Summary: We upheld Mr X’s complaint about an unsuccessful school appeal for his son, Y. The panel did not ensure Y’s mother could take part in the hearing. This caused uncertainty the panel had all the information it needed to make an informed decision. The Admission Authority will offer a fresh appeal for Y, ensuring both parents can take part.

The complaint

1. Mr X complains about an unsuccessful school appeal for his son, Y, which took place over the telephone. He says there were problems with the connection and at times it was difficult to hear what was being said. He says Y’s mother had to leave the call as a result so could not put her views forward. He says the panel did not consider all the points in support of his son’s appeal. He would like another opportunity to put their case forward.

Back to top

The Ombudsman’s role and powers

2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the admission authority followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. 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. If we are satisfied with an admission authority’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)

Back to top

How I considered this complaint

5. I have considered the complaint made by Mr X and information provided by Y’s mother.
6. I have considered the Admission Authority’s comments on the complaint and the documents in provided in response to my enquiries.
7. Mr X and the Admission Authority had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and guidance

8. Statutory guidance about school admissions and appeals is in the School Admissions Code and School Admission Appeals Code, published by the Department for Education.
9. All schools must have admission arrangements which set out how they will admit children, including the criteria they will apply if there are more applications than places at the school.
10. In the normal admissions round, parents and carers apply to the council in which they live for places at their preferred school. Councils must provide a common application form which enables parents and carers to express their preferences.
11. Schools designated as ‘faith schools’ may use faith-based oversubscription criteria and assign places on faith grounds when the school is oversubscribed.
12. If a school is oversubscribed, the admission authority must rank the applications in order against its oversubscription criteria and send the ranked list to the council. The council then sends parents or carers an offer of a place at their highest preference school where a place is available.
13. Any parent or carer who has their application for a school place refused has the right to appeal to an independent appeal panel. The admission authority must appoint a clerk who is independent of the school and appoint an independent appeal panel to hear admission appeals.
14. Parents and carers can send information to support their appeal which the clerk circulates before the hearing, with information from the admission authority. Parents and carers can attend the hearing to present their case. A representative from the admission authority will also normally attend the hearing.
15. The Appeals Code sets out the two stages for considering appeals:
• In the first stage, the panel examines the decision to refuse admission and considers whether the admission authority took the decision properly. It must decide whether admitting extra children would “prejudice the provision of efficient education or the efficient use of resources” for those already at the school. If the panel decides admitting extra children would prejudice the school, then it must continue to the second stage of the appeal.
• At the second stage, the panel must balance the prejudice to the school against the appellant’s case to admit the child. It must decide whether the appellant’s case outweighs the prejudice.
16. The clerk must be sure to take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
17. The appeal panel must communicate its decision in writing, including the reasons for its decision, to the appellant, the admission authority and the council. The decision letter must be easy to understand and must contain a summary of relevant factors raised by parties and considered by the panel. It must also provide clear reasons for the panel’s decision.

Impact of the COVID-19 pandemic

18. In April 2020, the government introduced temporary changes to the regulations about holding school appeals. It also published guidance to go with the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak.’ These said that where face-to-face appeals cannot take place safely, hearings can be conducted by telephone or video conference. To hold a remote hearing, the panel must be satisfied that:
• all parties can present their cases fully;
• each participant has access to video or telephone facilities allowing them to engage in the hearing at all times; and
• it can hear the appeal fairly and transparently.
19. Where this is not possible, the panel can decide appeals on written submissions only. The clerk should contact the appellant to explain the temporary arrangements for appeals and check they have access to the necessary equipment for a remote hearing.

School’s admissions arrangements

20. Archbishop Beck Catholic College is a voluntary aided school and its governing body is its admission authority. The school’s admission arrangements give priority to Catholic children, followed by children with siblings in the school and those who attend one of three feeder primary schools.

What happened

21. Y’s mother applied for a school place for Y in the normal admissions round. Y is not Catholic but did attend a feeder primary school. Y’s parents do not live together.
22. As there were more applications than places available, the Admission Authority used its oversubscription criteria to decide which children should be offered a place. The last place offered was to a Catholic child. Y was offered a place at another school which had places available.
23. Y’s mother appealed the decision not to admit Y to the school. In her written submission she cited concerns about the school Y had been offered a place at. She said Y’s friends had all been offered a place at Archbishop Beck Catholic College and Y was upset that he had not. She raised concerns about Y travelling to the allocated school as he lived closer to his preferred school. She provided a supporting letter from Y’s primary school and his school friends. Y’s mother said she wished to attend the appeal hearing.
24. The Admission Authority wrote to Y’s parents in early May to explain they could have an appeal heard remotely, or have it considered using just written information. It provided a copy of the school’s case and invited parents to send any questions or requests for clarification. It also invited parents to provide any further information or evidence to support their appeal. The Admission Authority asked parents to confirm if they wanted to have their appeal heard remotely.
25. The Admission Authority also sent guidance notes on remote appeals. These said all parties must be able to fully present their case and to hear and be heard throughout the meeting.
26. Before the appeal took place, parents and the panel submitted questions about the Admission Authority’s case that admitting more children would cause prejudice to the school. The clerk then circulated the answers to these questions before the remote hearings.
27. The appeal was heard remotely in June 2020. Mr X says he and Y’s mother both joined by telephone. Mr X says from the start of the hearing communication was poor. He said he had to ask for questions to be repeated and for people to speak up. Mr X says Y’s mother left the hearing because of a poor connection. He says as a result she did not get a chance to put her views across about Y’s appeal.
28. The Admission Authority provided me with a copy of the clerk’s notes from the first stage of the appeal. These show how the panel considered the school’s case that to admit more pupils would cause prejudice. The notes say the panel agreed the school had made its case, and there would be prejudice.
29. The Admission Authority has also provided the clerk’s notes of the second stage of the appeal. These only record Mr X as being present, not Y’s mother. There is no reference to any audio or connection difficulties during the remote hearing. Mr X discussed his concerns about Y not attending the school. These included those raised by Y’s mother in the written appeal but also his concern that Y was being discriminated against based on his faith.
30. I asked Y’s mother what points she may have raised or questions she might have asked if she had been able to participate in the appeal. She says she would have talked about Y’s participation in church activities and desire to be baptised and the effect on his mental health of not attending the school.
31. I asked for comments from panel members and the school’s representative about communication during the hearing. The clerk said if there had been audio problems with the call that meant only Mr X could take part, the appeal would only have continued if both parents agreed to this. She said this would not be recorded in her notes as the discussion would have taken place before the hearing started. The chair, panel members and school’s representative could not recall any concerns with audio quality. The school said all its contact about the appeal had been with Y’s mother.
32. The clerk wrote to Y’s mother with the panel’s decision. She said the panel had considered the reasons given for seeking a place but decided they were not strong enough to outweigh the prejudice to the school.
33. Mr X says the decision letter does not reflect the points he made at the hearing. He assumes this is because the panel could not hear him.

Analysis

34. Faith schools can assign places on faith grounds; this is allowed under the School Admissions Code. Therefore, there is no fault in the panel’s decision the Admission Authority applied its admission arrangements correctly.
35. The clerk’s notes of the remote hearing are detailed and show Mr X was able to discuss his concerns about his son not being offered a place at the school. The panel asked questions and listened to his points. I am satisfied Mr X could present his case to the panel fully.
36. I cannot reach a view on the audio quality during the hearing. It is possible the panel was unaware of any difficulties at the time. However, I remain concerned Y’s mother did not take part in the appeal hearing. She was the person who made the original school application and the appeal, and her contact details were in the cover sheet for the hearing. She was the main contact for the appeal throughout and said she wished to attend the hearing. Some points she wished to make to the panel were different from those made by Mr X. But the clerk’s notes do not list her as an attendee and suggest only Mr X was there. The panel should have expected that Y’s mother would wish to take part. When she did not it should have checked she was happy with the panel continuing in her absence and recorded the outcome of that conversation. It did not do so. All parties have not been able to present their case and this is fault.
37. The decision letter outlines the main points of Mr X’s appeal which the panel considered. Mr X says the letter does not reflect all his points, but I am satisfied the notes of panel show he had an opportunity to make his case and the panel responded to and considered his points. However, the decision letter does not give reasons why his case did not outweigh prejudice to the school. This was fault and causes uncertainty for Mr X about why the panel refused the appeal.
38. It is not possible to say that Y’s appeal would have been successful if his mother had been able to ask questions or make further representations. However, the faults identified cause uncertainty about whether the panel had all the information it needed to make an informed decision.

Agreed action

39. To remedy the injustice caused by the faults identified, within one month of the final decision, the Admission Authority will offer a date for a fresh appeal for Y, with a different panel and clerk. It will invite both parents to take part.
40. The Admission Authority will also remind clerks that decision letters should provide clear reasons for the panel’s decision. Clerks should also document any agreement reached with appellants about continuing without one party present.

Back to top

Final decision

41. I uphold this complaint. Mr X, Y and his mother were caused an injustice by the actions of the Admission Authority and it will take action to remedy this.

Back to top

Investigator's decision on behalf of the Ombudsman