Summary: Miss B says the appeal panel failed to properly consider her school admissions appeal. There was fault in how the appeal panel approached stage one but that did not affect the outcome of the appeal. A reminder to appeal panel members and clerks is therefore satisfactory remedy.

The complaint

1. The complainant, Miss B, complained the appeal panel failed to properly consider her school admissions appeal.
2. Miss B says as a result her daughter attends a school she is unhappy with and which does not provide her with suitable support.

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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 an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (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. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Miss B and the organisation 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

The school admission appeals code

7. The school admission appeals code (the code) sets out the two stages to considering school appeals.
8. At the first stage the panel must consider the following matters for each child that is the subject of an appeal:
1. whether the admission arrangements (including the area’s co-ordinated 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.
9. The panel must then decide whether admitting more children would prejudice the provision of efficient education or the efficient use of resources.
10. The panel must uphold the appeal at the 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 received an offer of a place if the arrangements had complied or had been correctly and impartially applied; or
2. it finds the admission of more children would not prejudice the provision of efficient education or efficient use of resources.
11. The panel must proceed to the second stage where:
1. it finds the admission arrangements did comply with admissions law and they were correctly and impartially applied to the child; or
2. it finds the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that, if they had complied and had been correctly and impartially applied, the child would not have received an offer of a place; and it finds the admission of more children would prejudice the provision of efficient education or efficient use of resources.
12. At the second stage 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 consider the appellant’s reasons for expressing a preference for the school, including what that 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.
13. Whilst the panel must consider the school’s published admission number, the admission authority must be able to demonstrate prejudice over and above the fact 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 more children. In reaching a decision as to whether there would be prejudice the panel may consider the following factors:
1. what effect an added admission would have on the school in the current and following academic years as the year group moves through the school;
2. whether any changes have been made to the school’s physical accommodation or organisation since an admission number was originally set for the relevant year group;
3. the impact of the locally agreed Fair Access Protocol;
4. the impact on the organisation and size of classes, the availability of teaching staff, and the effect on children already at the school.

Analysis

14. Miss B says the appeal panel failed to properly consider her school admissions appeal. Miss B says as her daughter does not need lots of special educational needs help that would take away from others there was no reason for the appeal panel to refuse her appeal. Miss B also says the appeal panel failed to consider the fact the school is not at capacity when refusing her appeal.
15. The appeal panel has to follow the process set out in paragraphs 8-13. The first stage of that process is for the appeal panel to consider whether the school’s oversubscription criteria and admissions arrangements complied with the mandatory requirements, were correctly and impartially applied in Miss B’s case and whether the school had proved prejudice if another child were admitted.
16. The letter setting out the reasons for the appeal panel’s decision said the panel was satisfied on those points. However, the notes from the appeal panel hearing for stage one refer only to whether the school had made its case on prejudice. The notes do not refer to any view the panel took about whether the oversubscription arrangements and admissions arrangements complied with the mandatory requirements. Nor do the notes refer to whether the panel was satisfied the admissions arrangements had been correctly and impartially applied in Miss B’s case. That is fault.
17. I have seen no evidence anyone has challenged whether the oversubscription criteria and admission arrangements for the school comply with the mandatory requirements though. Nor is there any suggestion Miss B’s daughter would have secured a place at the school if the Council had applied the admissions arrangements correctly. That is because Miss B applied for a place for her daughter at the school during the year, by which time the year group was already full.
18. The appeal panel then had to consider if the school had shown prejudice if another child was admitted. Miss B says the appeal panel failed to consider that the school is not full overall when considering prejudice. I am satisfied the school mentioned that in its representations to the appeal panel. The notes from the decision making part of the meeting also record panel members noted the school was not full overall. Panel members nevertheless considered the school had shown prejudice would result if it admitted a further pupil as the year group appealed for was full and 30% of its pupils had special educational needs. I therefore could not say the panel failed to consider the overall position of the school or say it failed to consider prejudice properly. That means I cannot criticise it for the decision about whether the school had demonstrated prejudice.
19. So, while it was fault for the panel to fail to consider the first stage of the process properly I do not consider those errors affected the overall decision. I would, however, recommend the Council remind those sitting on appeal panels and those that clerk panels of the need to ensure the first stage of the process is properly considered and recorded. As I consider it unlikely Miss B’s appeal would have succeeded at the first stage given the finding on prejudice I have gone on to consider whether there was any fault in the panel’s consideration of the second stage.
20. The second stage of the process is where the panel balances the arguments from the school about its capacity with the arguments put forward by Miss B as part of her appeal. The appeal panel must decide whether the appellant has put forward reasons which would outweigh any prejudice to the school.
21. The evidence I have seen satisfies me the appeal panel properly considered the second stage of the process. I say that because the notes from the appeal panel hearing show the panel considered the arguments Miss B put forward but did not consider those arguments outweighed the prejudice to the school of admitting another child in the year appealed for.
22. Miss B says the panel failed to consider the fact her daughter would not take up much space at the school as she is a small child and does not require much special educational needs help which would take away from others. Having considered the written appeal Miss B put in and what she said at the appeal panel hearing I have seen no evidence she raised those specific points. I cannot criticise the appeal panel for failing to consider something which Miss B did not raise in her appeal. I am satisfied though the appeal panel considered the arguments Miss B set out in her written appeal and what she said at the appeal panel. I therefore have no grounds to criticise the Council.

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Recommended action

23. Within one month of my decision the Council should remind those sitting on appeal panels and those that clerk panels of the need to ensure the first stage of the process is properly considered and recorded.

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Final decision

24. I have completed my investigation and found fault by the Council in part of the complaint which caused Miss B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman