The Ombudsman's final decision
Summary: The Ombudsman will not investigate Mr X’s complaint that the Council’s Schools Admissions Appeal Panel failed to provide his child with a place at School Y. It is unlikely the Ombudsman would find fault which caused them to lose out on a school place.
The complaint
The complainant, whom I shall call Mr X, says the Council’s Schools Admissions Appeal Panel did not properly consider his appeal for a place for his child, D, at School Y.
The Ombudsman’s role and powers
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 a 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) We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe: it is unlikely we would find fault, or the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended) We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mr X and the School.
I considered the Ombudsman’s Assessment Code.
My assessment
Background information Mr X applied late for a place for his child, D, to start in September 2022 in reception at School Y. An elder sibling attends there. It is not their catchment school nor is it their nearest school.
All the 30 places for September 2022 in reception were allocated under the published admission criteria to those that applied on time. The last place went to an applicant who lived further away from the school than Mr X and did not have a sibling at the school. D was offered a place at School Z which is less than two miles travelling distance from their home.
Mr X appealed the decision not to award a place at School Y for D, to an Independent Appeal Panel. Mr X attended the appeal in July 2022. Mr X told the Appeal Panel that they: Had not submitted the application late as it was not on their radar to apply. They had health issues with a new baby and were moving home; Could not get two children to two different schools; Were worried about D’s mental health now they were not going to School Y where they had attended the nursery.
The Appeal Panel refused Mr X’s appeal and he complained to us. He says: An appeal panel member was rude; They have not been offered an accessible school and so the Fair Access Protocol should apply; The appeal started later than they expected; The appeal panel did not take their child’s mental health seriously; There were now only 29 in the class; The Council and school should have done more to communicate the need to apply to them.
Analysis The appeals panel’s and Ombudsman’s role Independent appeal panels must follow the law when considering an appeal. The law says the size of an infant class must not be more than 30 pupils per teacher. There are only limited circumstances in which more than 30 children can be admitted. These are called excepted pupils.
There are special rules governing appeals for Reception and Years 1 and 2. Appeals under these rules are known as “infant class size appeals”. The rules say the panel must consider whether: admitting another child would breach the class size limit; the admission arrangements comply with the law: the admission arrangements were properly applied to the case: the decision to refuse a place was one which a reasonable authority would have made in the circumstances.
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 in light of the admission arrangements.
If the Panel decides the reasons for granting a place on appeal have been met, then that extra child becomes an ‘excepted’ child for the infant class size rules. It means the school can go over 30 and not breach the law.
We cannot question the decision if it has been properly taken. If the Panel has been properly informed, and used the correct procedure, then it is entitled to come to its own judgment about the evidence it hears.
The appeal in this complaint The Appeal Panel decided that admitting another child would breach the infant class limit for the school year 2022/23. There will be 30 pupils per teacher. A school can only admit more than 30 pupils per teacher if the extra pupils are classified as excepted pupils. D does not meet the criteria as an excepted pupil.
The Appeal Panel considered the admission arrangements and decided they complied with the law.
The Appeal Panel was also satisfied that the admission arrangements had been properly applied in this case. Mr X applied late by which time the school year was full. This is not disputed. It is the parents’ legal responsibility to ensure their child receives an education.
The Appeal Panel did not consider the Fair Access Protocol. This is the correct approach. School Y is a mainstream state primary school within the statutory walking distance of two miles from Mr X’s home. The Fair Access Protocol does not therefore apply.
The Appeal Panel’s decision letter records the reasons Mr X presented at the Appeal Panel for wanting a place. It is clear the Appeal Panel considered Mr X’s reasons for wanting a place and decided the decision to refuse a place was one which a reasonable authority would have made in the circumstances and in light of the admission arrangements. Mr X provided no evidence to support his mental health claims.
It is unlikely we would find fault in the Appeal Panel’s decision. The information I have seen supports the Appeal Panel’s decision.
The Appeal Panel started according to Mr X’s account 45 minutes later than the 11 am time notified in the invite letter. This is not best practice, but is not a reason for the appeal to be reheard.
Mr X was clearly upset by the words used and actions of one appeal panel member. We could not investigate a complaint about his perception of words or actions. In addition, even if proved it is not a reason to hold a new appeal.
If there was a spare class place at the date of the appeal, that has to be offered to the person at the top of the waiting list.
Final decision
The Ombudsman will not investigate this complaint. This is because it is unlikely we would find fault which has caused them to lose out on a school place.
Investigator's decision on behalf of the Ombudsman