Summary: There was fault by the Council and the Independent Education Appeal Panel when it heard Miss X’s appeal against the Council’s decision not to offer her child a place at her preferred school. The Panel followed the wrong process and applied the wrong test when it decided the appeal. It is unlikely that had the Panel conducted the appeal hearing properly it would have admitted Miss X’s child but its shortcomings have caused confusion. The Council has agreed to review its guidance to Appeal Panels and relevant staff, and apologise to Miss X.

The complaint

1. Miss X complains about how the independent education appeal tribunal considered her appeal against the Council’s decision not to admit her child to her preferred school.
2. Miss X says that this has resulted in her child being offered a place at a school much further away and she has to travel there and back with her child and their younger sibling. Miss X says that she had to stop work temporarily to make the journey four times per day and this created a mental, physical and financial struggle.

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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 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. 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(1), as amended)

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How I considered this complaint

5. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

The law and guidance

7. The Education Act 1996 states a child reaches compulsory school age on the prescribed day following his or her fifth birthday. The prescribed days are 31 December, 31 March and 31 August.
8. The School Standards and Framework Act limits the size of infant classes (a class in which most of the children will reach the age of 5, 6 or 7 during the school year) to 30 pupils a teacher. The Appeals Code refers to these as infant class size (ICS) appeals. Panels can only uphold these appeals in limited circumstances.  
9. Admission authorities must provide parents with information on the limited circumstances in which an infant class size appeal can be upheld so they can make an informed decision about whether to submit an appeal. 
10. The Appeals Code says in an ICS appeal the panel must consider:

• whether the admission of an additional child or children would breach the infant class size limit; 
• 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; 
• whether the admission arrangements were correctly and impartially applied in the case in question; and 
• whether the decision to refuse admission was one which a reasonable admission authority would have made in the circumstances of the case. 

11. What is ‘reasonable’ is a high test. The panel needs to be sure that to refuse a place was “perverse” or “outrageous”. For that reason, panels rarely find an admission authority’s decision to be unreasonable. 
12. In limited circumstances, children can be admitted as exceptions to ICS limit.

What happened

13. Miss X applied for a primary school place for her child. The Council is the admission authority for the school and it refused the place. This was because Miss X lived further from her preferred school than the last child allocated a place for that year. The Council offered a place at a different school. Miss X appealed the Council’s decision. She said the school the Council had offered her was too far away and would mean her younger child would need to walk too far each day.
14. The Council arranged the Independent Appeal Panel. The school’s case for the Panel said that the school had reached its published admission number, and if it admitted any more children it would be prejudicial to the running of the school. The school also said that the Miss X’s child did not meet the criteria to be admitted as an exception to the ICS limit.
15. At stage one of the appeal hearing, the school presented its case. It said there are four classes of 30 children in this school year, the ICS limit applies and there are four teachers as well as classroom support staff, and the school year has reached its published admission number. The school also mentioned the size of the classrooms and communal area, the arrangements for lunchtimes, and pressures on toilet facilities.
16. The Panel found that the school had made its case that the year group was full, and that the admission of another child would prejudice the provision of efficient education at the school and breach the ICS limit. The clerk’s notes say the Panel gave its reasons as the class sizes, the demand on the school facilities, and the personal care demands of reception age children.
17. The Panel decided that the Council (as admission authority) had applied the admission criteria properly and that the decision not to admit Miss X’s child was not unreasonable.
18. At stage two the Panel considered Miss X’s individual circumstances. It said that despite her circumstances it would not allow the appeal because to admit her child would prejudice the education at the school and breach the ICS limit.
19. The Council issued its decision letter to Miss X. This correctly set out that the Panel has to consider the ICS limit, whether the Council had applied the admissions criteria properly, and whether the decision to refuse Miss X’s child was reasonable. The Council’s letter said that the ICS limit applied and to admit her child would prejudice the provision of education, and breach the ICS limit. The Council said the Panel considered Miss X’s case and listed her reasons for the appeal. Taking these into account, the Panel had decided that the decision not to offer her child a place at the school was reasonable.
20. Miss X complained to the Ombudsman. In the meantime, her child started at a different school. Miss X has described her difficult commute to get her child to school. However, she says they have settled into the school now and she will not move him even if we find fault by the Council in the admissions process.

Was there fault by the Council and the Appeal Panel acting on its behalf?

21. There was fault by the Council because it used both the test for year groups with the ICS limit, and the test for those without the ICS limit, to decide the appeal.
22. The ICS limit is based on the ratio of pupils to teachers. This means the size of the classrooms and the communal areas, and the needs of the children are not relevant. The school mentioned that there were four teachers, and so I can assume that this is one teacher to every 30 children. However, there is no clear evidence that the Panel established this, and it is crucial to do so in order to make sure that the ICS limit has been reached.
23. Once the ICS limit has been reached, the Panel could only admit another child, if the Council did not apply the admission criteria properly, the child’s circumstances meet one of the very limited exceptions for the ICS, or if the Council’s decision was unreasonable.
24. If the Panel decides that these reasons do not apply to the case, it should dismiss the appeal at that stage. It does not need to go onto consider whether admitting the child would prejudice the provision of efficient education. The Panel was wrong to do so in this case.
25. It is unlikely that had the Panel acted without fault, that it would have admitted Miss X’s child. It is most likely that the ICS limit had been reached and the Panel should have dismissed the appeal at the first stage. However, the Panel’s handling of the appeal is likely to have caused Miss X confusion and uncertainty.

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Action

26. The Council will within two months of the date of this decision:
• Apologise to Miss X for the confusion its shortcomings caused her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Review its guidance to Independent Appeal Panel members and clerks to ensue that the different process for ICS limit appeals is made clear, and remind them of the requirements of these appeals.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman