The Ombudsman's final decision:
Summary: The School was at fault for not applying its published admission arrangements when making conditional offers. The independent appeal panel was also at fault in how it considered this matter. This did not change the final outcome for B, but he and his father experienced unnecessary uncertainty. The School agreed to apologise and pay a financial remedy of £250.
- Mr A complained that Maidstone Grammar School for Girls (“the School”) did not accept his son’s application for its sixth form on the grounds that he did not meet the academic requirements. Mr A was also unhappy with how the independent appeal panel considered the case when upholding the School’s decision. In particular, he complained that:
- B met the academic requirements in the published admission arrangements but the School did not make him a conditional offer;
- The School used an Average Points Score to rank applicants when offering places, but this was not in its published admission arrangements;
- The independent appeal panel did not question the unlawful admission arrangements or the School’s decision not to admit B.
- During this investigation, a representative (Mr Y) acted on Mr A’s behalf.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
How I considered this complaint
- I considered the information Mr Y provided to the Ombudsman and I reviewed the papers from the independent appeal panel. I also considered the response to my enquiries from the School and Kent County Council, which manages the Panel on its behalf.
- I took account of relevant legislation and guidance.
- I sent a draft decision to Mr Y, Kent County Council and the School for comments.
What I found
- The government has issued statutory guidance on school admissions and appeals, which is set out in the School Admissions Code 2014 (“Code”) and School Admission Appeals Code 2012 (“Appeals Code”). Schools and local authorities must follow this guidance.
- All schools must have admission arrangements that clearly set out how they will admit children, including the criteria they will use if there are more applications than places at the school (oversubscription criteria). The arrangements are set by the ‘admission authority’ each year. This is usually the local authority but for some schools, including grammar schools, the role is undertaken by the governing body.
- If admission authorities plan to make any changes to admission arrangements, they must first consult on the proposals. The consultation allows parents, other schools and organisations to raise any concerns they have about the new arrangements before they are finalised. For new admission arrangements from September 2016, consultation had to take place for a minimum of eight weeks and end by 1 March 2016. (Code, 1.43)
- The practices and criteria used in admission arrangements must be clear, reasonable and objective. Parents must be able to look at a set of arrangements and understand easily how places at that school will be allocated. Admission authorities must not place any conditions on the consideration of any application other than those in the published oversubscription criteria. (Code, 1.9)
- If a school is oversubscribed, the admission authority must rank the applications in order against its oversubscription criteria. Every admission authority must keep a waiting list for at least the first term of the academic year, which must also be ranked according to the published oversubscription criteria. (Code, 2.14)
- When setting admission arrangements for sixth forms, admission authorities can specify academic requirements. Where the sixth form is attached to a school, the criteria must be the same for both internal and external applicants. The arrangements must give priority to children who are, or were previously, looked after by the local authority, provided they meet the academic criteria. As part of the sixth form admission process, schools can arrange meetings with applicants to discuss course choices, but this must not form part of the decision on whether to offer a place. (Code, 2.6)
- Parents or carers have the right to appeal against an admission authority’s decision not to offer their child a place. The appeal is heard by an independent appeal panel (“the Panel”), which is a statutory tribunal. The responsibility for admission appeal arrangements lies with the admission authority. For grammar schools, the governing body can arrange the independent appeal panel through the local authority, but will still be responsible for this process.
- The Appeals Code sets out the rules for appeals and decisions. At the first stage, the Panel considers whether the admission arrangements complied with the statutory requirements and were applied correctly and impartially to the individual child. (Appeals Code, 3.2) The Panel must then decide whether admitting more children to the School would prejudice the efficient education of other students, or the efficient use of resources. The Panel must uphold the appeal at the first stage if it finds the admission arrangements were not lawful or correctly applied and that, if they had been, the child would have been offered a place. If the Panel finds the admissions arrangements were lawful and correctly applied, or if they were not but, even if they had been, the child would not have been offered a place, it must proceed to the second stage.
- During the second stage, the Panel weighs up the degree of prejudice to the school of admitting an additional child against the parent’s reasons for wanting their child to attend that particular school. This is when the Panel exercises its discretion and it may decide the parent’s case is stronger than the school’s. (Appeals Code, Chapter 3)
- For sixth form appeals, where an applicant did not meet the entry requirements, the Panel must not make its own assessment of their ability but must decide whether the school’s decision that they are not of the required academic standard was reasonable in light of the information available to it. (Appeals Code, 3.17)
Admissions arrangements at the School
- The School’s published admission arrangements for the sixth form give priority to internal applicants and the remaining places are offered to external students who have met the academic requirements. The School also takes account of its capacity for the applicant’s chosen courses. The School planned to admit around 50 external applicants to join its sixth form in September 2016 but the exact number depended on how many internal students stayed on. The School had a maximum capacity of 200 for Year 12.
- The published admission arrangements for 2016 state the requirement for entry into the sixth form is six GCSEs at grade A* to C (including Mathematics and English Language), including at least four B grades. Applicants must have at least a B grade in the subjects they want to study at A Level. If they did not study their choice of A Level subject at GCSE level, their grades in other subjects must show their ability to study the course (as set out in the sixth form prospectus).
- If there are more external applicants than places available, the School’s oversubscription criteria gives priority firstly to looked after children, secondly to applicants with a sibling at the school and thirdly to students with special health and safety requirements. The ranking criterion for the remaining applicants is the distance of the child’s home from the School.
- The School advises parents to put in their child’s application for the sixth form by early February. It then asks the child’s current school for a reference (confirming their predicted GCSE grades) and invites them for a meeting in January or February to discuss their ambitions and A Level options. The School states this meeting does not affect the decision on their application, which is based solely on the academic criteria. The School makes conditional offers to successful applicants in March. These students attend an induction day in July.
- The published admission arrangements state that if a child does not meet the academic requirements and there are special circumstances that may have affected their performance, it will consider individual applications on a case by case basis. If applicants are unsuccessful, they are placed on a waiting list. If they do better than their predicted grades, their parents can contact the School to find out if there is a place available.
- For several years, the School has also used an additional admission criterion to make decisions on conditional offers, which is not included in the published arrangements. This is an Average Points Score (APS), which is calculated by assigning points to each grade (A*=58, A=52, B=46, C=40, D=34, E=28, F=22, G=16, U=0) and taking an average from the applicant’s predicated GCSE grades. The School uses the APS to rank all applicants and only makes conditional offers to those who score above a certain level, which in 2016 was set at 48. This represented an overall average higher than a B grade, so required significantly better predicted grades than the minimum set out in the admission arrangements. The School did not make conditional offers to other applicants, even if they met the published requirements. Instead, it placed them on the waiting list. The School says it has found using the APS is the best predictor of whether applicants will meet the entry criteria following their GCSE results.
- The School had 329 external applications and made 168 conditional offers. It placed 161 applicants on the waiting list. Following GCSE results, the number of students with conditional offers who took up places was lower than the maximum capacity. The School says it was able to offer the remaining places to all students on its waiting list who had met the requirements in the admission arrangements and still wished to attend, bringing the total for the year to 174.
B’s application for a sixth form place
- B attended a grammar school in Kent and was offered a place in its sixth form. However, following a difficult period for the family, he decided he wanted a fresh start for his A Levels, at a different school. He chose to apply to the School because his sister attends and had spoken positively about it.
- B’s predicted grades met the requirements in the School’s published admission arrangements, but gave him an APS of 46.5. Therefore, the School did not make him a conditional offer but instead placed him on the waiting list. It did not invite him to a meeting. Mr A feels this would have been a chance to show teachers his academic potential.
- When the School wrote to B in February to confirm its decision, it referred to his APS score as the reason for not making an offer. The letter stated that, if a place became available, the School would contact him before his GCSE results.
- In March, Mr A logged in to Kent County Council’s online admissions system (which the School uses) and saw an alert about missing information on B’s choice of A Level subjects. He contacted the School to ask if B had missed a stage in the application process but did not get a reply.
- In May Mr A called the School and spoke to a senior teacher about B’s application. She told him he was near the top of the waiting list and would be contacted if a place became available. After hearing nothing, Mr A wrote to the school in July and explained that B was likely to exceed his predicted grades. He also asked for clarification about the entry requirements.
- The School wrote back to Mr A and explained its entry requirement was six C grades, including 4 B grades, which must be in the student’s chosen A Level subjects. Its letter also stated that it had ranked all applicants using an APS and the minimum required for conditional offers was 48, so B’s APS of 46.5 was not high enough. The letter suggested that if B exceeded his predicted grades, he could get in touch to find out if a place was available.
- Following GCSE results day, the School contacted the parents of all students on the waiting list. Mr A shared B’s results, which were B grades in English Literature, Mathematics, Italian and Double Award Science (one grade) and C grades in four other subjects. The School said this was not enough to meet its entry requirements because, although he had 4 B grades, he had not met the specific criteria for a sufficient number of A Level subjects to make up a full timetable.
- Soon afterwards, Mr A contacted the School again to explain that B had changed his A Level choices following his results and now planned to study Mathematics, English Literature, Biology and Physics. However, the School did not change its decision. This was because, according to it subject-specific requirements for September 2016, B only met the criteria to study A Levels in Sociology and Media Studies.
- After results day, applicants with conditional offers had a meeting with the School to confirm whether they had met the entry requirements and to discuss changing A Levels if necessary. B was not offered a meeting.
- B had not accepted a place in the sixth form at his grammar school. When it became clear the School would not change its decision, Mr A applied to a private school, which B now attends. He is studying A Level courses in Geography, Media Studies, Biology and Photography.
- However, Mr A remained dissatisfied with the School’s decision on B’s application and decided to appeal.
Independent appeal panel hearing
- The Panel heard Mr A’s appeal in October 2016. The School’s submission stated that offering B a place would be incompatible with its admission arrangements. This was because, while he met the minimum entry requirements, he had not achieved the subject requirements for enough subjects to study a full timetable.
- The Assistant Head Teacher for the sixth form attended the hearing for the School (as its “presenting officer”). She set out the School’s position and answered questions from panel members and Mr A. She confirmed the School used the APS as an additional criterion for making conditional offers because it saw this as a fairer measure of ability. She said the score varied each year but no offers were confirmed until GCSE results were published. She said the School had followed its admission arrangements correctly.
- The presenting officer also stated the School put B on the waiting list instead of making him a conditional offer because his application was incomplete and did not include all of his A Level choices. Mr A explained that he contacted the School to provide the information it needed and showed the Panel copies of correspondence between February and July.
- Mr A explained why he believed the School was at fault. He argued it should not have used the APS to make conditional offers because it was not in the published admission arrangements. He said it should have made B a conditional offer because his predicted GCSE grades met the entry requirements, and it should also have invited him to a meeting before and after his results.
- The presenting officer recognised there had been confusion with B’s application and the School had learned from this. But she said that, even if the School had made him a conditional offer, it would not have confirmed his place because he did not get the final GCSE results he needed.
- During the hearing, there was some discussion of what A Level courses B could have studied. The presenting officer explained that students can change courses in the first three weeks of term, but must meet the subject requirements. The clerk’s notes have references to why B could not take his preferred subjects at A Level and state he would not be able to follow a full timetable. However, there is no specific record of what courses the School could have offered B and why this was not enough. Mr A did not suggest any specific subjects B could take based on his results. He said his main reason for wanting to attend the School’s sixth form was to have a fresh start, rather than his wish to study a particular course.
- When making its decision, the Panel first considered the School’s admission arrangements. It decided there was no evidence the criteria were not applied in a consistent and objective way. However, it did not directly refer to whether the arrangements were lawful, and correctly and impartially applied to B.
- The Panel acknowledged the School put B on the waiting list instead of making him a conditional offer because other applicants had a higher APS score. It noted the School had agreed to improve its procedures and would now include details of the APS ranking system in its published admission arrangements.
- However, the Panel decided the key issue was that B’s final GCSE results meant he did not meet the School’s subject requirements and could not have studied a full timetable. It considered the reasons for his lower than expected performance but agreed with the School that he had not demonstrated the academic ability to enter its sixth form. Therefore, the Panel did not uphold Mr A’s appeal. It confirmed the reasons for its decision in writing.
- Mr A was unhappy with how the Panel had considered his appeal and approached the Ombudsman, with the support of Mr Y. Following the Ombudsman’s enquiries, the School accepted it should have made B a conditional offer and Kent County Council acknowledged fault in how the independent appeal panel had considered his case. The School agreed to offer B a place in its sixth form in September 2017, but this was conditional on him meeting the academic requirements for the subjects he wished to study and being able to accommodate his choices in the timetable. B did not take this up this offer, as he is now settled in his current school and is doing well.
Was there fault?
- The School did not follow its published admission arrangements when making conditional offers to applicants for September 2016 entry. It used an additional oversubscription criterion, which was not mentioned in the arrangements and had not been subject to consultation. Using an APS to rank applicants based on academic ability contradicted the published oversubscription criteria, which apply to all external applicants with the minimum academic requirements, giving priority to looked after children, siblings, students with health issues and finally those living closest.
- As the School’s admission process breached the statutory guidance. I found fault with its actions here.
- The School and Panel accepted it should have made B a conditional offer based on his predicted GCSE grades. The reason for not doing so was that he did not meet the additional, unpublished condition of the APS. So there was fault in the School’s handling of B’s application.
- The independent appeal panel’s decision accepted the School’s arrangements were lawful and had been correctly applied to B. However, this did not logically follow from the information presented. The Panel did not directly challenge the School’s use of the APS in B’s case. It also appears not to have seen any clear evidence that B’s original application was incomplete.
- The Panel focused on the fact that B’s final grades were not sufficient for him to be offered a place. It agreed the School could not offer enough subjects for a full timetable, but the notes do not reflect a thorough discussion of what courses were potentially available to B. Without this information, there is no clear record of how the Panel determined the School’s decision was reasonable.
- Therefore, I found fault with how the Panel considered Mr A’s appeal.
Did the fault cause injustice?
- B met the requirements for a conditional offer, so the School should have offered him a place on this basis by March. However, the School would not have confirmed the place until he had his GCSE results. Unfortunately his grades were lower than predicted and he did not meet the subject requirements for his original A Level choices, or the revised choices put forward by Mr A. So, even if the School had made a conditional offer, it would not have followed this with a firm offer.
- B did not have the opportunity to discuss other potential A Level options following his GCSE results, which would have happened if the School had correctly made him a conditional offer. However, ultimately, this did not change the outcome for him. This is because, according to the specific criteria for A Level courses offered by the School, he only qualified for two subjects.
- The School offered places to everybody on the waiting list who met the academic requirements in the published admission arrangements, and B’s year group was still below the maximum capacity. Therefore, although the School did not make B a conditional offer, I am satisfied it would have given him a place from the waiting list, if he had met the grade requirements for enough subjects.
- Therefore, I have found the School’s fault did not directly lead to an injustice in B’s case.
- The School’s offer of a conditional place for 2017 put B back in the position he should have been in had the fault not occurred. However, the long delay meant that, even if it could have accommodated his subject choices under the 2017 criteria, he would have been a year behind. It is understandable that B chose not to take up this offer.
- While I have not found injustice based on B missing out on a school place he should have had, I consider the fault by the School and the Panel led to unnecessary confusion and uncertainty for both him and Mr A, which caused them some injustice.
- The School will no longer use the APS to make conditional offers and will follow its published admission arrangements. The School must do this; otherwise, its admission process will be unlawful. If it wishes to use an APS as part of its decision-making, it must amend its published arrangements to reflect this and follow the statutory consultation process.
- Kent County Council has arranged further training for independent appeal panel members. The Panel must apply the correct test for admission arrangements and decisions, with close reference to the statutory guidance. The Panel must also ensure it carefully considers the evidence when a school’s decision is based on academic requirements, and must clearly record the reasons for its decision.
- The School agreed to write to Mr A and B to apologise for not applying its admission arrangements correctly and failing to make B a conditional offer, and for how the independent appeal panel considered this matter.
- I recommended a financial remedy of £250 for Mr A. This is to recognise the unnecessary confusion and uncertainty the School’s actions caused both him and B, and to acknowledge his time and trouble in pursuing the complaint. The School agreed to make this payment.
- I identified fault in the School’s admission process and its decision not to make B a conditional offer.
- I also found fault with how the independent appeal panel considered B’s case.
- As the fault did not change the final outcome of B’s school application, I decided he did not experience direct injustice as a result. However, the confusion and prolonged uncertainty was itself an injustice.
- The School agreed to my recommended actions, so I have now completed my investigation.
Investigator's decision on behalf of the Ombudsman