The recorded conversation, states.... “ third choice at the time of application “ that comment smacks of ‘first preference first’ this is a equal preference scheme! So any reference to preference by a school is clearly wrong.
No, it isn't. The conversation records the admissions officer's (almost certainly incorrect) belief that this was part of the basis for the appeal panel's decision. It does not suggest that the school is operating a "first preference first" policy. It does, however, suggest that the admission officer doesn't understand how appeals panels make their decisions, which is not surprising. There is no particular reason why she would understand.
All the responders are missing the point
We really aren't.
The letter to applicant is confidential data that the school has no right to see !
Up to this point you are correct. However, the moment you choose to appeal this is incorrect. The letter to the applicant is important evidence which is almost invariably supplied to the appeal panel. Once you appeal it is no longer confidential. The admission authority is required by the Appeals Code, which is not law but has the force of law, to provide the information on the letter to the appeal panel.
As long as the application process continues including appeal they should not see parents choices as this could be said to breach the school admissions criteria and take in to consideration that parents could be appealing more than one school so release of that data could be prejudicial.
It is good practise not to share the preferences with the school prior to initial offers to avoid suspicions of schools operating a covert "first preference first" policy. However, there is no specific ban on sharing this information. If it is shared, what matters is not that the information has been shared, it is whether any decisions are based on it.
If the school alters your position on the waiting list that would be a breach of the Admissions Code which would lead to a successful appeal if your child missed out on a place as a result. If the appeal panel takes the fact that this was your third choice into account in deciding the outcome of the appeal that would be a breach of the Appeals Code which would lead to you being awarded a fresh appeal with a different panel if the ESFA finds this is what happened. But the Appeals Code requires the admission authority to provide certain information to the appeal panel. The LA must therefore disclose that information to the school and the school must disclose it to the panel.
We say that the admissions officer knew of our order of preference as she referred and she states that our son did not get in simply because we put the school as third choice.
Yes, she knew your order of preference. She found out when you appealed and the council provided the information the school needed to support that appeal. But she does not say that is why your son didn't get a place on offers day. She speculates (wrongly) that this is why you lost your appeal. The admissions officer would have no knowledge of the appeal panel's discussions and how they arrived at their decision.
she stated what had happened as fact not guess work
The SENCO records it as a statement of fact, but it is clearly guesswork. The only person present when the appeal panel made their decision was the clerk. The decision letter from the appeal will have been written by the clerk based on that discussion. The admissions officer would not have been present in the discussion (if she was that is a serious breach of the Appeals Code) and will not have seen the clerk's notes.
I know you believe there has been a breach of GDPR. As someone who is an expert in the law around both admission appeals (over 12 years' experience) and GDPR (over 30 years' experience of data protection law), I can assure you that there has been no breach. Note that you also have two experienced appeal panel members on this thread who say the same. If you want to pursue this, by all means refer it to the ICO but I am confident they will agree there has been no breach. Even if there had been a breach, it would not result in you being awarded a place.
If you believe the appeal panel decided not to award a place because it was your third choice, you should refer the matter to the ESFA. However, from my experience of involvement in hundreds of appeals, I would trust the letter from the clerk as being far more likely to reflect the panel's reasoning than the comments of the admissions officer. The clerk was present when the decision was made. The admissions officer was not.
My son now travel 3 hours each way out of county now ... so not at all happy
If that was the school allocated by the council and it genuinely takes 3 hours each way, that is clearly unacceptable. The journey must be over 3 miles each way by the shortest walking route to take this long, so the council must provide free transport for your son. Also, a journey this long is clearly unreasonable so you would have a good case for appeal on that basis. However, these points only apply if that is the school allocated by the council. If you chose this school the council does not have to provide free transport and the length of the journey will not help you at appeal.