The Ombudsman's final decision:
Summary: We upheld Miss X’s complaint about an unsuccessful school appeal for her son. While there was no fault in the Admission Authority’s approach to holding appeals, there were errors in its record keeping and decision letter. This caused uncertainty for Miss X about how the panel reached its decision. The Admission Authority agreed to apologise to Miss X and remind clerks of the requirements for note taking and decision letters.
- Miss X complains about an unsuccessful school appeal for her son, Y. She says he should have been in a higher oversubscription criterion because of his involvement with a youth group. She is also unhappy the appeal was decided on written submissions only and she did not have an opportunity to present her case. She would like the appeal to be heard again.
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)
- We cannot question whether an admission authority’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- When an admissions authority commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
- 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)
How I considered this complaint
- I have considered the complaint made by Miss X and the documents she provided.
- I considered the Admission Authority’s comments about the complaint and the documents it provided in response to my enquiries.
- Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legislation and guidance
- Statutory guidance about school admissions and appeals is in The School Admissions Code and School Admission Appeals Code, published by the Department for Education.
- In 2020, the government introduced emergency regulations because of the COVID-19 pandemic. These are the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These temporarily amend the existing regulations and will be in force until September 2021. The government published guidance to go with the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’. on 24 April 2020.
- Parents and carers have the right to appeal an admission authority’s decision not to offer their child a school place. An independent appeal panel decides the appeal.
- A clerk supports the appeal panel. Parents can send information in support of their appeal. The clerk must send all papers for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority.
- The School Admission Appeals Code says appeal panels must allow appellants the opportunity to appear in person and present their case. The 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 they are satisfied that:
- the parties can present their cases fully.
- each participant has access to video or telephone facilities allowing them to engage in the hearing.
- the appeal hearing can be heard fairly and transparently in this way.
- The clerk should contact the appellant and presenting officer, in line with the amended timetable. The presenting officer should be provided with a copy of the appeal lodged and asked to submit the admission authority’s arguments and evidence. The appellant should be given the chance to send more evidence if they wish. All submissions should be in writing.
- The panel and clerk should meet by telephone or video conference to consider the submissions and draw up questions for the appellant and presenting officer. The aim should be to clarify points made and seek further relevant information. They should bear in mind that appellants may be less familiar with the information and arguments required, and may have less experience preparing written submissions.
- The clerk should send the questions and all the papers to each of the parties. For example, the presenting officer’s submission will be sent to the appellant with both sets of questions, and vice versa.
- Both parties should reply with answers to the questions, and any further points they wish to make. On receipt, the clerk should send each party’s submission to the other party. The parties should be informed that any information or evidence not sent by the relevant deadline might not be considered by the panel.
- The panel should meet by telephone or video conference, with the clerk, to consider all the information and reach a decision in the same way as prescribed in the Appeals Code.
- the admissions arrangements complied with the requirements set out in the School Admissions Code;
- the admission arrangements were applied correctly; and if
- admitting more children would prejudice the provision of efficient education or the efficient use of resources.
- St George’s Church of England School is a foundation school and its governing body is its admission authority.
- The Admission Authority asks parents to complete a supplementary form to show how their child meets the admissions criteria if the school is oversubscribed. It includes a form for clergy members to sign to confirm the information provided by parents about church attendance and participation in church affiliated youth groups.
- The oversubscription criteria prioritise looked after children and children who attended the school in the primary phase. These are followed by children of staff members and those with siblings already attending the school. It then prioritises children who attend church, whose parents attend church or who are connected with a church through membership of a youth group. Finally, children with a medical need or those living nearest the school will be considered for places. All applications are ranked from one to 17 depending on which criterion the child meets.
Approach to appeals as a result of COVID-19
- The local council coordinates appeals for the Admission Authority through the Kent Panel. This operates appeals for 56 secondary schools and 118 primary schools. Appeals for secondary schools should have begun on 20 April to be completed by 17 June. The council received over 2,000 appeals for entry to school in September 2020.
- The council tried holding telephone and video conference appeals. Following these, it had concerns about satisfactory access to technology and internet in rural areas. It also found the appeals to be lengthy and difficult for clerks to record accurately. It decided it would not be possible to conduct all the appeals in this format before the start of the new school year, and it could not meet the requirements set out in paragraph 13.
- The council considered holding appeals in line with the process described in paragraph 14. It noted the difficulties faced by officers in collecting and sharing large quantities of information with limited access to council offices. It felt following this process would place further strain on panel members, as panels would need to meet more than once to reach a decision. It decided it would not be possible to hold panels in this format in the necessary timescales.
- The council decided on an alternative approach. It invited appellants to send any further information in support of their appeal. It provided the Admission Authority’s case so the appellant could consider it when deciding what information to send. It did not provide an opportunity for asking questions. It said if panel members felt there was information missing, they would have to make a decision without it.
- The council noted that appellants who could evidence they could not take part in a written appeal could ask it to make alternative arrangements.
- Miss X applied for a place at St George’s Church of England School for her son, Y, in the normal admissions round. She provided a supplementary information form which showed he was connected with a church through a youth group, but a member of the clergy had not signed the form.
- As there were more applications than places, the school used its oversubscription criteria to decide which children should be offered a place. It did not offer Y a place. The notes from the panel suggest he was ranked at criterion 17, based on the distance he lives from the school. The last place offered was to a child in criterion 8, a child who attended church occasionally for church festivals. This child lived further from the school than Y.
- Miss X appealed the decision not to admit Y. She cited Y’s involvement with the youth group, his emotional connection to the school, the academic offer and the sporting facilities available.
- The school confirmed receipt of the appeal at the end of March 2020. It wrote to Miss X again in May setting out the arrangements for the hearing. The school said the clerk and panel would meet by teleconference and would have a copy of Miss X’s appeal documents. It invited Miss X to provide any further information she wanted the panel to consider. It provided a copy of the Admission Authority’s case which included information about why Y’s application was unsuccessful. The school also advised Miss X to make the panel aware if there were any barriers to her providing a written submission.
- Miss X sent further information in support of her appeal. She said she had learning difficulties and had overlooked the need for a member of the clergy to sign the form. She thought a signature from a leader at the youth group was enough. She provided an updated form with the correct signature which showed Y attended church occasionally for church festivals.
- The panel met remotely in late June. At stage one, the panel considered the school’s case that admitting more pupils would prejudice its capacity to provide efficient education or use its resources. The clerk’s notes show the panel was satisfied the school had applied its admission arrangements correctly and impartially. However, the panel decided the school could admit seven further pupils without causing prejudice.
- At the second stage, the panel considered Miss X’s appeal. The notes show the panel considered Miss X’s submission including the second supplementary information form. Two panel members felt there was not enough evidence that Y’s case outweighed the prejudice to the school. The chair of the panel felt there were strong grounds for Y’s case to outweigh the prejudice. This was because if the correct form had been submitted on time, it is likely he would have secured a place at the school.
- The panel carried out a ranking exercise to decide which children to admit. Panel members individually scored the strength of each child’s case out of four, with four being exceptional grounds to admit the child, and zero where the child’s case did not outweigh prejudice to the school. The panel members’ scores were added together so the maximum score was 12. Then each child was ranked from highest to lowest. Children with the same score were grouped in the same rank. Y was given a total score of four, placing him in the group ranked sixth.
- The panel identified seven children it felt had made the strongest case for admission and decided to uphold their appeals. These children were all in the groups ranked third or higher and so had higher scores than Y. It refused the remaining appeals.
- The clerk wrote to Miss X with the panel’s decision. It said the panel had considered her reasons for requesting a place but decided they were not strong enough to outweigh the prejudice to the school.
- In response to my investigation the council, acting on behalf of the Admission Authority, provided more information about its approach to appeals in this period. It said:
- it had to balance providing a fair hearing against the risk of the appeal system collapsing due to the difficulty of holding so many remote appeals.
- it developed a system to store and dispatch case papers to all parties electronically. This required training to be delivered to all clerks and panel members in 71 separate training sessions.
- due to the guidance not being published until April and the need to set up new systems and deliver training, secondary school appeals did not begin until 8 June.
- ninety per cent of its panel members were identified as being in a group vulnerable to COVID-19. Almost a third of panel members decided not to take part in this round of appeals. The council was concerned about the impact on the remaining members of holding two meetings for each appeal.
- delivering appeals in line with the process set out in paragraph 14 would have made it impossible to complete appeals before the end of the school year. Using its process, the council was able to complete all appeals before the start of the summer holiday.
- it carefully considered and balanced the competing challenges and pressures before deciding to progress with appeals in the way it did. It considers the approach it took to be the fairest way of ensuring all families had their appeals heard in good time.
- The council, acting on behalf of the Admission Authority, considered holding appeals remotely and decided it was not possible to do so fairly. I have seen no reason to question this decision. Miss X did not ask for any adjustments to take account of her learning difficulties. Therefore, there is no fault in the decision to hold appeals based on written submissions in this case.
- The Ombudsman expects admission authorities to follow non-statutory guidance unless they can provide evidence for any decision to depart from it. In this case, the council which conducted appeals on behalf of the Admission Authority has provided a detailed and robust explanation of its decision to depart from the process outlined in paragraph 14. I consider that while the process limited the ability of the panel to ask questions, on balance the process used offered a fair outcome to families, enabling their appeal to be heard in time to plan for the next academic year. Therefore, there is no fault in the process the Admission Authority used to decide its appeals.
- The panel notes from stage one of the appeal summarise the school’s case, but do not say how the panel used this information to decide whether it would prejudice the school to admit more pupils. The panel decided the school should admit seven more pupils to create seven classes of 32 pupils but has not provided reasons for its decision. The clerk’s notes do not explain how the panel arrived at its decisions. This is fault.
- There is no fault in the panel’s decision not to take account of the second supplementary information form Miss X sent for Y. It was completed after the normal admission round closed. It was not fault for the panel to accept the school made its decision based on the form available when places were offered.
- While the clerk’s notes do refer to how the panel weighed the individual points of Miss X’s appeal, the decision letter does not. This was fault and caused uncertainty for Miss X about how her appeal was considered. As part of this investigation, I provided Miss X with a copy of the clerk's notes so she could see how the panel reached its decision.
- It should be noted that while I have not found fault with the approach to appeals in the 2020 admission cycle, it does not follow that this approach would remain acceptable in the 2021 admission round, when admission authorities and appeal administrators have had a longer period to adapt to the changes imposed because of COVID-19. Future complaints will be decided on their own merits, considering the circumstances at the time.
- When an Admission Authority arranges for another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the council which coordinated the appeal, I have made recommendations to the Admission Authority.
- Within one month, the Admission Authority will:
- apologise to Miss X for the lack of detail in its decision letter;
- remind clerks their notes should include reasons for any decisions made by the panel at either stage; and
- remind clerks decision letters should include the factors considered by the panel and clear reasons for the panel’s decisions.
- I uphold this complaint. Miss X was caused an injustice by the actions of the Admission Authority and it has agreed to take action to remedy this.
Investigator's decision on behalf of the Ombudsman