Summary: Ms X complains that the Council wrongly refused her application for a place at a school for her child and the Independent Appeal Panel did not properly consider her appeal. The appeal panel was at fault as it did not properly consider Ms X’s appeal which caused uncertainty to her. The Council has agreed to remedy this injustice by apologising to Ms X.

The complaint

1. Ms X complains that the Council wrongly refused a place for her child at a school and the Independent Appeal Panel did not properly consider her appeal. Ms X considers that as a result her child was wrongly denied a place at the school.

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The Ombudsman’s role and powers

2. 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)
3. 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 have:

• Considered the complaint and the information provided;
• Made enquiries of the Council and considered the information provided;
• Invited Ms X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

7. 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.
8. All schools must have a set of admission arrangements containing oversubscription criteria. The school’s admission authority uses these to decide which children will receive an offer of a place if there are more applications than places available. The school’s admission authority sets the admission arrangements.  
9. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.  
10. Appeal hearings must be held in private and conducted in the presence of all panel members and parties. Appeal panels must act according to the principles of natural justice. 
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. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions. 
13. Appeal panels must either uphold or dismiss an appeal and must not uphold an appeal subject to any conditions. Appeals must be decided by a simple majority of votes cast. A panel’s decision that a child shall be admitted to a school is binding on the admission authority concerned. 
14. Panels must follow a two-stage decision making process. 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.  

15. 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 of the process. 
16. The School Admission Appeals Code provides that when considering prejudice, the panel must take into account the school’s published admission number but the admission authority must be able to demonstrate prejudice over and above the fact the published admission number had been reached.
17. 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.  
18. The clerk to the panel must write to the appellant, the admission authority and the council with the panel’s decision and reasons. 

Council’s admissions policy

19. The Council has a category for highly exceptional medical or other reasons in its oversubscription criteria for its schools. In very limited circumstances an applicant might be considered to have highly exceptional reasons for wanting a place at their preferred school. Applicants should indicate this on the application form and provide written evidence from a professional to demonstrate the preferred school is the only school that could cater for the child’s needs.
20. The Council’s admission policy states that in year applications received outside the normal admissions round will be offered places if available. If there are more applicants than places then the published oversubscription criteria will apply.

What happened

21. Ms X applied for a place for her child, Y, at school A. Ms X said on the application form that she was having difficulty in getting Y to their current school on time due to traffic. She did not indicate there were any highly exceptional reasons for Y to attend the school. School A had a place available at the time of Ms X’s application.
22. The Council refused a place for Y at school A as it had received another application for the place. It subsequently offered the place to that child as they had a higher priority under the oversubscription criteria.
23. Ms X submitted an admission appeal form to the Council as she wanted to appeal against its decision to refuse a place at school A. In her appeal, Ms X said that the journey to Y’s current school had become more difficult and they were frequently late. She also provided a letter from the police which showed she had reported domestic abuse. In her appeal Ms X explained she had not applied for the school in the catchment of her home because she felt Y would do better at school A.
24. In response to my enquiries, the Council has said that it considered the police letter together with the information on her appeal form. The Council considered the letter did not show that Y could only attend school A. It therefore did not consider Y met the threshold for consideration under the highly exceptional circumstances criterion.
25. The appeal panel considered Ms X’s appeal. The clerk’s notes of the hearing show the presenting officer for the school told the panel that a child had been admitted so the published admission number had been reached. Ms X presented her case for wanting a place at school A and the panel asked questions.
26. The panel considered Ms X’s appeal at stage one. The clerk’s notes show it decided that the admission arrangements complied with the requirements of the school admissions code and were properly applied to Y. It also considered admitting another child would prejudice the provision of efficient education and efficient use of resources at the school. The clerk’s records do not record any discussion or the panel’s reasons for its decision.
27. The panel then considered Ms X’s appeal at stage two. The clerk’s notes record the panel acknowledged the reasons why Ms X wanted a place at the school, including the difficulty faced by Ms X in getting Y to school. But it considered the reasons did not outweigh the prejudice of admitting another child to the school. The panel refused Ms X’s appeal. The clerk wrote to Ms X to notify her of the decision.
28. The Council has now offered a place for Y at school A. Ms X has declined the place as Y is settled at another school.

Analysis

Application

29. On balance, there is no evidence of fault in how the Council considered Ms X’s application for a place at school A for Y. Ms X did not indicate there were highly exceptional circumstances when she applied for the school and she did not refer to domestic abuse on her application.
30. The Council received an application for school A for another child a few weeks before Ms X made her application. As the Council had two applications for one place it had to apply the oversubscription criteria in accordance with its allocations policy. There is no evidence of fault in how it did that as the other child had higher priority under the oversubscription criteria.
31. The Council has explained why it considered the police letter did not indicate highly exceptional circumstances when Ms X submitted her appeal. I note neither the letter nor Ms X’s appeal form indicated that Y could only attend school A due to domestic abuse. So, I am satisfied there is no fault in how the Council reached this decision. I therefore do not have grounds to question the Council’s decision that it should not consider Y under its highly exceptional circumstances criterion.

Appeal

32. The school admission appeals code provides that the clerk should keep a record of the panel’s decision and the reasons for the decision. The clerk’s notes record that the panel was satisfied the admission arrangements were lawful and had been properly applied. It also shows the panel agreed prejudice would be caused by the admission of another pupil. But there are no reasons recorded for the panel’s decision at stage one. So, there is no evidence to show how the panel satisfied itself that the school had made its case that another pupil would cause prejudice. This is fault.
33. I therefore cannot be satisfied, even on balance, that the panel properly considered the tests at stage one. I cannot know what the outcome would have been if the panel had properly considered if the school had made its case. But Ms X cannot be satisfied that the panel properly and fairly considered her appeal which causes uncertainty to her.
34. We generally recommend the Council holds a fresh appeal with a new panel and new clerk in the event we consider there is fault in how the panel considered an appeal. It is not proportionate to make such a recommendation as Ms X no longer wants a place at the school. But the Council should apologise to Ms X for the uncertainty caused.

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Agreed action

35. That the Council will:
1. Send a written apology to Ms X for the uncertainty caused by the appeal panel’s failure to demonstrate it had satisfied itself the school had made its case that the admission of another pupil would cause prejudice. 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.
2. By training or other means, remind appeal panels and clerks that the panel must satisfy itself that the school has made its case for prejudice when considering stage one of an appeal and that reasons for its decision must be recorded in the clerk’s notes.
36. The Council should take the action at a) within one month and the action at b) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have completed my investigation and partially uphold Ms X’s complaint. Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman