Summary: We found fault on Mr Y’s complaint about the appeal panel failing to follow proper procedure when it rejected his appeal against the Council’s decision, as admission authority, to refuse his son a place at his preferred school. There was a failure to show the panel properly considered the prejudice case and how it balanced this against Mr Y’s submissions. The agreed action remedies the injustice caused.

The complaint

1. Mr Y complains about the appeal panel’s failure to follow proper procedure when it rejected his appeal against the admission authority’s decision to refuse his son a place at his preferred school: as a result, this will cause the family a great deal of stress as his younger brother will attend pre-school there and this will also cause logistical problems getting them both to different schools.

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The Ombudsman’s role and powers

2. 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)
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)

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How I considered this complaint

4. I considered all the information Mr Y provided, including the notes I made of our telephone conversation, as well as the Council’s response to my enquiries, which included comments from the appeal panel members. I sent a copy of my draft decision to Mr Y and the Council. I considered the Council’s response.

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What I found

School Admission Appeals Code (October 2022)

5. Under the Code, the panel must ensure the decision sent following the hearing is easily comprehensible so the parties can understand the basis of the decision. The decision letter must contain a summary of relevant factors raised by the parties and considered by the panel. It must give clear reasons for the panel’s decision, including how and why any issues of fact or law were decided by the panel during the hearing. (paragraph 2.28)
6. The clerk must ensure an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting, and reasons for decisions. (paragraph 2.29)
7. Under the Code, panels must follow the two-stage decision making process for all appeals except for infant class size appeals (paragraph 3.1 to 3.10):

First Stage: examining the decision to refuse admission:

8. The panel must consider the following for each child subject to an appeal:
1. 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; and
2. whether the admission arrangements were correctly and impartially applied in the case in question.
9. The panel must then decide whether the admission of further children would prejudice the provision of efficient education or the efficient use of resources.
10. The panel must uphold the appeal at 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 been offered a place if the arrangements had complied, or had been correctly and impartially applied; or
2. it finds the admission of additional children would not prejudice the provision of efficient education or efficient use of resources. (paragraph 3.5)
11. The panel must go the second stage where: it finds the admission arrangements complied with admissions law and they were correctly and impartially applied to the child or; finds the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that if they had, and been correctly and impartially applied, the child would not have been offered a place and; it finds the admission of further children would prejudice the provision of efficient education or efficient use of resources. (paragraph 3.7)

Second Stage: balancing the arguments:

12. 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 take account of the appellant’s reasons for expressing a preference for the school, including what the school can offer the child 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. (paragraph 3.8)
13. It must consider the impact on the school of admitting further children.

What happened

14. Mr Y’s son was in Reception at primary school (school 1) when he applied for him to transfer to another school (school 2). The Council received his in-year transfer request at the start of July 2024. The final term of the school year ended later the same month. His application stated they wanted a closer school, and his brother would attend playgroup at school 2.
15. The Council, as admission authority, refused the transfer request the following day. This was because school 2 had exceeded its published admission number (PAN) of 25 for that year group.
16. Mr Y appealed the refusal to an appeal panel. In his submissions he explained why school 1 was no longer suitable. This was because of: changes to the class structure; his wife being a governor at the school who was aware of concerning information about the school; loss of faith in the school’s ability to meet his younger brother’s Special Educational Needs (SEN) if he went there; it being over capacity; concerns about the behaviour of another child towards their son and the school’s failure to challenge it; Ofsted’s report following an inspection.
17. He wanted a transfer to school 2 because their youngest was moving there due to his SEN provision, and logistically it would be easier to take both there and back from the same school.
18. The school’s initial admission appeal statement explained it reached the PAN of 25 for pupils on the roll for Year 1 for September. It noted the national average number of pupils with additional needs across a school was 17.3% with an average of 17.8% in Gloucestershire schools. The figure for school 2 was 9.6%. The amended statement showed 26 were now on the roll as a child with an EHC plan was taking Year 1 again.
19. It explained all the classrooms, with one exception, met the government recommended size for the number of pupils. Lunches were split due to the capacity for dinner tables and serving in the hall. Turnover at the school was ‘quite high’ due to families moving in and out of the area. It also stated a place was refused because it reached its PAN for Year 1 as compliance with the preference would prejudice the provision of efficient education or efficient use of resources.
20. The statement also said the total agreed net capacity for the school was usually the PAN multiplied by the number of year groups within the school. This was incorrect. In response to our enquiries, the Council agreed it would look at this definition in light of government guidance, ‘Measuring school capacity: a summary guide for local authorities’. (November 2023)
21. At the appeal, the panel was told there were now 26 in Year 1 as a child was to stay back a year who had an EHC plan. The child received 1:1 support and would come with their own teaching assistant. The panel was told the average for SEN pupils at the school would be ‘9.6% plus reception’. The presenting officer also explained the ‘Class is over size for 30 pupils’ and ‘turnover quite high’.
22. Mr Y’s partner made the point that coming with a teaching assistant meant there would be no impact on numbers or resources. She also noted the admission authority should know the needs of current Reception class in terms of SEN pupils. She asked for details about what a high turnover meant but was told it was a ‘fairly high’ number and difficult to predict as there may be no leavers in the coming year.
23. The panel refused the appeal in July. Mr Y had the following concerns with the way the panel decided his appeal:

• The panel considered irrelevant information about the PAN and levels of children with EHC plans;
• The panel dismissed evidence from the school about turnover of pupils and the impact on education further admission would have;
• The panel wrongly noted the school’s knowledge of the incoming Reception class;
• It wrongly considered the transfer to current Year 1 when he had applied for current Reception class; and
• The admission authority/school’s presenting officer was a last-minute replacement and had little knowledge of the school’s capabilities.

24. The clerk’s record of the panel’s decision noted the admission authority’s evidence there would be prejudice caused by a further admission. At first stage of the hearing, this evidence was the PAN being exceeded. It recorded overall 9.6% for SEN pupils, the classroom was larger than needed for 30 places, and there was no lift for the two storeys with ‘no particular issues’. Turnover was high, and it noted the use of the hall at lunchtime. The budget was not a problem. The panel decided admission of another child would cause prejudice.
25. The panel then went on to consider the appeal at the second stage. The record shows the panel members noted: 27 in the room impacted on wider efficiency; 27 would ‘be too much’; and ‘2 over pan too many’.
26. The decision letter to Mr Y noted the school was over its PAN for Year 1, a child with an EHC plan was being held back a year and would have extra support in the classroom, and while the percentage of pupils with SEN/disabilities was lower than the national average, it was likely to rise when the needs of Reception children are better known.
27. The panel told him it decided not to grant the appeal as his case was not sufficiently compelling to outweigh the likely problems the admission of another child would create.
28. In response to my enquiries, the panel members said:

• It was not unusual for SEN requirements to increase when the precise needs of the ‘new’ intake was known (i.e. September 2024 intake). This did not prejudice the panel’s decision as it was considering Year 1.
• They could not consider hypothetical numbers based on ‘churn’ which may not happen in terms of the school’s submission about turnover.
• The physical room sizes of the classes were fully considered.
• The decision record was a summary and not designed to minute the deliberations of the panel which fully considered the impact of a further admission.
• The panel decided, based on the evidence provided, the school would be adversely affected by a further admission. It held a discussion on the factors for the school and parents before reaching an informed decision

My findings

29. I found the following on this complaint:
1. I am not persuaded by Mr Y’s argument about the panel wrongly considering the appeal as an in-year transfer to Year 1 in September. Mr Y submitted his transfer request at the start of the final month of the final term and his appeal was heard on the final day of that term. I found no fault on this complaint.
2. The admission authority promptly decided his request and, when Mr Y appealed it, also promptly arranged an appeal hearing. The panel had to consider the impact admitting his son to this school in September would have when he would move from Reception to Year 1. The reality was even if the appeal succeeded, he would not be able to transfer to school 2 the same day to Reception.
3. I am satisfied the panel correctly considered the PAN amended figure of 26. The figure was 26 because from September, a child with an EHC plan would start Year 1 again.
4. I considered the admission authority’s prejudice case for the panel. It was not a strong case and indeed, some of the points put forward arguably undermined it. The prejudice statement listed factors which would help the panel reach a decision about prejudice. The first was the impact an additional pupil would have on the school in the current, and later years, as the group moved through the school years. I saw nothing in the evidence presented about the impact an admission would have as the Year 1 group moved through the school. Nor did I see evidence of the panel exploring this issue. I consider this was fault.
5. The next was about any changes to the physical accommodation made since the publication of the PAN. It noted there were seven classes, one for each year group. It had seven classrooms. Some of these were converted a few years earlier. The Year 4 and 5 classrooms were the smallest as they were in the eaves which meant they were low ceilinged. It gave the dimensions for each classroom for each Year group. From Year 1, all classrooms, except for Year 4, met the government’s own guidance about classroom size. No information was given about Year 4, which had 24 on the roll from September, and how the smaller classroom impacted on its pupils. I saw no evidence this was explored or considered by the panel. I consider this was fault.
6. Another factor listed was the impact an additional child where there was a ‘high level of need within the class/school’. There was no definition or guidance as to what a ‘high level’ meant. Year 1 would now have one child with an EHC plan. The level of children with additional needs at the school would be at least 9.6%, below the national 17.3% average and below that for Gloucestershire schools.
7. The statement went on to note there were 9 teachers and the child with the EHC plan would have his own full time teaching assistant to help in the classroom. There was no mention of this child having disabilities preventing access to the first floor SEND and Family Support workers’ rooms, for example.
8. A further factor listed was the impact an additional child would have on the organisation and size of classes, the availability of teaching staff, and the impact on children already at the school. Again, the statement failed to address these and nor does the evidence show there were explored or considered by the panel. I consider this was fault.
9. The only other information in the statement about prejudice was split lunches due to the capacity of dinner tables and serving in the hall. It also mentioned turnover at the school being ‘quite high’ but gave no further information about what this was in previous years or what it might be for the following year.
10. The statement failed to explain how the addition of the child with an EHC plan would impact the Year 1 class or indeed the school.
11. Arguably, each Year class having its own classroom, its own teacher, with classrooms meeting government guidance about physical size, and the newly admitted child with an EHC plan and own teaching assistant, as well as the school being under the national average for children with additional needs, undermined the prejudice case.
12. In addition, the updated statement did not make it clear whether the information given about staffing levels meant the full-time general teaching assistant was the same, or in addition, to the one the new ECH plan child would have. The table which gave the number of teaching assistants for children with additional needs was blank.
13. I am not satisfied the evidence showed the panel correctly considered the appeal at the first stage of the hearing. The evidence does not show how the panel considered and decided the admission of a further child would cause prejudice. This was because the decision record noted the summary of factors put forward by the admission authority in its prejudice case which, as noted, I consider were weak. There was nothing recorded to explain the reason for the panel deciding prejudice would be caused. I consider this was fault.
14. Nor am I satisfied the decision record showed how the panel weighed the prejudice to the school against the reasons Mr Y made for his son to go there. While the record does not need to minute every comment made by the panel’s discussion, it does need to show what was considered, and how the panel carried out and decided the balancing against the prejudice case and appeal submissions made. The record simply records the panel deciding 27 in this case would be too much with no explanation. This failure amounts to fault.
15. The panel’s decision letter said it took account of the evidence that the school had a lower than national average number of children with SEN and/or disabilities. The letter went on to explain this was 'likely to rise when the needs of Reception children are better known’. There was no evidence on which the panel could base this view. This was because there was no evidence from the school or the admission authority about this likelihood. There was no evidence, for example, showing whether the level increased in previous years when the new Reception class needs were known. Levels might have remained the same when the future Reception was admitted. I am satisfied this amounted to fault.
16. The panel’s approach to speculative evidence about this level at the school was contrasted to what it said about the prejudice case which said turnover at the school was quite high. The presenting officer said it was difficult to predict. In response to our enquiries, the panel said it could not consider hypothetical numbers based on ‘churn’ which may not happen.
17. I am not criticising the panel’s decision about whether to give any weight to the submission about turnover. This was evidence introduced by the admission authority. The panel had to consider it and consider what, if any, weight to give it. It was fault for the panel to have an inconsistent approach to speculative evidence about events which may or may not happen. While it rejected the turnover submission, it decided it was likely the numbers of children with additional needs would rise.
18. Nor am I satisfied the decision letter to Mr Y provided reasons for the panel’s decision. It said the panel has, ‘accepted that if your appeal were granted it would prejudice the provision of efficient education or the efficient use of resources.’ While it provided Mr Y with the panel’s decision, it failed to explain the reasoning for it and how the panel considered evidence. The failure to give clear reasons for the decision, including how and why any issues of fact were decided, amounted to a breach of the Code. They also amounted to fault.
19. I am satisfied the identified fault caused Mr Y an injustice. This was in the form of distress. Mr Y has the uncertainty of not knowing whether the outcome of the hearing would have differed but for the fault. He also had the lost opportunity to have the hearing properly heard and decided. Mr Y has also some frustration and anxiety as a result.

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Agreed action

30. I considered our guidance on remedies.
31. The Council agreed to carry out the following action with four weeks of the final decision on this complaint:
1. Send Mr Y a written apology for the fault identified.
2. Arrange a new hearing of this appeal with a different appeal panel.
3. Remind all clerks of the need to follow the Code in terms of ensuring: records of panel decisions show how members considered and weighed prejudice, and weighed it against an appellant’s submissions; decision letters set out reasons for appeal panel decisions.
4. Remind all panel members to: be consistent with their approach to evidence which is speculative; explore and test the prejudice case submitted.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I found fault on Mr Y’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman