Summary: Mr D complained how the independent appeal panel dealt with his appeal for a place for his daughter at the School. We find the panel was at fault for failing to record why it was accepting late evidence. However, this fault did not cause Mr D a significant injustice.

The complaint

1. Mr D complained how the independent appeal panel dealt with his appeal for a place for his daughter (E) at the School (Yesodey Hatorah Senior Girls School). Mr D says the School was allowed to send in late evidence and the panel placed weight on matters the School did not raise. He also says the panel failed to have regard to relevant matters and it reached irrational and poorly reasoned conclusions.
2. Mr D says because of the faults in the way his appeal was handled, E was not awarded a place at the School and is now being home schooled. This has led to social isolation and upset for the family.

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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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. 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

6. I discussed the complaint with Mr F (Mr D’s solicitor who is dealing with the complaint on his behalf) and considered his views. I made written enquiries of the School and considered the information it sent in response.
7. Mr D, Mr F and the School had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

School admissions and appeals

8. 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.
9. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.
10. Appeals must be held in private and conducted in the presence of all panel members and parties. The admission authority must provide a presenting officer at the hearing to present the decision not to admit the child and to answer questions about the school’s case.
11. A clerk supports the appeal panel. Parents can submit information in support of their appeal. The clerk must send all papers required for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority. 
12. Panels must follow a two-stage decision making process. 
13. 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.  

14. 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 two of the process.
15. Stage 2: balancing the arguments. The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted.
16. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
17. The appeal panel must write to the appellant, the admission authority and the council with its decision and the reasons for it. The decision letter must be easy to understand and must contain a summary of relevant factors raised by parties and considered by the panel. It must also provide clear reasons for the panel’s decision.

What happened

18. This chronology gives an overview of key events and does not detail everything that happened.
19. Mr D applied for E to attend the School in November 2022. He sent the application one week after the deadline for applications had expired. This meant his application was processed after the applicants who had applied on time.
20. The admissions team from Mr D’s home authority emailed him in March 2023. It said E had been unsuccessful in securing a place at the School. It said there were more applications than places available and available places were offered to applicants who had a higher priority under the School’s published admissions criteria.
21. Mr F sent in a detailed appeal on Mr D’s behalf at the end of March. He said the School had failed to give an adequate reason for refusing E a place. He said the School had not provided any evidence to demonstrate offering E a place would prejudice the provision of efficient education or the efficient use of resources. He also said the School had not considered E’s sibling (G) attends the School. Finally, he said Mr D sent in a late application because his appeal against the School’s decision to reject G’s application was ongoing. Mr D applied for E’s place when the panel decided the School had to admit G.
22. An organisation (Organisation A) deals with admissions and appeals on the School’s behalf. Organisation A sent a letter which confirmed the time of the hearing. It said Mr D had five working days before the hearing to send in evidence by post.
23. Mr F emailed Organisation A and explained Mr D had not received the School’s written statement. He said it was not possible to meet the deadline to send in further evidence without seeing the School’s statement first.
24. Mr D received the School’s statement the following day. The School stated it could not offer further places and the year group was oversubscribed. It said it had increased the published admissions number (PAN) from 70 to 80. The PAN is the number of pupils in each year group the admission authority has agreed will be admitted. The School said its total population was expected to rise to an unprecedented 400. It said its communal areas and classrooms were full and going above the PAN would prejudice other pupils. It said it had engaged an architect to advise on classroom layout, and he confirmed the classrooms could only fit 24 occupants.
25. Organisation A emailed Mr F and agreed to postpone the hearing date. Mr F replied and said Mr D’s preference was for the original hearing date to go ahead. However, he asked for an extension for Mr D to send in further evidence. Organisation A replied and confirmed a panel member was no longer available and therefore it would reschedule the hearing to early June.
26. Mr F sent in further evidence and comments for the hearing. He said the School had not provided sufficient detail or evidence on the limitations in classroom size or communal areas. He provided a report from an independent architect Mr D employed to review the School’s plans. The architect stated the School was likely designed with a limit of 27 to 30 pupils per classroom.
27. Organisation A emailed Mr F a few days before the hearing. It provided a letter from the School’s architect. This said the classrooms were suitable for no more than 23 to 24 pupils at a time.
28. The panel heard the appeal. The School explained it had reached its capacity and it was struggling to function with the limited space it had. It said it could not increase the PAN. The panel asked the School questions about its admissions arrangements and whether one further child would make a difference. The School said its staff were already overburdened. It said its preferred PAN was 72, but it had agreed to take eight extra pupils. It said it could not take any more.
29. Mr D then presented his case. He said he applied to the School late because of G’s appeal and the School was aware of this. He said the School was the only one in the local area that could meet E’s religious needs. He said it was important E attended the same school as G.
30. Organisation A sent a detailed decision letter to Mr D after the hearing. It said:

• The panel considered there was no good reason why Mr D could not have applied to the School on or before the closing date. If Mr D had applied on time, E would have been allocated a place.
• The panel was satisfied the published admissions arrangements had been correctly and impartially applied.
• The panel was satisfied the admissions arrangements complied with the mandatory requirements set out in the School Admissions Code.
• The panel found admitting another child would be detrimental to the provision of efficient education or efficient use of resources within the School.
• The panel decided that Mr D’s case did not outweigh the prejudice to the School. It found the legislation did not create a right for Mr D to have his child educated at a particular school or in a particular manner. It also decided any other school could meet E’s educational, pastoral and other needs.

31. Mr F made a Freedom of Information request to the School the following month after the hearing. He asked for, among other things, information about the School’s capacity. The School responded to the request.
32. Mr F says the disclosure of the documents proves the School is under-capacity and can accommodate further pupils. He also says the School withheld relevant information from the panel. The School has rejected Mr F’s comments.

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Analysis

33. The Ombudsman’s role is to consider whether the appeal panel followed the School Admission Appeals Code.

Late evidence

34. Mr D says the School sent in late evidence which the panel relied on during the hearing. He says the School sent a letter from an architect to Mr F one working day before the hearing. He says it was an important letter because it contradicted the architect’s report he provided on the size and capacity of the classrooms at the School. He says he did not have a fair opportunity to interrogate the School’s further evidence and therefore the panel should not have relied on it.
35. The School says it sent the letter as a rebuttal to Mr D’s evidence. It says the letter did not introduce any new information.
36. The School Admission Appeals Code says admission authorities must set a timetable for organising and hearing appeals that includes reasonable deadlines for admission authorities to submit their evidence. It also says an appeal panel must decide whether any material not submitted by the specified deadline is to be considered, taking into account its significance and the effects of a possible need to adjourn the hearing.
37. In this case, the School sent the letter from the architect after the agreed deadline to send evidence. The School had referred to the letter from the architect in its statement, but it did not provide the actual letter by the agreed deadline. I would have expected the panel, in line with the School Admission Appeals Code, to have discussed whether it would allow the evidence because it was technically late. I cannot see any discussion of this in the minutes of the hearing. This is fault.
38. However, I do not consider this fault has caused Mr D a significant injustice. This is because the further evidence from the School simply backed up its written statement about its classroom sizes. Therefore, the School had not introduced a new argument Mr D was not aware of. The panel also considered a range of evidence, not just the architect’s letter, when it made its decision.

The panel placed weight on matters the School did not raise

39. Mr D says the panel placed high weight on the fact there were two pupils joining the year 7 cohort with Education, Health and Care (EHC) Plans. An EHC Plan is a legal document that describes a young person’s special educational needs and the support they need. He says the School had not previously relied on this.
40. The information about the EHC Plans was directly linked to the question of the School’s resources and whether it could admit further pupils. The School had provided information in its statement about the number of pupils with EHC Plans that were going to join the year 7 cohort. It is for the panel to decide what weight to give evidence and what information to consider. I do not find fault.

The panel failed to have regard to relevant matters and it reached irrational and poorly reasoned conclusions

41. Mr D says the panel failed to have regard to previous decisions in relation to the School which cast doubt on its assertions about prejudice. He also says the panel failed to consider the School’s previous decision regarding G.
42. The panel was right to focus its attention on the facts of E’s case, and not what happened in G’s case or how the School had behaved previously which was a different matter and unrelated to E’s appeal. I do not find fault.
43. Mr D says the panel stated there was evidence the School could not cope with numbers in excess of the PAN, but it failed to explain what this evidence was. The decision letter sets out in detail the School’s case and why it was struggling to cope with the number of pupils on roll. The panel considered these arguments and was satisfied admitting another child would be detrimental to the provision of efficient education or efficient use of resources. That was a decision it was entitled to take.
44. Mr D also says the panel failed to properly consider E’s religious needs cannot be met in any other school in the area. He adds the panel failed to properly engage with the conflicting evidence from his architect’s report and the School’s architect report about the School’s capacity.
45. The panel considered Mr D’s arguments about E’s religious needs. However, its view was the Human Rights Act 1998 states people have a right to an education, but this does not extend to securing a place at a particular school or being educated in a particular manner. That was a decision it was entitled to take, even if Mr D disagrees with it.
46. With regards to the conflicting architectural evidence, the panel quoted from the School Admission Appeals Code which states, “the panel must not reassess the capacity of the school but must consider the impact on the school of admitting additional children”. The panel was therefore not at fault for focussing its attention on whether admitting E would be prejudicial to the efficient education and efficient use of resources rather than undertaking a detailed analysis of the conflicting architectural evidence.
47. Finally, Mr D says the panel commented on the fact he only applied to the School. He also says the panel stated he could have avoided appealing if he applied to the School before the closing date. He says these considerations were outside of the panel’s remit.
48. Mr D said in his appeal the School failed to consider all relevant matters, including why he sent his application in late. The panel addressed this point and said in its view, there was no good reason why Mr D could not have applied on time, and if he had done so, E would have been allocated a place at the School. There was no fault in the panel specifically addressing a point Mr D raised in his appeal.
49. Mr D also explained in his appeal why he only applied to the School and why E could not attend another schools in the area. The panel was not at fault for considering whether this was reasonable and whether Mr D’s desire for E to be educated at the School outweighed prejudice to the School.

New evidence on the School’s capacity

50. Mr D says the new information from the Freedom of Information request proves the School is under-capacity and can accommodate further pupils. He says the School was not transparent about all the information it held about its capacity.
51. The School says to determine PAN and prejudice governors have to make their decision on a host of issues including timetabling and staffing. It says its capacity is only one element of this process.
52. The information Mr D refers to was not presented to the panel, and therefore it was not information it could consider before it reached a decision on Mr D’s appeal. Although there is some differing information about the minimum and maximum number of pupils the School could take, I am not satisfied if the panel had this information, it would have led to a different outcome in Mr D’s case. This is because the School’s capacity was only one part of the panel’s consideration. It is clear from the notes the panel considered a wide range of detailed issues. The panel was also clear its role was not to reassess the capacity of the School during the hearing.

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Final decision

53. I have completed my investigation. The panel was at fault for failing to record why it was accepting late evidence. However, this fault did not cause Mr D a significant injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman