Summary: We found fault by the Council on Mrs J’s complaint about the appeal panel failing to follow procedure when it refused her infant class size appeal against its decision not to provide her son a place at her preferred school. The clerk’s notes failed to properly record the panel’s decision. The agreed action remedies the injustice caused.

The complaint

1. Mrs J complains there was a failure by the:
1. appeal panel to follow procedure when it refused her infant class size appeal against the admission authority’s decision to not provide a reception place for her son at her preferred school starting in September 2022; and
2. Council to amend its records, while he was on the school’s waiting list, after she provided evidence of her change of address.
2. As a result, her son’s new address was not properly considered during the appeal and his position on the waiting list was not assessed correctly which meant he lost the chance to be offered a place. He remains in a new school where he is unhappy.

Back to top

The Ombudsman’s role and powers

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)
4. 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)

Back to top

School Admission Appeals Code (February 2021)

5. Independent appeal 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. These are called excepted pupils.
6. 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. (paragraph 4.4)

7. What is ‘reasonable’ 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 in light of the admission arrangements. (paragraph 4.9)
8. We cannot question the decision if it has been properly taken. If the panel has been properly informed, and used the correct procedure, then it is entitled to come to its own judgment about the evidence it hears.
9. When a school receives more applications than it has places (the ‘published admissions number’, or PAN), the applications will be ranked according to its over-subscription criteria. Each application will be placed into the highest appropriate criterion, and places are then allocated in descending order of rank.

10. Appellants do not have the right to a second appeal for the same school for the same academic year unless, in exceptional circumstances, the Council has accepted a second application from the appellant because of a significant and material change in the circumstances of the parent, child, or school, but still refused admission. (paragraph 5.1)
11. The clerk must ensure an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting, and reasons for decisions. (paragraph 2.26)
12. The Ombudsman’s role is to check the appeals were carried out properly. We do not decide whether the child should be given a place at the school. We do not question the merits of decisions properly taken. The panel is entitled to come to its own judgement about the evidence it hears.

Back to top

Council policy on home address for admission applications (2021/2022)

13. If a school is oversubscribed, the address of the parent or carer with whom the child normally lives will be used in the allocation process. Residency at a particular address is a key factor in allocating places at oversubscribed schools. If an applicant moves house, they must contact the Council to provide details of the new address.
14. For the application to be considered on the basis of the new address, documentary evidence will need to be provided. The Council will need satisfying the applicant will be resident at this new address on national offer day and at the time the child would be admitted to the school being applied for.

Back to top

How I considered this complaint

15. I considered all the information provided by Mrs J, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs J and the Council. I considered their responses.

Back to top

What I found

16. Mrs J applied for a reception place at her preferred school for her son K. On the application form she said they would be moving house and gave the new address. At the time Mrs J lived in property A, which was not in the school’s catchment area, but was moving to property B. The Council confirmed property B was not in the school’s catchment either. Mrs J disputes this.
17. Property B was owned by her grandfather but was in the process of being transferred to her.
18. In February 2022, before deciding the application, the Council called her to ask if she had moved. She explained she had not but, offered to send a letter from her solicitor confirming the current position. She claims she was told not to bother as it would make no difference.
19. The following month, her grandfather died. Due to legal problems, this delayed the transfer of property B to her.
20. In April, the Council refused her application for the preferred school. Mrs J believes K should have received a place because property B was in the catchment for the school.
21. She appealed the Council’s decision to refuse him a place. One of the points she made in her appeal was the admission arrangements were not correctly and impartially applied to K’s application. She argued the Council’s decision was made on the basis of property A rather than property B.
22. In June, she moved to property B and contacted the Council’s admissions team to tell it of her change of address which they said they noted. She provided evidence of the move when asked to do so. I have seen an email she sent attaching her utility bill for property B. The Council acknowledged receipt and asked if she was now in the property. Mrs J said they would be in by the end of the week. Her solicitor wrote confirming the transfer which would be done at the ‘appropriate time’.
23. The same month, the Council also replied to her query about how the waiting list worked. The Council replied saying moving address would affect K’s position on the list. If she could provide evidence, it would adjust his position on it. The evidence needed would need to be a letter from her solicitor confirming contracts to buy it had been exchanged.
24. The Council updated her address when she sent a bill confirming she was responsible for the new address. The Council accepted this as evidence because of a solicitor’s letter as well and being told probate was complicated.
25. In July, the Council sent Mrs J the appeal pack for the hearing. This only listed the evidence of the school as the ‘COMPOSITE APPEAL MAP’. Shortly afterwards, the Council sent the remaining bundle it received late from the school, including its statement of case. I have seen an email sending this to Mrs J. This did not include information about the class organisational chart. The Council confirmed nobody saw this information as the school never sent it.
26. The same month, the appeal panel heard her appeal. She is unhappy the appeal pack information was not updated as it still showed her address as property A. Before the hearing, the Council emailed the three panel members to tell them Mrs J had moved address.
27. During the appeal, the panel noted the appeal pack sent to it and the appellants was missing the class organisation chart. The chair said he was ‘bothered when appendix 2 is not there’. The notes of the hearing also show the presenting officer responding to a panel question about the class organisation information and said it should have been changed to say it was not applicable.
28. The Council confirmed the organisation detail was not sent with the appeal pack as the school failed to provide it. Despite this, it was an infant class size appeal and the school confirmed there were 30 pupils in the class which meant it reached infant class size limits.
29. It also pointed out the appeal was about the application process at the time Mrs J made her application. This meant the address she had at the time of the application, not the address she later sent evidence of two months after the offer day, was relevant. The panel was aware of her change of address.
30. The appeal panel rejected her appeal. The clerk to the panel sent Mrs J a letter explaining the panel’s decision. This said the panel: accepted any increase in reception class size would breach the infant class size limit; considered the admission arrangements complied with the law and were correctly and impartially applied; reflected on her circumstances presented during the hearing; considered whether the Council’s decision to refuse the application was one no reasonable authority would have made. While the panel had sympathy for her, it decided there were no exceptional circumstances to allow her appeal.
31. In September, Mrs J contacted the Council again with further evidence but explained the transfer of property B depended on probate getting completed. In response to my draft decision, she sent a copy of an email from the Council received this month. This was in response to her evidence of her move. The email acknowledged receipt and said her position on the waiting list had now changed ‘in relation to this information’.
32. K was put on the waiting list and started at his allocated school. She later found out a place became vacant at the preferred school and says the Council wrongly allocated it to another child who lived further away. The Council confirmed Mrs J’s claim is incorrect. It provided information about why this child received a place. While I cannot disclose it, I am satisfied there was no fault with this allocation.
33. The Council explained a change of address does not automatically trigger a fresh appeal. The appeal panel sat after the change of address which means there was no significant change for it to consider.
34. The Council accepted while its website and brochure contained most of the information needed about what an applicant must provide when moving house, it cannot anticipate every scenario. The brochure suggests parents contact its team if they have a query. It is now looking at amending its booklets to explain what documentary evidence it might need.

My findings

Complaint a): Appeal panel procedure

35. The appeal paperwork explained why the Council refused Mrs J a place at the preferred school, why the Council believed the school could not admit more pupils, and why Mrs J wanted a place at the school.
36. At the hearing, the panel first heard the case for not admitting more pupils. The law says an infant class with one teacher should not normally have more than 30 pupils. The school normally has one class of 30 pupils for each year group and the Council allocated places to this limit in the reception class.
37. When a panel decides an appeal is an ‘infant class size’ appeal, it can only uphold the appeal for one of two reasons: first, if the panel considers there was a mistake in the admissions process; and second, if the panel considers the decision to refuse to admit the child was one which a reasonable authority would not have made in the circumstances.
38. Case law says what is ‘unreasonable’ is a high test. The panel needs to be sure refusing a place was “perverse” or “outrageous”. For that reason, panels rarely find an admission authority’s decision unreasonable.
39. I make the following findings on this complaint:
1. The appeal pack sent to Mrs J referred to appendix 2 which was not enclosed. The school never provided this document which was about the class organisation. While it is unfortunate the school did not send this, the evidence shows Mrs J was not disadvantaged in any way from this omission because the document was never produced. This means the appeal panel did not have a copy of it either. It did not, therefore, see evidence which she had not seen.
2. I am satisfied the appeal panel members were fully aware of Mrs J now living at property B. This is because I have seen an email from the Council to them before the hearing explaining this. The clerk’s notes record what Mrs J told the panel which included moving to property B and the problems she had with probate. They also show the questions asked by the panel and the responses from the presenting officer. Mrs J did not move into property B until about three months after the application had been decided.
3. The panel had to consider whether the Council properly assessed her application according to its allocation policy. When Mrs J applied for a school place, she was living at property A, and this was the address the Council used when deciding her application.
4. I have considered the clerk’s record of the appeal panel decision. Under the Code, the clerk, “must ensure an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting and reasons for decisions”.
5. I am not satisfied the notes comply with the Code. This is because they do not record the panel’s deliberations or the reasons for its decision. They simply record the individual members saying ‘No’ on her appeal when reaching their decision. It only records one member saying ‘No- happy to be on waiting list, no extenuating circumstances’.
6. The decision record should have made it clear why the panel reached the decision it did. The notes do not explain how the panel decided it was satisfied the admission arrangements were properly and correctly applied on this case, especially as one of Mrs J’s key submission was about her address, for example. Failure to provide an accurate record of the panel’s deliberations and decision-making is fault and calls into question the panel’s decision.
7. Nor do the notes reflect what the decision letter to Mrs J said the appeal panel members took into account, such as its reflection on her circumstances presented during the hearing and its decision they were not exceptional.
8. I consider this failure caused Mrs J an injustice as she has the uncertainty of not knowing whether the decision was made properly, and the proper outcome reached.

Complaint b): Amending records

40. The appeal pack, particularly the map, referred to property A. This was not fault because this was the address she lived at when she applied for a school place for K and when the Council decided her application.
41. I am satisfied the Council noted her move to property B when she sent evidence of her bill and a solicitor’s letter.
42. I am also satisfied K did not unfairly miss out on a place off the waiting list as claimed by Mrs J. While the Council amended the address back in June when she sent a copy of the bill, the email Mrs J received in September seemed to cast doubt on whether this was done earlier for the waiting list as well. Even if it had not been done for both the appeal process and the waiting list at the same time in June, there would be no injustice to Mrs J. This is because her claim about the other child getting a place from the waiting list, despite living further away than K, was incorrect.

Back to top

Agreed action

43. I considered our guidance on remedies.
44. In response to my draft decision, the Council sent a copy of the power point presentation used to deliver training that took place in November 2022. The clerk attended this course which looked at reviewing minutes and a decision letter when considering what was required by the Code.
45. The Council agreed to carry out the following actions within four weeks of the final decision on this complaint:
1. Send Mrs J a written apology for the failure of the clerk’s notes to properly record the decision reached by the appeal panel; and
2. Start making arrangements for the rehearing of her appeal with a new appeal panel which will be heard as soon as possible.
46. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

47. I found fault on Mrs J’s complaint against the Council. The injustice caused is remedied by the recommended action.

Back to top

Investigator's decision on behalf of the Ombudsman