Summary: We found fault on Mr B’s complaint about the appeal panel failing to properly consider his appeal against the decision to refuse his son a Year 4 place at his preferred school. We found fault in the decision making by the panel and with the clerk’s record keeping. The agreed action remedies the injustice caused.

The complaint

1. Mr B complains about the appeal panel failing to properly consider his appeal against the decision to refuse his son a Year 4 place at his preferred school; as a result, this caused him and his family a great deal of stress as he will not be attending the same school as his sister.

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The Ombudsman’s role and powers

2. 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)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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School admission and appeals: co-ordinated admission arrangements

5. Statutory guidance about school admissions and appeals can be found in The School Admissions Code and School Admission Appeals Code (the Code). Both are published by the Department for Education. 
6. 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.  
7. A school’s admission arrangements must also contain a Published Admission Number (PAN). 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.

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School Admission Appeals Code (October 2022)

8. The admission authority must supply the clerk to the appeal panel with all relevant documents needed to conduct the hearing in a fair and transparent manner and in accordance with the specified timetable. (paragraph 2.9)
9. The admission authority must provide a presenting officer to present the decision not to admit the child and to answer detailed questions about the case being heard and about the school. (paragraph 2.12)
10. The panel must ensure the decision sent following the hearing is easily comprehensible so the parties can understand the basis of the decision. The decision letter must contain a summary of relevant factors raised by the parties and considered by the panel. It must give clear reasons for the panel’s decision, including how and why any issues of fact or law were decided by the panel during the hearing. (paragraph 2.28)
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 2.29)
12. Under this Code, panels must follow the two-stage decision making process for all appeals except for infant class size appeals (paragraph 3.1 to 3.10):

First Stage: examining the decision to refuse admission:

13. The panel must consider the following for each child subject to an appeal:
1. whether the admission arrangements complied with the mandatory requirements of the School Admissions Code and Part 3 of the School Standards and Framework Act 1998; and
2. whether the admission arrangements were correctly and impartially applied in the case in question.
14. The panel must uphold the appeal at first stage where:
1. it finds 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; or
2. it finds the admission of additional children would not prejudice the provision of efficient education or efficient use of resources. (paragraph 3.5)
15. The panel must go the second stage where: it finds the admission arrangements complied with admissions law and that they were correctly and impartially applied to the child; or finds the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that if they had, and been correctly and impartially applied, the child would not have been offered a place; and it finds the admission of further children would prejudice the provision of efficient education or efficient use of resources. (paragraph 3.7)

Second Stage: balancing the arguments:

16. The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted to the school. It must take account of the appellant’s reasons for expressing a preference for the school, including what the school can offer the child that the allocated or other schools cannot. If the panel considers the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
17. It must consider the impact on the school of admitting further children.

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How I considered this complaint

18. I considered all the information Mr B sent, as well as the Council’s response to my enquiries on this complaint. I sent a copy of my draft decision to Mr B and the Council. I considered their responses.

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What I found

19. Mr B appealed the admission authority’s (the Council) decision to refuse his son, C, a place at his preferred school in Year 4. The Council said the school was full and suggested he remain at his current independent school. It also suggested he let it know if he wanted it to consider C for other schools with places. The Council gave him information about joining school waiting lists.
20. In his appeal submissions, Mr B explained the preferred school was close to home and his daughter already went to it. He explained why C could no longer go to the independent school. As both parents worked, and have another child at secondary school, it would be difficult for them to get each child to a different school.
21. In the Council’s appeal submissions, it noted:

• the PAN for Year 4 was 60. Although it said one class had 30 pupils, and the other class had 31, it gave the total for the age group as 60, and not 61. It also gave the total number on the roll as 417 when it was 421. The Council said this was a typing error for which it apologised but maintained the panel was clear there were 61 for this age group.
• it gave the maximum workplaces for each Year group as 63 and the minimum as 57.
• additional admission would cause problems because, ‘There are significant behaviour concerns in Year 4 and going over 30 would not be conducive to support this’. The Council said it had given the number of pupils in the Year group with an Education Health and Care Plan (EHCP) (1), those with SEN support with no EHCP (6), and a child who would qualify as Looked After (1). The clerk explained the presenting officer was the Head of Service at the Council and not the Headteacher. This meant he could not provide any extra information during the hearing.
• there was a question in its submissions about any current Health and Safety issues and any impact on them from additional admissions. The response was ‘N/A’ (not applicable).
• another question in its submissions asked whether additional admissions would lead to infant classes of more than 30, either now or in the future. The Council replied ‘Yes’. This was a Year 4 application so it is unclear from the information why this would lead to higher infant class sizes or why it was relevant to this appeal.
• further admissions over the PAN would be prejudicial to efficient education as it would impact on the quality of provision and the internal organisation of the school and teaching group size. This was a generic statement as it said it believed the admission of additional pupils to ‘schools’ which have reached their PAN would have a negative impact on the experience for all pupils. This statement was not, therefore, specific, to this school.

22. The clerk’s notes record:

• Under Stage 2, typed notes record the panel considering the numbers on the roll being over the PAN. It listed four points the panel considered: the effect on current and future year groups: changes to the school’s accommodation since the setting of the PAN; the impact of the Fair Access Protocol; the impact on classes, teaching staff, and children already at the school. The clerk recorded it had been considered, as described in the Council presentation.
• The panel was satisfied the numbers on the roll, ‘both in social and curriculum settings’ showed it was under strain to take extra pupils. On this basis, the panel was satisfied prejudice was proved. The clerk explained the panel was only able to consider prejudice on the grounds presented in the evidence section of the Council’s written submissions.
• The panel asked about the capacity assessment and why the Year could not take 63 pupils. The presenting officer said this assessment included all possible teaching spaces. Sixty was manageable for the Year group and referred to general spaces. The clerk’s notes confirmed the actual number on the roll was 61.
• The panel asked about the behaviour concerns and was told this was more difficult for teachers to manage difficulties. They recorded the school was ‘already over with behave issues’. In response to my enquiries, the clerk said the evidence the Council gave in support of this statement was about the number of pupils with EHCPs. There was no additional information given in support of the Council’s claim about behavioural issues and this could not be clarified as there was no staff present from the school.
• The presenting officer said there were other options available to Mr B in the area he lived, but no information about them was given. In response to our enquiries, the clerk said the presenting officer confirmed there were places available for C, and his sibling, at two other schools. This information was not recorded in the clerk’s notes.
• In the section recording the decision, it noted there were alternatives which the family were aware of which included family help (logistics and financial). This is not referred to either in the submissions from Mr B nor in the clerk’s notes about his verbal submissions to the panel.
• While the panel understood C could walk to the school with his sister this was not enough given the school situation of ‘High SEN (+) + already over with behave issues’.

23. The clerk sent the panel’s decision by letter to Mr B which referred to its consideration of prejudice at the first stage of the hearing. It said the panel took account of the Council’s view in its submissions that increased class size has a detrimental impact on pupils already on the roll, overcrowding affects the quality of teaching and learning in groups, the increased health and safety risk, and pressure on existing space and facilities when moving around school. The last two were not issues the Council had made written submissions on.
24. In response to our enquiries, the Council confirmed there were places available for C and for his sister at two alternative schools. This information was not recorded in the clerk’s notes of the hearing. Nor was it given in the Council’s submissions.

My findings

25. I make the following findings on this complaint:
1. The Council’s submissions gave incorrect information about the total number in each class for each Year and for the total number of pupils on the roll for the school. While this error amounts to fault, I am not satisfied it caused Mr B an injustice. This is because the clerk recorded the correct information was given to the panel at the hearing.
2. At the first stage of its consideration, the clerk’s typed notes refer to the panel considering the effect on current and future years by admitting C. I am not satisfied there was evidence of the panel considering the impact on current and future years. This is fault because:

• nothing was recorded in the clerk’s notes about the panel doing this and nor were there any details about the impact on current and future classes, teaching staff, and children already at the school in the Council’s submissions;
• there was nothing in the records which referred to the impact on teacher/pupil ratios in other Year groups, for example;
• there was no information about SEN staff in the classrooms;
• there was no information about the impact on any specialised rooms used, such as for art or PE, for example; and
• there was no evidence of the panel exploring any of this with the presenting officer.
3. The clerk’s notes said the panel considered changes to the school’s accommodation since the last change to the PAN. The clerk’s notes show the Council did not put forward any evidence or information about this at all. I am not satisfied, therefore, that the panel considered this as claimed. This is fault.
4. The Council’s submissions about the pressure a further admission would cause gave very little detail and no evidence in support of its claim. It said going over 30 put pressure on resources such as staffing, especially where there are high needs in the Year. Although the panel did not have this information before it, based on the school’s own figures for this Year group, the number with SEN support in this Year was below the national average for England for 2022/23.
5. It also referred to significant behaviour concerns in Year 4, but failed to explain what these were. The clerk’s handwritten notes show the panel asked about this claim, but the presenting officer merely said it was more difficult for teachers to manage. The presenting officer was the Head of Service, not the Headteacher, for example, and no member of staff from the school was present to give details.
6. Unless the panel was prepared to adjourn the hearing, this meant it only had the written submissions from the Council and the information the presenting officer had been briefed on and could give. I am not satisfied the panel explored the Council’s claim about behavioural problems. The presenting officer was not able to answer detailed questions about the case which was a breach of the Code (paragraph 2.12). This is fault.
7. The Council submissions said additional admissions would lead to infant classes of more than 30 now or in future years. There was no information about why this was relevant to this application or why it would have such an impact anyway. While this is irrelevant information, there was no evidence of the panel considering it or taking it into account when reaching its decision.
8. The Council submissions said ‘Not applicable’ when responding to a question about current Health and Safety issues and any impact on it by further admissions. The submissions confirmed there was no pressure on common areas such as toilets, canteen, or corridors. There was nothing in the notes to show this was queried, considered, or assessed by the panel in relation to the prejudice the school was claiming. I consider this is fault. The panel failed to consider and explore whether the lack of such pressure was relevant to the prejudice argument. This is fault.
9. The Council submissions noted C was to remain at his current school and so no alternative school was offered. In response to our enquiries, the Council said there were places available for C, and his sibling, at two schools. This information does not appear in the Council submissions. The clerk’s notes said the presenting officer summed up by saying there were other options in the area. No details were given. The clerk’s notes, under the recording of the panel’s decision, only said there were alternatives. They do not state what these were or what information was before the panel when it reached its decision. The notes do refer to help with family for money and logistics. This information was not recorded as part of Mr B’s submissions either in writing or verbally to the panel. The failure to properly record what was said about alternatives is fault.
10. The clerk’s notes also refer to the panel being satisfied the school was under strain both in ‘social settings and curriculum settings’. There was no information about either in the Council’s written or verbal submissions. Nor was there evidence showing how the panel explored and considered this claim. These failures are fault.
11. The clerk’s notes record the decision of the panel. They state while the panel understood Mr B’s reasons for wanting C at the school, ‘but not enough given sch sitn High SEN (+) & already over with behave issues’. This showed the panel weighed up the submissions from Mr B against the prejudice that would be caused. While as already noted, the SEN high needs were not particularly high, the panel was also persuaded by the claim about behavioral issues when deciding prejudice. Again, as already noted, there was no supporting evidence or information given by the Council in either its written or verbal submissions about behavioral issues beyond saying they existed. On balance, therefore, I am not satisfied the panel properly considered the balancing of the prejudice against Mr B’s submissions. This is fault.
12. The decision letter said what the panel considered when looking at prejudice. At the first stage of the hearing, it noted the Council’s view that increased class sizes have a negative impact on other pupils on the roll, and overcrowding affects the quality of teaching and learning in a group, increases health and safety risks, and puts pressure on existing space and facilities when pupils move through the school.
13. These written submissions were generic from the Council and not specific to this school and what would happen if it were to admit this child. The panel, therefore, accepted prejudice would be caused even though the Council had not submitted any specific information in support. This is fault.
14. I am satisfied the identified fault caused Mr B an injustice. This is because he has the uncertainty of not knowing whether the outcome of the appeal would have been different but for these failures.

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Agreed action

26. I considered our guidance on remedies.
27. The Council agreed to take the following action within 4 weeks of the final decision unless otherwise stated:
1. Send Mr B a written apology for the failings identified.
2. Arrange a rehearing of this appeal with a different appeal panel as soon as possible.
3. Remind the clerk about the need to make accurate and more detailed records of appeal hearings.
4. Provide training to the panel about the consideration of evidence and reaching decisions on prejudice.
5. Act to ensure on future appeals, the presenting officer has sufficient information to allow for detailed answering of questioning by panels.
6. Act to ensure on future appeals, the Council as admission authority provides submission statements with fuller, relevant information.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I found fault on Mr B’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman