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King David High School, Liverpool (20 001 119)

Category : Education > COVID-19

Decision : Upheld

Decision date : 21 Jan 2021

The Ombudsman's final decision:

Summary: Mrs Q complained an independent appeals panel had failed to properly consider her appeal for a school place for her son, R. This had caused the family significant distress. The investigation found evidence of fault and the school has agreed to hold a fresh appeal.

The complaint

  1. The complainant, whom I shall call Mrs Q, complains there was fault in the way the admission appeals panel considered her appeal for her son, R.

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The Ombudsman’s role and powers

  1. 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 authorities followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  2. 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)
  3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  4. If we are satisfied with an independent school appeal panel’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

  1. I considered the information Mrs Q provided with her complaint and spoke to her on the telephone. I made enquiries of the school and assessed its response. I sent the Council and Mrs Q a copy of my draft decision in order to take any comments they made into account before issuing a decision.

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What I found

Relevant guidance

  1. Statutory guidance about school admissions and appeals can be found in the School Admissions Code and the School Admission Appeals Code (2012). Both are published by the Department for Education.
  2. The statutory guidance highlights that a parent or guardian can make an application for their child to attend any school in any county. However, this application must be made through the Council where the child lives. If a parent or guardian has any concerns about the admission process, they can highlight it to the independent panel hearing their admission appeal.
  3. In 2020 emergency regulations were introduced because of COVID-19. The regulations that concern us here are the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the 2020 regulations). They temporarily amend parts of the 2012 regulations and will be in force until 31 January 2021.
  4. The 2012 regulations say that appeal panels must allow appellants the opportunity to appear in person and present their case. The 2020 emergency regulations state that where face-to-face hearings cannot not take place, they should be conducted by telephone or video conference. The appeal panel can decide to hold the hearing remotely if it is satisfied that:
      1. the parties will be able to present their cases fully
      2. each participant has access to video or telephone facilities allowing them to engage in the hearing at all times
      3. the appeal hearing is capable of being heard fairly and transparently in this way
  5. Where this is not possible, the 2020 guidance says appeals can be conducted entirely based on written submissions. For the panel to make a decision which is fair and transparent, they must ensure that the parties are able to fully present their case by way of written submissions.
  6. The structure of appeals is set out in the 2012 Code. For non-infant classes, they are held in two stages. At the first stage, the panel has to confirm that the admission arrangements comply with the mandatory requirements of the School Admissions Code and that the arrangements were correctly and impartially applied in the case in question. At the end of the first stage, the panel decides whether the admission of additional children would ‘prejudice the provision of efficient education or the efficient use of resources’. In other words, whether the school could allow any more children in without making it difficult for it to educate existing pupils.
  7. If the panel decides there would be prejudice, it goes to the second stage of the appeal. At this stage ‘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 into account the appellant’s reasons for expressing a preference for the school, including what that school can offer the child that the allocated or other schools cannot’.
  8. I am considering Mrs Q’s appeal in the light of the 2012 and 2020 appeals guidance.

Mrs Q’s application and lead-up to the appeal

  1. Mrs Q had applied on time for a place for her son R at the school of her choice. The school considered applications in 9 categories. R was put into category 9 (all other applicants) but no children from that category were given places. Mrs Q later provided information to show R should have been in Category 8 (applicants of other faiths whose families demonstrate religious commitment) but he still lived too far away from the school to get a place.
  2. Because R was unsuccessful in obtaining a place at the school, Mrs Q asked to have his case considered by an independent appeals panel.
  3. The appeal form needed to be given to school by the end of March. Mrs Q said she struggled to get the appropriate form from the school. She told me she eventually received one and took the appeal papers into school on the last school day before lockdown to complete the forms and hand them in to the school office. Mrs Q has given me specific information about the day and I have no reason to doubt her account. She acknowledges that all the staff were extremely busy. She was not offered and did not ask for a receipt when she handed in the papers. The clerk to the governors (who was coordinating the appeals) did not pick up Mrs Q’s papers on that day although it is not clear why she did not receive Mrs Q’s papers before the deadline of the end of March. After that day the school says the clerk was working from home and was only in school very sporadically.
  4. Mrs Q chased up whether the papers had been received on 20 May and was told on 21 May that the clerk had not received them. Mrs Q helpfully emailed her papers to the clerk who confirmed receipt on 1 June. By that time, other appeals had been heard.
  5. I accept that the circumstances, at the time Mrs Q handed in the form, were extraordinary and unprecedented. Schools had to close down with very little notice. At the same time, Mrs Q was concerned that she needed to get information to the school by the deadline and felt handing it to the school was safer than posting it. I appreciate the school’s priorities on that particular day would have been existing students and their families. I also appreciate Mrs Q handed the form in in good faith. Because the school accepted Mrs Q going in, completing the forms and handing them back into the school on that day I am finding it at fault for failing to ensure those forms then got to the correct person on time.
  6. The school seems also to accept Mrs Q’s account of events on that day.

Documentation given to Mrs Q before the appeal

  1. The school decided to hear appeals over the telephone and explained it was important for complainants to have access to a telephone for the afternoon of the appeal to enable them to fully participate.
  2. The school also sent documentation about how the appeal process worked. It said, about Stage Two, “If you choose to present your case to the panel, the school representative will have the option to join the meeting virtually. The clerk will contact you on a date and time which will be notified to you in advance of the hearing. The panel will have read all the information that you have provided and will ask you questions. Any questions that the school have raised will also be asked.”
  3. There was an error in the school’s email regarding the date of submission for questions and evidence (it gave the date as 1 May when this was now June). However, Mrs Q replied via email on 2 June indicating that she wished to present her case verbally and that she would be submitting evidence. The clerk replied the following day asking her to send any additional information as soon as possible. Given Mrs Q was corresponding with the clerk to the governors, I consider it reasonable to assume she would have asked them if she needed any clarification or had concerns with the contents of the documentation. There is administrative fault in not using the right date but I do not consider that causes any injustice to Mrs Q as she had opportunities to address this.
  4. The school submitted all the questions it had received at Stage One from other parents over the course of the academic year – this was primarily questions relating to mid-year appeals. Mrs Q says she was confused that the questions did not relate to the year she was applying for. The school says it routinely circulates all questions to parents in relation to appeals held through the year. The school should have made the purpose of this document clearer (because it is entitled ‘Mid Year 8 appeals June 2020’) but this lack of clarity is not enough to make a finding of fault. This was sent for information.
  5. Because the school accepts Mrs Q’s version of the events surrounding her submission of the appeal forms, and that the forms were not properly directed to the clerk of governors (presumably because of the aforementioned unprecedented problems on that day and the lockdown following), it should have held her appeal based on the figures it submitted to the original appeal panel. There is no evidence that it did. Holding her appeal based on the original figures would have put Mrs Q in the situation she would have been in had the administrative processes had been handled correctly. The panel was told there were now more children in Year 7 than there had been when the first appeals were heard. Appeal panels have to consider each case on its own merits. On the balance of probabilities, though, the original panel may have decided the school could take at least some of the original appellants. Hearing Mrs Q’s appeal on amended figures is sufficient fault to warrant a fresh appeal.

Mrs Q’s appeal

  1. There were no additional questions from parents at Stage One. The panel decided the school was full. Looking at the evidence it considered, it is not at fault for making this decision. It decided it could not allow a child in without causing prejudice to others already at the school.
  2. At Stage Two, Mrs Q was invited to state her case. She told me she was concerned that the headteacher was not available to answer questions. The notes of the meeting do not show she was reminded that the headteacher was available, However, the documentation about the appeal had said the headteacher “will have the option to join the meeting virtually”. If there were questions she had that the panel could not answer, the head could have been contacted. She could have asked for clarification from the panel about this had she wished to do so. There is no evidence of fault.
  3. The panel considered what Mrs Q said but did not think the prejudice to R outweighed the prejudice to the school. Mrs Q is unhappy the school had tried to identify other suitable schools for R when one of the reasons she wanted R to attend was because the school was co-educational. However, ‘suitable schools’, within the meaning of the Education Act 1996, are schools that offer education which is ‘suitable to the child's age, ability, aptitude and special needs’ not that have a specific character in terms of being co-educational or being faith-based.
  4. After the meeting, the clerk of the panel sent Mrs Q a letter setting out why a place had been refused. Mrs Q said it did not mention all the information she had submitted but it does not need to; it did provide necessary information as to how the decision to refuse a place had been reached.

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Agreed action

  1. The school has agreed to arrange a fresh appeal for Mrs Q, with a new clerk and panel, on the basis of the figures that were presented at the earlier appeal. This will put Mrs Q back in the position she would have been in but for the administrative fault. The school is asked to arrange this within six weeks of the date of my decision.

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Final decision

  1. Fault leading to injustice and a remedy has been agreed.

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Investigator's decision on behalf of the Ombudsman

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