an appeal on the grounds that:
• the children who bullied C at her primary school would be attending School Y and all C’s current friends would be going to School Z. This was causing C extreme stress and anxiety.
• School Y could not provide any reassurance that they were equipped to deal with bullying issues properly and did not have a SENCO.
• School Z has a performing arts course which C loves and is not available at School Y.
• School Z has a better understanding of behavioural issues and special educational needs.
• C’s consultant paediatrician supports her attendance at School Z and would provide a letter for the appeal hearing.
16. C’s paediatrician submitted a letter to the appeal panel saying:

“Due to her diagnosis of autism, [C] may struggle to form positive friendships, and will certainly struggle with joining a group of children she has previously found incredibly critical of her in the past, this may well affect her attitude to the entire school, even if this was managed by separating these children in the much larger numbers in secondary school…I understand that [School Z] was [C]’s family’s first choice as it was a feeder school from [her current school] and therefore she was likely to transition with her positive attitude and positive friendships from this school.”

17. The Council received 44 appeals for School Z. School Z has a PAN of 360 pupils for year 7 entry. The Appeal Panel held stage one of the process and invited all interested parties to attend. The Council presented the school’s case saying why it could not admit pupils above the PAN and parents were able to ask questions. The Clerk’s notes show Miss B asked what percentage of the year seven applicants did not get a place at any of their preferred schools.
18. Miss B says her mother also asked:

“if we have a letter from a medical professional that stated one school over another was in the best interests of the child was this enough to get that school”.

19. Miss B said the Panel said yes and she was reassured that C would get a place once the Panel received the doctor’s letter.
20. The clerk’s notes do not mention this exchange. But the clerk has recently confirmed that Miss B’s mother did ask the question. She said the Panel were aware that this answer could stray into the stage two process and the Chair responded with a view to ensuring that the question would be brought up at stage two so the Panel could check if a mistake had been made and also to ensure the Panel received more detailed information to take into account at the correct stage in the appeal process.
21. The Panel unanimously agreed that the school had made its case and moved on to consider the individual appeals. Three parents had withdrawn so the Panel heard 41 appeals.
22. The clerk’s notes show that the Panel discussed C’s medical needs and considered the letter from C’s paediatrician. Miss B also explained her love of singing and drama, her bullying experiences and her current mental state. She explained her current primary school had close links with School Z, this was the first time C had made friends and all of them were going to School Z. She had been making social and academic progress since changing schools. Miss B explained that School Y was a new school and the building work was still going on which would terrify C. School Y had no nurture rooms or safe spaces and its behaviour polices were brief and inappropriate. C did not want to go to School Y: she was terrified of the bullies being there and School Y had not produced an anti-bullying policy yet, it was not ready for C. School Z was the only school that could help her.
23. The Panel asked questions about her medical conditions, her current school and how she would get to School Z. It then considered whether her individual arguments outweighed the prejudice. Initially the notes show the Panel unanimously considered her a possible Yes but the final decision was a No. The notes of the deliberation process show the Panel considered the points Miss B had made.
24. The Council notified Miss B of the decision. It said the Panel agreed that the admissions criteria had been applied correctly to C’s case and it summarised the arguments Miss B had made to the Panel. It said it did not consider Miss B’s reasons did not outweigh the prejudice because:
• There was no evidence that School Z was the only school that could cater for C’s needs. The Panel considered that all schools in the city deliver additional support to children with special educational needs including those with autism.
• All schools support pupils in making new friends as part of the transition process.
• C could enjoy performing arts at School Y.
• All schools deliver the national curriculum and have a policy for managing behaviour including bullying and the Panel hoped Miss B could discuss C’s particular needs with School Y before the start of term.
25. Miss B then complained to us.
26. In response to my enquiries the Council has explained that the Panel initially considered each individual case with no comparison to any other cases. At this point C’s case was a weak yes and there were aspects of the case they wished to discuss further. At the end of all the stage two hearings the Panel had a total of 15 children with a Yes, including C. The Panel concluded that the school could not cope with an additional 15 children as it was already over the PAN when children with an EHCP were included. The Panel reconsidered the cases and reduced the successful appeals to seven. It concluded that the school could cope with one additional pupil per tutor group.

Analysis

27. I understand how disappointing this process must have been for C and Miss B, but I have not identified fault in the way the Panel made its decision. It allowed all the appellants to attend stage one of the appeal and to ask questions. It correctly considered whether the school had made its case, taking into account the points that had been raised. It then went on to hear the individual arguments of each appellant and reached provisional decisions as to whether their case outweighed the prejudice that would be caused if they were admitted. It followed the guidance and did not compare the cases until it had heard all the appeals. It then compared the possible ‘yes’ cases and reduced the number to seven.
28. The notes show that all the points Miss B made and the letter from C’s doctor were considered. The decision letter explained why the Panel did not consider the arguments outweighed the prejudice and specifically that it did not agree that the evidence supported Miss B’s view that School Z was the only school that could meet C’s needs, because all schools in the city catered for pupils with special needs and had behaviour policies to deal with bullying. I understand why Miss B disagrees with the conclusion, but I have not found fault with the way it was made and so I am unable to change the decision.
29. In respect of the issue of the medical letter, I do not agree that the Panel gave misleading information at the stage one hearing. It was not an appropriate question to raise at stage one because it related to the individual needs of one child. I note there is a difference of opinion as to what the Panel said in response: Miss B believes the Chair, after consulting the other members of the panel, gave an unequivocal yes, whereas the Clerk recollects a more circumspect answer that the information should be provided to the Panel to check and consider further at stage two. In the absence of any written evidence, I am unable to say which view is right. But regardless of the answer the Panel gave at stage one, I am satisfied that it properly considered the letter as part of the stage two process. However, it did not conclude the letter supported Miss B’s view that School Z was the only suitable school for C. Again, while I understand Miss B’s unhappiness with that view, I consider the Panel properly considered the evidence as part of the appeal.

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Final decision

30. I have completed my investigation as I am unable to find fault causing injustice in the actions of the Council towards Miss B.

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Investigator's decision on behalf of the Ombudsman