Summary: Dr X complained the Council applied unlawful, unpublished criteria when allocating places at oversubscribed schools. She also complained about the actions of the Independent Appeal Panel. We have found fault with the way Dr X’s application for a school place was dealt with. To remedy the injustice caused by this fault, the Council has agreed to apologise, make a payment to Dr X, review its policy and provide a copy of this decision to clerks and Panel members.

The complaint

1. Dr X complains that the Council was at fault for the way in which it allocated places at schools to which she had applied for a pace for her son, Y. In particular:
1. it used the order in which parents applied for places at schools as a selection criterion, and
2. increased the number of places offered at the schools above their published number.
2. Dr X says this caused an injustice because her son was potentially denied a place at one of his preferred schools.

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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. 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

5. I considered the written information Dr X provided with her complaint and made written enquiries of the Council.
6. I considered the Schools Admissions Code and School Admissions Appeal Code.
7. I considered all the information before reaching a draft decision on the complaint.
8. Dr X and the Council had an opportunity to comment on my draft decision. considered all comments received before I make my final decision.

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What I found

School admissions law and policy

9. The Government has issued guidance, the School Admissions Code 2021 (the Code), which set out the ways councils allocate places at schools in their area. The School Admission Appeals Code 2012 (the Appeals Code) sets out the procedure to be followed when conducting school admission appeal.

The Council acting as Admissions Authority

10. The Council is the Admissions Authority for all maintained schools in its area. Parents can express a preference for three school places. The Council coordinates admissions to ensure a child is only offered one school place. Each year the Council decides the maximum number of pupils that may be admitted into each school. This is referred to as the Published Admission Number (PAN). It takes account of issue such as the total space available throughout the school as well as the organisation of the year group, resources available and the number of teachers.
11. The Council issues an admissions criterion to use when allocating places. These are listed in five categories in order of priority. Within these priorities, the tiebreak is random allocation.

School admissions appeals

12. Independent Appeal Panels must follow the law when considering an appeal. The law says panel must consider whether the admission arrangements comply with the law, and whether the admission arrangements were properly applied to the case. The panel must then consider whether admitting another child would prejudice the education of others.
13. If the panel finds there would be prejudice to the efficient education of others, it must then consider the appellant’s individual arguments. 

Oversubscription criteria

14. If a school is undersubscribed, all who apply must receive a place. Councils must set out the criteria against which places will be allocated if a school is oversubscribed and there are more applications than there are places available.
15. It says that councils can set their own criteria for allocating school places, but they must not, amongst other things:
1. place any conditions on the consideration of any application other than those in their own oversubscription criteria; or
2. give any priority to children whose parents rank preferred schools in a particular order, including “first preference first” arrangements.

What happened

16. Dr X applied for a place for her child (Y) to start secondary school in September 2022. She expressed a preference for three schools, School A (first preference), School B (second preference) and School C (third preference).
17. Dr X lives in the shared catchment area of School A and School C. Both are nearer to her home than School B.
18. Y was allocated a place at School B.
19. Schools A and C were oversubscribed. There were a number of children, including Y, who were not offered a place at either School A or C. The Council offered 29 additional places across these two schools. It did so by temporarily increasing their PAN and allocating places by way of a random allocation ballot.
20. Dr X’s was concerned about this process. Y was not included in the ballot because he had already been offered a place at his second choice, School B.
21. Dr X says the Council applied a “first preference first” policy than was prohibited by the Code. By doing so, she says Y potentially lost out on being offered a place at School A.
22. Dr X appealed this decision to the Independent Appeals Panel (“the Panel”). She claimed the Council had not followed its published admission arrangements. Instead, it had applied unpublished criteria that she and others were unaware of. Had she been aware of this, she may have chosen different preferences.
23. She provided an example of how Y had been treated unfairly in contrast to a child who had chosen schools in a different order (School A, School C and School B). That child would have been allocated a place at either School A or B. The Council’s unpublished policy effectively meant the priority given to a parent’s second and third choices had a direct influence on whether a place was offered at the first preference school.
24. This point was considered by the Panel in June 2022. The minutes from the appeal hearing record the following information was discussed and considered by the Panel:

• The policy had been applied to accommodate children within the catchment area of Schools A and C and who had placed those schools as their first and second preference (and who would not otherwise have been offered a place within their catchment area or higher preference).
• The policy had been applied in previous years and been the subject of legal advice. This approach was considered to be a pragmatic one.

25. The decision letter set out the Panel’s rationale. This explained:

• the decision to allocate additional places at Schools A and C without increasing their PAN was permissible under paragraph 1.4 of the Code; and
• School A was oversubscribed with pupils living within its catchment area. Child Y was unsuccessful in the random allocation ballot. But as a place was available at School B, he was not considered for a place at School C instead.

26. Dr X’s appeal was unsuccessful. Dissatisfied by the outcome and concerned that the Council applied an unlawful policy that was not properly addressed by the Panel, Dr X brought her complaint to the Ombudsman.
27. In response to the Ombudsman’s enquiries about its admission arrangements, the Council made the following points.

• Its published admission arrangements did not give extra priority to children whose parents rank schools in a particular order.
• The equal preference system used by the Council, required the order of preference to be taken into consideration when allocating places. Places were offered at the school the parents ranked highest.
• In this case, if a child was able to be allocated their second preference, they would not have been considered for a place at their third preference.
• Statistically, even if Y had been included in the ballot for places at School A or School C, it was more likely he would have been allocated a place at School C due to the numbers of available places.

Analysis

28. I have reviewed the relevant case records and am satisfied the Council and the Panel acted with fault for two reasons:

Failure to properly consider whether the admissions arrangements complied with the law

29. The Panel failed to properly consider whether the arrangements complied with the Code. In reaching this decision I have had read the clerk’s notes that record the discussion that took place about the increase in PAN and oversubscription criteria used. The concern about the legality of the Council’s approach was raised not only by Dr X, but several other affected parents. It was therefore particularly important for the Panel to give proper consideration to what had been said.
30. I am not satisfied the Panel did so. The clerk’s note show the Panel failed to specifically address Ms X’s point about the use of additional unpublished over subscription criteria. Dr X argued this was contrary the Code. Rather than addressing this, the clerk’s record state the use of random allocation was allowed. It is not clear from the notes who made this point and whether this was accepted at face value by the Panel. Irrespective of this, the principle of random allocation was not disputed by Dr X and not was relevant to her case.
31. I also have concerns about comments made by the Council’s presenting officer. He was recorded as saying Dr X’s concerns about the legality of the admission arrangements should be the subject of a legal challenge, rather than to the Panel. This was incorrect.
32. In my view, this comment may have influenced the Panel to believe Dr X’s issue was a matter for the courts and not the Panel. The Code makes it clear the legality of the admission arrangements falls within the jurisdiction of the Panel. There is no evidence this incorrect statement was corrected by the clerk to the Panel, as it should have been. I am therefore uncertain as to whether the Panel properly understood its role in considering the issue that had been raised by Dr X and others.
33. For these reasons, I am not satisfied the Panel acted properly considered Dr X’s appeal. This is fault.

Use of unpublished criteria

34. The Council says its oversubscription criteria were contained within its published admission arrangements. I disagree. Information about what would happen in this type of situation where a PAN was temporarily increased was not available to parents.
35. I am satisfied the Council allocated places using unpublished admission criteria. The Code states that in the event of oversubscription, the council must “set out clearly how this will operate, ensuring that arrangements are transparent”. The Council effectively added an extra stage in the ballot process by taking account of preferences. I appreciate it was pragmatic solution, but it was not published, and it should have been. This was fault.
36. I am unable to say whether this practice was unlawful or not. It is not the role of the Ombudsman to determine this. I appreciate Dr X is of the strong opinion that it was not in compliance with the Code. My finding of fault here is restricted to the Council’s failure to be transparent about its oversubscription arrangements and my remedy below reflects this.

Injustice

37. I must now consider what personal injustice, if any, arose as a direct result of these faults.
38. I accept that had Dr X been aware of the arrangements, she may have ranked her preferences differently. She also acknowledges the outcome may have been the same because there was no guarantee her child would have been allocated a place at School A.
39. Because of this, I cannot say with enough certainty that had the Council acted without fault, the outcome would have been different.
40. For this reason, I consider the injustice to be limited to distress, frustration and some uncertainty about whether the outcome would have been different had the faults not occurred. This requires a remedy that I have set out below.
41. There was no fault by the Council for temporarily increasing the PAN at Schools A and C. The Code allows for this to happen.

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Agreed action

42. The Council has agreed to take the following action within four weeks:
1. Apologise to Dr X;
2. Pay Dr X £250 to acknowledge her distress, frustration and uncertainty.
3. Review the use and publication of oversubscription criteria, taking account of the issues raised in this decision statement.
4. Provide all Panel clerks and Panel members with a copy of this decision statement.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have found the Council to be at fault and made recommendations that the Council has agreed to action. On this basis, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman