Summary: an Independent Appeal Panel failed to properly consider Mr F’s appeal against the Council’s decision to refuse admission to the school for his children. Further, the case presented by the Council to the appeal was largely irrelevant and in part wrong. It did not address the right questions. The Council wrongly involved the Fair Access Panel in the decision.

The complaint

1. Mr F complains about the Independent Appeal Panel’s decision not to admit his children, B and C, to a primary school.

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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 a school admission appeal panel’s decision simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
3. We check the Independent Appeal Panel followed the Code of Practice issued by the Department for Education and the hearing was fair.  We do this by examining the notes taken by the Clerk during the hearing.  We do not have the power to overturn the Panel’s decision, and we cannot give a child a place at the school. If we find fault, which calls the panel’s decision into question, we may ask for a new appeal hearing.
4. Once we are satisfied with a panel’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 have considered:
• Information provided by Mr F and the Council;
• all the information presented to the Appeal Panel, the notes taken by the Clerk during the appeal, and the Panel’s decision letter following the appeal;
• the School Admissions Code 2021;
• the School Admissions Appeals Code 2012;
• Fair Access Protocols. Guidance for school leaders, admission authorities and local authorities issued by the Department for Education in August 2021; and
• Royal Greenwich’s Primary Fair Access Protocol (September 2021).
6. I invited Mr F and the Council to comment on my draft decision.

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What I found

What happened

7. B and C attended a local primary school.
8. Mr F was unhappy with the school. He made in-year applications for places for the children at another local primary school where there were places available.
9. The Council is the admission authority and is responsible for admissions and appeals. The Council referred Mr F’s applications to the Fair Access Panel.
10. The Fair Access Panel operates the local Fair Access Protocol. This is a mechanism developed by the Council in partnership with all schools in the area to ensure those who are having difficulty securing a school place in-year are allocated a place as quickly as possible.
11. The Fair Access Protocol may be used to find places for children who have been refused admission on the grounds of their challenging behaviour and who are having difficulty finding school places.
12. Following consideration by the Fair Access Panel, the Council rejected Mr F’s applications even though there were places available at the school.
13. Mr F appealed the Council's decision. An Independent Appeal Panel upheld the Council's decision.
14. Unhappy with the Panel’s decision, Mr F complained to the Ombudsman.

The law and government guidance

15. Ordinarily, admission authorities must not take account of reports from previous schools about children’s past behaviour, attendance, attitude, or achievement, or that of any other children in the family. (School Admissions Code 2021, paragraph 1.9)
16. They may not refuse to admit a child on behavioural grounds in the normal admissions round or at any point in the normal year of entry, except where the child has been permanently excluded from two or more schools in the previous two years. (School Admissions Code 2021, paragraph 3.9)
17. However, where an admission authority receives an in-year application for a year group that is not the normal point of entry and it does not wish to admit the child because it has good reason to believe the child may display challenging behaviour, it may refuse admission and refer the child to the Fair Access Protocol. (School Admissions Code 2021, paragraph 3.10)
18. The Code says an admission authority should only rely on this provision if it has a particularly high proportion of either children with challenging behaviour or previously permanently excluded pupils on roll compared to other local schools and it considers that admitting another child with challenging behaviour would prejudice the provision of efficient education or the efficient use of resources. (School Admissions Code 2021, paragraph 3.10)
19. However, government guidance says an admission authority must not refuse to admit the child to a school on the basis that they would be, or they believe they would be, eligible to be placed via the Fair Access Protocol. The application must be processed in accordance with the usual in-year admissions process. (Fair Access Protocols. Guidance for school leaders, admission authorities and local authorities issued by the Department for Education in August 2021, page 9)
20. When an admission authority refuses to admit a child, the parent has a right of appeal to an Independent Appeal Panel.
21. The Appeals Code says that if an application has been refused despite there being places available, the governing body must present their case for refusal, demonstrating how admission of the child would prejudice the provision of efficient education or efficient use of resources. When considering such an appeal, in addition to considering the appellant’s arguments for their child to be admitted, the panel must take account of the requirements set out in the local authority’s Fair Access Protocol. The panel must carefully consider whether the presenting officer has clearly proven that admission of the child would be prejudicial to the school or other children. (School Admission Appeals Code 2012, paragraph 3.24)
22. 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. (School Admission Appeals Code 2012, paragraph 2.26)

The Council’s Fair Access Protocol

23. The Council has published a Fair Access Protocol for primary school children.
24. The appeal papers say the referral to the Fair Access Panel was made on the basis the children were known to other agencies and refer to “point J” of the Fair Access Protocol. The Council’s Fair Access Protocol does not have a section J.

Consideration

The referral to the Fair Access Panel

25. I could not find any information in the Council’s Fair Access Protocol that was relevant to the Council’s decision in this case.
26. The Council referred me to paragraph 3.17(d) of the School Admission Code to explain why it used the Fair Access Protocol. This says,

“3.17 Fair Access Protocols may only be used to place the following groups of vulnerable and/or hard to place children, where they are having difficulty in securing a school place in-year, and it can be demonstrated that reasonable measures have been taken to secure a place through the usual in-year admission procedures.

…

d) children in alternative provision who need to be reintegrated into mainstream education or who have been permanently excluded but are deemed suitable for mainstream education.”

27. The Council explained that B had previously attended a 14-week ‘re-focus’ programme at a neighbouring council’s alternative provision, and C was being considered for the same programme.
28. However, Mr F’s children already had school places. They do not need to be “placed” by the Fair Access Protocol. Mr F was unhappy with the school and wanted them to go to a different school. This is a different request which is not covered by the Fair Access Protocol.
29. There was no role for the Fair Access Panel in deciding Mr F’s application. The Fair Access Panel would allocate places if the children were without school places. The Fair Access Protocol was not relevant.
30. Referring the children to the Fair Access Panel was fault.
31. The Council, as the admission authority for the school, was responsible for deciding Mr F's application. As government guidance says, Mr F’s application must be processed in accordance with the usual in-year admissions process.

The Independent Appeal Panel

32. The School Admissions Code sets out the limited circumstances in which an admission authority can refuse admission to a school where there are places available.
33. The Council produced a document to explain why it refused Mr F’s applications. Much of the information in the document is irrelevant. Some of it is wrong. This is fault.
34. The document says the children’s cases “qualified” under the Council’s Fair Access Protocol and the Fair Access Panel “therefore considered that it is relieved of its duty… to comply with parental preference.” This is wrong.
35. The document goes on to explain the current school has “put in a number of interventions” and the Fair Access Panel felt a move at this time could be “counterproductive”. There is little detail and no evidence.
36. It does not explain why the children’s admission to the school would be prejudicial to the school or other children.
37. The document does not adequately explain the Council’s decision. This is fault.
38. The hearing lasted for 15 minutes. The notes of the hearing are very brief. Both children’s cases were heard together. There is no evidence the Panel considered the children’s individual cases. This is fault.
39. The notes say the Panel concluded the Fair Access Panel “was right” and the parents should allow “the process to finish and settle down before moving.”
40. In response to my enquiries, the Council confirmed no evidence from the Fair Access Panel, other than the Council’s statement, was presented to the Independent Appeal Panel.
41. There was no explanation in any of the papers – either from the Fair Access Panel or the Independent Appeal Panel – of how admission of the children would prejudice the provision of efficient education or efficient use of resources at the school.
42. There was no evidence in any of the papers presented to the Independent Appeal Panel to show the children may display challenging behaviour.
43. There was no evidence in any of the papers presented to the Independent Appeal Panel to show the school had a particularly high proportion of either children with challenging behaviour or previously permanently excluded pupils on roll compared to other local schools.
44. These are all factors the School Admission Appeals Code says must be presented in the admission authority’s case and the Panel must consider.
45. Nevertheless, the minutes record the Independent Appeal Panel was satisfied the admission arrangements had been correctly applied.
46. This gives the impression the Independent Appeal Panel “rubber stamped” the Council’s decision without any evidence to show how it was reached. This is fault.

Conclusions

47. There was fault in the appeal which calls the decision into question. The is no evidence the Panel considered how the Council made its decision to refuse Mr F’s applications. Further, there is no evidence in the appeal papers to show the Council complied with the School Admissions Code.
48. For the avoidance of doubt, I have no view on the question of whether Mr F’s children should have been admitted to the school or not. This was for an Independent Appeal Panel to decide following the process set out in the relevant Codes.
49. The Council sent me information from the children’s referrals to a “re-focus” programme which shows their school at the time had concerns. This was not presented at the appeal. However, it is for the Independent Appeal Panel, not the Ombudsman or the Council, to evaluate this evidence. There was no evidence at all about the potential impact of the children’s admission on Mr F’s preferred school.
50. The Council considered it was in the children’s best interests to remain at their current school. While I do not doubt the sincerity of the Council’s view, this is not a decision for the Council to make.

Latest developments

51. In a helpful response to my draft decision, the Council said that while it accepted it had made mistakes, the children had, in fact, now been admitted to the school with a package of support.

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Agreed action

52. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
53. As the children have now been admitted to the school, there is no need to hold a fresh appeal.
54. Nevertheless, the Council has agreed to report back to the Ombudsman within one month of my final decision on the learning from this complaint, in particular concerning the relationship between the Fair Access Protocol and in-year applications.

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Final decision

55. The Council accepted my findings and recommendations, so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman