Summary: The complainant (Miss K) complains the Governors failed to properly consider her appeal against its school’s decision to not admit her son. Miss K complained the appeal process was delayed and failed to properly consider her son’s specific needs. We found the appeal failed to consider, record, and decide issues which are mandated by the School Admission Appeals Code. The appeal was also not heard within the required timeframes. These faults have caused Miss K uncertainty and frustration, and prevented a fair appeal. The Governors have accepted our recommendations in order for it to put right the injustice caused.

The complaint

1. The complainant (Miss K) complains the school admission panel failed to properly consider her appeal against the decision to deny her son (Young Person X) a place at St Richard's Catholic College (the School). The governing body is responsible for admissions to the School, and appeals. Miss K alleges:
1. The appeal process was not carried out and considered correctly.
2. There was a failure to hear the appeal within the required timeframe.
3. The appeal panel incorrectly regarded the School as being oversubscribed because a place recently became available after a pupil left.
4. The appeal process failed to properly consider Young Person X’s specific circumstances and needs, including his social experiences and mental health.
2. In summary, Miss K says the alleged fault has had a significant and adverse impact on Young Person X’s mental health and emotional wellbeing. She says the appeal outcome unfairly denies Young Person X a supportive and values-aligned mainstream school which can best meet his needs. As a desired outcome, Miss K wants a new appeal hearing with a different panel to reconsider the appeal.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way a school admissions appeals panel made its decision. If there was no fault in how the panel made its decision, we cannot question the outcome. 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).
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 information provided by Miss K and the School’s governing body. I also considered relevant legislation, guidance and applicable codes of practice.
6. Both Miss K and the Governors had an opportunity to comment on my draft decision. All comments received were considered before making a final decision.

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My Findings

Applicable Legislation, Guidance and Codes of Practice

7. All schools must have admission arrangements that clearly set out how they will admit children, including the criteria they will apply if there are more applications than places at the school (oversubscription criteria). Admission authorities must set their admission arrangements each year, and take into account relevant legislation and guidance.
8. The right of parents or carers to appeal against a school admission authority’s decision to refuse admission is set out in legislation and statutory guidance.
9. Section 94 of the School Standards and Framework Act 1998 sets out a right of appeal against a decision not to admit a child to their preferred school. This section places the responsibility for making arrangements for appeals against the refusal of a school place with the admission authority of the school.
10. The Department for Education issues statutory guidance about school admissions which require the arrangements and conduct of appeals must comply with:
1. The School Admission Appeals Code (most recently updated 1 October 2022), which is statutory guidance that admission authorities and independent appeal panels must follow.

2. The School Admissions (Appeal Arrangements) (England) Regulations 2012, which set out further requirements for the constitution and operation of panels.

11. These provisions ensure that independent appeal panels are a statutory tribunal, and both the admission authority and the panel must act in accordance with the law and the School Admission Appeals Code. The following parts of that Code are relevant to the issues in this complaint:
1. Section 2.3 Timescales: Admission authorities must ensure that appeals lodged by the appropriate deadlines are heard within the following timescales:

• For applications made in the normal admissions round, appeals must be heard within 40 school days of the deadline for lodging appeals.
• For late applications, appeals should be heard within 40 school days from the deadline for lodging appeals where possible, or within 30 school days of the appeal being lodged.
2. Section 2.9 Documents: 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. This must include details of how the admission arrangements and the co-ordinated admissions scheme apply to the appellant’s application, the reasons for the decision to refuse admission and an explanation as to how admission of an additional child would cause prejudice to the provision of efficient education or efficient use of resources.

3. Section 3.10 Consideration of Prejudice: Whilst the panel must take into account the school’s published admission number, the admission authority must be able to demonstrate prejudice over and above the fact that the published admission number has already been reached. The panel must not reassess the capacity of the school, but must consider the impact on the school of admitting additional children. In reaching a decision as to whether or not there would be prejudice, the panel may consider the following factors:

• The impact an additional admission would have on the school in the current and following academic years.

• Whether any changes have been made to the school’s physical accommodation or organisation since an admission number was first set.

• The impact of the locally agreed Fair Access Protocol.

• The impact on the organisation and size of classes, the availability of teaching staff, and the effect on children already at the school.

Two-Stage Appeal Process

12. For in-year admission appeals, the appeal process follows the same legal framework and structure as appeals for entry at the normal admission round (Year 7). For in-year admission appeals (except for infant class size cases), Sections 3.7 to 3.8 of the Code requires appeals to be conducted in two stages:
13. Stage One: The admission authority presents its case, explaining why a place was refused. The panel considers whether the admission arrangements were lawful and correctly applied, and whether admitting another child would prejudice the provision of efficient education or the efficient use of resources. If the panel is not satisfied the admission arrangements were not lawful or correctly applied, or that admission another child would cause prejudice, the appeal is automatically successful, and the child must be offered a place. The process ends at this stage, and no further arguments or evidence are required.
14. Stage Two: If the panel is satisfied with the authority's case, the appeal hearing moves to stage two. At this stage, the parent/carer present their individual reasons for wanting a place at the school. The panel must balance these reasons against the school’s case. If the parent’s reasons outweigh the prejudice to the school, the appeal is upheld and the child or young person must be admitted.

Regina (Hounslow London Borough Council ) v The School Admission Appeal Panel for Hounslow London Borough Council [2002] EWCA Civ 990

15. In Hounslow, the Court of Appeal makes clear that the admission authority must provide a credible and specific explanation as to how admitting an additional child would prejudice the provision of efficient education or the efficient use of resources. The authority’s case must go beyond generic statements, it must detail the actual impact on the school’s operation and resources.
16. "A local education authority opposing an appeal will need to explain their admission arrangements, explain their particular problems in relation to the school in question, and show that, unfortunate though it may be, it was objectively fair not to admit the child in question” — May LJ, [2002] LGR 501 at 528.
17. "Appeal panels are obliged to take appropriate account of procedural or substantive errors, if they are relevant to the question they have to determine. This may readily apply to relevant errors which are established or self-evident” — [2002] LGR 501 at 527.

What Happened

18. In October 2024, the Governing Body notified Miss K that her application for Young Person X to attend The School had been rejected. She promptly appealed the decision.
19. In February 2025, Miss K was notified of the appeal hearing date. This was scheduled to take place at the end of that month. Two weeks after the hearing, Miss K received a letter from the Governing Body that her appeal had been unsuccessful.

My Assessment

Appeal Timeframes

20. The Code requires the School’s governing body, as the admissions and appeal authority, to have made arrangements for Miss K’s appeal to be heard by an independent panel within 30 school days of this being made. Miss K submitted the appeal on 5 November 2024. Considering the School’s term dates, the appeal should have been heard by 18 December 2024. The appeal was not heard until 5 February 2025, which amounts to a delay of 7 weeks. This delay was fault.

Document Outlining Prejudice Case

21. In accordance with section 2.9 of the Code, the School’s Governing Body must provide the clerk to the appeal panel with documents which includes an explanation as to how admission of an additional child would cause prejudice to the provision of efficient education or efficient use of resources (known as a ‘prejudice case’). I asked the School’s Governing Body to provide me with a copy of the document which includes its prejudice case and was provided with a Governors Statement which was provided to the clerk of the appeal panel and Miss K when it wrote to her in February 2025 to notify of the decision to refuse Child X admission to the School.
22. The Governors Statement provides background information about the School, the composition of pupils on its roll as of September 2024 and a number of the challenges it faces. This includes being oversubscribed, increased numbers of children with special educational needs who require greater support and insufficient infrastructure and teaching spaces to deal with the number of children on the roll. It concludes that, for those reasons, “why the admission of a significant number of children would be prejudicial to the provision of efficient education and use of resources to those pupils already enrolled at the school.”
23. Though the Governors Statement does set out the challenges it faces in a way I would expect and consider appropriate, I consider it could have done more to explain how the admission of an ‘additional’ child would be prejudicial to the school. This is because the Code requires the prejudice case to explain why the admission of “an additional child” (such as Child X) would prejudice the provision of efficient education and use of resources, and the Governors Statement only makes the case that the admission of a “significant number of children” would be prejudicial. In other words, it does not specifically conclude nor argue that the admission of Child X would be prejudicial. That said, I do not consider this issue is serious enough to make a finding of fault, although I would encourage them to reflect on its approach for future appeals.

The Appeal Hearing

24. Turning to the hearing and the panel’s consideration of Miss K’s appeal, I first considered whether it properly applied the Code’s first test, as outlined at Paragraph 14 (above). In addition to deciding whether the admissions criteria are lawful and were correctly and impartially applied, this requires the panel to determine whether the admissions authority has made its prejudice case, that is to say that to admit further children at the School would prejudice efficient education or the efficient use of resources. If the panel does not accept the prejudice case has made out, then the appeal must be upheld.
25. The panel first heard from the School’s headteacher who set out the prejudice case. The clerk’s notes show the panel took account of the school already being oversubscribed and that its physical building was old and lacked space. The panel considered this impacted all year group assemblies, pupil dining and caused busy and hectic corridors. .
26. Having considered the governing body’s case, the notes of the clerk show the panel immediately proceedings to the Code’s second test. Before doing so however, it must first determine at the first stage whether the prejudice case has been made. I see no evidence that the panel made this determination which is central to the appeal process. That the School is “too full” and there are a “disproportionate number” of pupils with SEN is insufficient. The panel’s determination must identify actual impact on its operations and resources in order to show it was objectively fair not to admit Child X. I do not consider the panel did this and I therefore find fault by the School’s governing body given it is the authority responsible for the appeals process. In making this finding, I also considered the absence of any document outlining the school and/or school’s prejudice case.

Clerk Decision Letter

27. I have read the School’s governing body’s letter to Miss K confirming the outcome of the appeal which is signed by the panel’s clerk. This is intended to set out what the panel considered and why it made the decisions it did. The letter however introduces a number of issues which do not reflect the notes of the appeal hearing. The letter clearly states the panel had to consider the prejudice case and took account of a range of factors which impedes efficient education and/or the efficient use of resources. This included that oversubscription was impacting on teaching quality, strained resources, pressure on pastoral care and a lack of facilities. The notes of the clerk do not support this view, or that such matters were considered by the panel. The decision letter is considerably more detailed and does not correspond with the notes. Appeal decision letters must reflect the actual points considered by the panel which led to its decisions. The evidence shows a mismatch in this respect and so I find fault.

Young Person X’s Needs/School Oversubscribed

28. I recognise Miss K specifically complained that Young Person X’s needs were not properly considered. She also disputes that the School is actually oversubscribed. While I appreciate these concerns, these areas of complaint are not supported by the available evidence. The clerk’s notes do show the panel having given considerable attention to Young Person X’s needs, particularly in the areas Miss K raised in her appeal documents. I further note that the panel did ask Miss K to elaborate on his needs and that her responses were recorded and considered. With respect to the School being oversubscribed, its Published Admission Number (PAN) for Year 7 is 200 pupils. At the time of Miss K’s appeal, there were 207 students on the roll in that year group. My finding is that the School is oversubscribed, and it maintains a waiting list for prospective students.
29. I did not find any evidence of fault in respect of these issues. This finding however does not change my preliminary decision that there were procedural failings in the appeals process. I consider these failings prevented Miss K and Young Person X receiving a fair appeal and due process. I am satisfied they have suffered a significant injustice and that this has been compounded by earlier fault with respect to the delay in hearing the appeal.

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Agreed Actions

30. To remedy the injustice caused, I recommend the School’s governing body take the following actions and within the timeframes specified:
1. Within one week of this final decision, the School’s governing body will provide Miss K and Young Person X a written apology which acknowledges the fault and injustice identified in this statement. This should set out how it intends to learn from the findings of our investigation and any proposed actions regarding service improvements.
2. Within 30 days of this final decision, the School’s governing body will arrange a fresh appeal for Miss K with a new panel and clerk. It will also remind all clerking staff of the need to clearly record how the panel reached its decisions and the reasons for the decisions at both stages of the appeal process and in the decision letter.

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Final decision

31. The failures to properly consider and determine issues which are mandated by the Code resulted in a procedurally flawed appeals process and decision. This caused an injustice and I uphold this complaint.

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Investigator's decision on behalf of the Ombudsman