Summary: Mrs X complained about how the Independent Admissions Appeal Panel considered her appeal for a place in year 3 at the School for her child Z. There were some faults in the way the Panel considered the appeal. The School has agreed to arrange a fresh appeal with a different panel to remedy the injustice this caused.

The complaint

1. Mrs X complains the Independent Admissions Appeal Panel failed to properly consider her appeal against the School Governor’s decision to refuse a place for her child to year 3 at the School. This caused her frustration and meant her child was refused a place.

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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 whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (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 information provided by Mrs X and have discussed the complaint with her on the telephone. I have considered the information provided by the School in response to our initial enquiries and the relevant law and guidance.
5. I have considered the decision of the Schools Adjudicator of October 2022 regarding the School’s admission arrangements.
6. I gave Mrs X and the School a copy of a draft of this decision and I considered any comments I received before reaching a final decision.

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What I found

The relevant law and guidance

7. Statutory guidance about school admissions and appeals can be found in The School Admissions Code and School Admission Appeals Code. Both are published by the Department for Education. 
8. 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.  
9. 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. In an infant or primary school this is usually the reception year.  
10. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.  
11. Panels must follow a two stage decision making process.
12. At stage 1 the panel examines the decision to refuse admission. The panel must consider whether: 
• the admissions arrangements complied with the mandatory requirements set out in the School Admissions Code; 
• the admission arrangements were applied correctly; and if 
• the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.  
13. 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. 
14. The panel must uphold the appeal at the first stage where it finds that the admission arrangements did not comply with admissions law or had not been correctly and impartially applied, and the child would have been offered a place if the arrangements had complied or had been correctly and impartially applied;
15. Stage 2 involves balancing the arguments. The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted.  
16. Appeal panels must either uphold or dismiss an appeal and must not uphold an appeal subject to any conditions. Appeals must be decided by a simple majority of votes cast. A panel’s decision that a child shall be admitted to a school is binding on the admission authority concerned. 

The School’s admissions policy

17. The School opened as a voluntary aided school in September 2020. The Governors of the School are the admissions authority. The School’s published admissions policy sets out the oversubscription criteria it applies when there are more applications than places. It places applicants into one of eight categories. Categories 1 to 4 give priority to baptized Catholic children, with 1 being the highest. If there were more applications than places, then places were allocated within a category based on random allocation.
18. The admissions policy also states that ‘In year 3 and in subsequent years Runnymede St Edwards Catholic Primary School will admit a maximum of 6 Baptised Catholic boys aged 7, who have had a successful voice trial at the Metropolitan Cathedral of Christ the King and been offered a place in the cathedral choir’.
19. For ‘in year’ applications received outside the normal admissions round, the policy states that if places are available, they will be offered to those who apply. If there are places available but more applicants than places, then the published oversubscription criteria will be applied. A waiting list for those who have not been offered a place will be kept until the end of the relevant academic term.

The Schools adjudicator

20. The Office for the Schools Adjudicator (OSA) considers objections and variations to school admission arrangements. If necessary, the Adjudicator can make binding decisions requiring admission authorities to revise their admission arrangements.
21. In October 2022 the Schools Adjudicator upheld an objection to the School’s admissions arrangements for September 2023. It required the School to revise its admission arrangements. Its findings included:
• Admitting pupils to year 3 meant year 3 was a relevant year group and so arrangements for admitting to that year must comply with the law and code including the setting of a published admissions number and oversubscription criteria. If year 3 was a normal year of admission, then highest priority had to be given to looked after children who were catholic.
• The arrangements did not conform to the Equality Act or the Admissions Code because they discriminated against girls by restricting admissions at year 3 to boys alone.
• Leaving aside that this was unlawful discrimination on the grounds of sex, no maintained schools can keep places empty if there are children who would like them.
• It questioned whether admitting boys based on a voice test was selection by ability. Only grammar schools and those schools who had pre-existing partial selection prior to 1998 were permitted to select on ability.

What happened

22. Mrs X applied for a place in year 3 at the School for her child Z. The School refused the application. Mrs X appealed in December 2022. Mrs X explained the difficulties she had getting two children to different primary schools. She also said she was told by the School that one vacant place had not yet been offered under the criteria ‘a maximum of 6 baptised Catholic boys aged 7’.
23. The School held Mrs X’s appeal in February 2023.
24. At the appeal, the School presented its case. Its case included:
• There were 54 children on the waiting list for year 3. One applicant was in category 1 (baptised catholic children in local authority care), four in category 2 (baptised catholic children with a sibling at the School. This included Z), 41 in category 4 (baptised catholic children) and eight in category 8 (other children whose parents expressed a preference for the School).
• The School was expanding over the next four years to a two form entry school. It currently had 60 children in Reception and year 1, 30 in year 2, 32 in years 3 and 4 and 30 in years 5 and 6.
• The School had a net capacity of 303. The building was being redeveloped and the maximum number of children each class could take was 33. It said two choristers had taken up places and a third was being auditioned.
• To admit another child would significantly disadvantage other children in the class as it would still need to honour the agreement to take three chorister places at the School.
• It had a significant budget deficit and had to make staff redundancies. To admit another child would significantly impact on provision.
25. Mrs X said the oversubscription criteria stated there would be a maximum of six baptised Catholic boys admitted not three. The School advised this was because there was now a two form entry in Reception and Year 1. For the previous one form entry years there were three places available. It could not have an extra six children in a class of 30.
26. Mrs X asked why the School would oversubscribe for a boy in the choir but not for someone on the waiting list and she felt this was discriminatory. The School said if it used the oversubscription criteria it would offer a place first to a child in category 1 and then to category 2 which Z fell into. With regards to the choristers it advised the cathedral was looking to change its approach so it would be open to all rather than just boy choristers.
27. The Panel asked about the deficit budget and staff redundancies. It asked about discrimination and if the cathedral had now accepted it would be discriminatory to not admit girls to the choir, why had the School not moved to a non-discriminatory position. The School advised a new policy had been sent for consultation but for this appeal the previous policy applied.
28. The panel asked about the waiting list. The School advised if a chorister left it would need to honour the chorister place. If a child left who was not a chorister, it would offer the place based on the waiting list.
29. The School explained that boy and girl choristers spent the same time at the Cathedral choir. However, boys were admitted earlier because their voices break earlier, and they have to leave the choir.
30. Mrs X presented her case. Her reasons for the appeal included:
• She was struggling with school drop offs and pick ups.
• She considered the admissions policy was discriminatory
• It was not fair that the choir criteria were not within the numbered criteria and if there was still a place available it should have been given to someone on the waiting list.
31. The panel asked about the transport arrangements for Mrs X’s children.
32. After the hearing the Panel unanimously decided the admission criteria were lawful and correctly applied. It was satisfied the School was full and to admit another pupil would prejudice the provision of efficient education or the efficient use of resources. It did not consider Mrs X’s case outweighed that of the School.
33. The notes record it considered there was some confusion around choristers but even if those places were removed there was no guarantee Z would get a place. It did not consider the admission criteria were discriminatory. It noted if there were no choristers there would still be 30 children in the class.
34. The Clerk to the Panel sent the decision letter to Mrs X following the appeal, setting out the decision reasons in detail. Mrs X remained unhappy and complained to us.

Findings

35. In its decision making the Panel stated the School’s admission arrangements were lawful. However, the Schools Adjudicator found the School’s admission arrangements unlawful in October 2022, and these were the admission arrangements which applied to Mrs X’s case. The panel failed to properly consider if the arrangements were lawful and properly applied. This is fault.
36. The published admission arrangements stated the School would admit a maximum of six baptised catholic boys aged 7 (into year 3) who had a successful voice trial. However, at the hearing the School explained the current year 3 was a one form year so only three places would be offered. This is not in line with the published admission procedure which stated six places would be offered and is fault.
37. There was inconsistency in the School’s case. It argued that it was full and could not admit another child into year 3 and yet was willing to accept an additional child if they were a chorister. This inconsistency was fault.
38. The School only filled two places with choristers and on that basis there was still one place vacant at the School in year 3. Yet the panel concluded the admission of Mrs X’s child would cause prejudice which would not apply if her child had been a chorister. This was fault.
39. Mrs X’s child is in category 2 and there is a child on the waiting list in category 1. Therefore, I cannot say Z would have been awarded this place if not for the fault. However, the faults identified call into question the panel’s decision making and I cannot say what the panel would have concluded had it considered the appeal properly. This has caused Mrs X uncertainty over whether Z would have been awarded a place if the panel had considered the appeal properly. I have therefore recommended a fresh appeal.

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Agreed action

40. Within three months of the final decision the School has agreed to arrange a fresh appeal for Mrs X with a new panel and clerk. The appeal panel should have a copy of the Schools Adjudicator’s report of October 2022.
41. The School should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation. There was evidence of fault causing injustice which the School has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman