Summary: Miss X complained about the arrangements for her appeal for a place for her son at the School. We find there was fault in failing to send her a notice of the hearing which caused her to miss out on putting questions to the appeal panel. There was also fault in the way the panel decided on the format of the appeal under the temporary COVID-19 rules. Miss X has already been offered another hearing. We recommend some changes in procedure.

The complaint

1. Miss X complained that there was fault in the way her application and appeal for a place for her son at the School were dealt with during the COVID-19 pandemic. In particular she says she did not receive all the information she should have had including:
• a late application form
• a decision about how the appeal panel would consider the appeal, whether by remote hearing or on the papers
• a notice of the date of the appeal hearing
• a notice asking if she wanted to submit further evidence
• copies of all the questions and answers received.
2. As a result she says she did not know the date when the appeal panel would be considering her appeal and so did not have a chance to submit all her questions and comments.

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The Ombudsman’s role and powers

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, sections 26(1), 26A(1) and 34(3), as amended)
4. 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 panel followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.
5. 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.
6. If we are satisfied with the actions or proposed actions of the body complained about, 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

7. I discussed the complaint with Miss X and considered the information she provided. I considered the information the School and the County Council provided in response to my enquiries. I considered relevant law and guidance on school admission appeals. Miss X, the School and the County Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

School admission appeals

8. Parents have the right to appeal against a decision to refuse admission to a school. The admission authority must establish an independent appeals panel to hear the appeal.
9. The School Admission Appeals Code (‘the Appeals Code’) is statutory guidance for admission authorities and appeal panels to follow in arranging and deciding admission appeals. Under the Code appellants must have the opportunity to appear in person and present their case.

Impact of the COVID-19 pandemic

10. 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 31 January 2021. The government published guidance to accompany the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’ (‘the Guidance’).
11. The temporary regulations say 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 appeal panel has to be satisfied that:
• all parties will be able to present their cases fully;
• each participant has access to video or telephone facilities allowing them to take part throughout the hearing; and
• the panel considers the appeal can be heard fairly and transparently.
12. Where any of these conditions cannot be met, appeals may be decided based on written submissions only. The clerk to the appeal panel should contact the appellant as soon as possible to explain the temporary arrangements for appeals and check they have access to the necessary equipment for a remote hearing.
13. The Guidance says “In line with the temporary regulations, where a face-to-face appeal is not possible, the appellant should be offered a hearing by telephone or video conference wherever possible.”
14. Appellants must be given at least 14 days’ notice in writing of an appeal hearing, although they may waive their right to this in writing.
15. The Guidance advises that where appeals are decided on written submissions only, the admission authority may take the following approach.
• The admission authority’s representative and the parent should see each other’s written submission in advance and have an opportunity to send in questions. Both parties should be able to reply with answers to the questions and any further points they wish to make. They should see each other’s answers and have a chance to submit additional evidence if they wish, by a given deadline.
• 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 set out in the Appeals Code.

The School’s appeal arrangements

16. St Bede's Catholic High School is a voluntary aided school and so the governing body is the admission authority for the School. The County Council runs appeals on behalf of the School, dealing with all the arrangements for the hearing.
17. The County Council explains its temporary appeal arrangements as follows.
• It writes to all parents who have appealed explaining the changes. It includes a form for them to return asking them to say whether they would be able to participate in the appeal by video or telephone call, or whether they are happy to “proceed immediately on the basis decided by the appeal panel”.
• The appeal panel members consider the responses and decide on the format of the appeals.
• The Appeals Team writes to the parents 14 days before the hearing telling them the panel’s decision about how the appeal is to be heard and giving the date of the hearing.
• At the same time it encloses a copy of the appeals procedure and gives the parents an opportunity to ask questions and send in further evidence.
• Before the hearing it sends all parties a copy of the questions and answers from both sides.

Ombudsman’s guidance

18. The Ombudsman published a short guidance note, ‘Good Administrative Practice during the response to COVID 19’. This reminds councils that basic record keeping is vital during crisis working, and decision-making should be open and transparent even under emergency conditions. There should always be a clear audit trail of how and why decisions were made.

What happened

19. Miss X contacted the School in May 2020 to ask if there was a place available for her son, Y, in Year 7 from September 2020. She was aware the deadline for applications had passed several months previously but she explained the family circumstances which led her to apply.
20. The School told her all places in Year 7 were already filled in the normal admissions round. It advised her to appeal.
21. Miss X sent in her appeal on 11 May.
22. Evidence provided by the County Council shows that on 2 June the clerk and members of the appeal panel considered how the panel would conduct the hearings. 13 appellants had returned forms saying they could take part in a conference call or remote hearing. 13 said they wanted the panel to decide the format. The panel decided to hold all the hearings on written submissions only.
23. Miss X says on 3 June an officer from the Appeals Team at the County Council contacted her to check her address. The following day she had an email exchange with the Appeals Team. Miss X sent in proof of address. The Appeals Team said it would be sending her a form to complete and return about the appeal. Miss X confirmed she had received the form and would return it by email.
24. Miss X says the document she received on 4 June was the letter from the Appeals Team with the form giving her the options for the format of the appeal hearing. The email said the Appeals Team would be in contact again “in due course” with the date and details of the hearing.
25. Miss X replied ticking both options on the form. In other words she was happy for the appeal to go ahead either by remote hearing or as decided by the panel. She has provided a copy of her completed form and the covering email dated 4 June.
26. The Council says on 4 June it sent Miss X a letter by email telling her the panel had decided it would deal with her appeal as a written submission hearing. It gave the date of the hearing as 18 June 2020 and provided details of the panel members and clerk. The letter invited her to send in any questions about the School’s case or further documents or evidence she wished the panel to consider by five working days before the date of the hearing. The letter said if she felt having the appeal conducted solely on written information would disadvantage her because of a disability or communication barrier, she should contact the Appeals Team who would advise further. The letter said it enclosed copies of the School’s case for the appeal and details of the appeal procedure.
27. Miss X says she did not receive this letter and only saw it for the first time during our investigation.
28. On 9 June Miss X wrote to the Appeals Team asking if there was any news about dates for the appeal. She received a reply the following day saying provisional dates had been set for 16-18 June. But the Appeals Team said it had to give two weeks’ notice to parents and it was likely the dates would need to be put back because of the large number of appeals received. The email said “you will receive an email in the next week or two giving you a date for your appeal and explaining the way things will go forward”.
29. Miss X received an email on 16 June with the questions and answers from the Headteacher of the School. She says she wanted to comment on one of the statements made.
30. Miss X called the Appeals Team on 18 June to provide her comments. She was told the panel had already decided the appeal. It had taken place that day based on the written submissions.
31. Miss X received the appeal decision letter ten days later. The appeal was unsuccessful.
32. Miss X complained to the Ombudsman about the lack of information about the appeal and that she had not had a chance to submit further questions and evidence. She says she also realised she had not had a chance to complete a late application form for a place at the School and felt this would have made a difference to her appeal.
33. At the same time her partner contacted the County Council about the application process. Later, the Council on behalf of the School offered the parents another appeal. It said this was because they were under the impression the appeals form was the official application for a School place. The new appeal hearing has now taken place and the School has offered Y a place.

Analysis - was there fault causing injustice?

34. I do not need to consider whether there was any fault in the application process as Miss X will have been able to argue her case about this in her new appeal. I have considered the appeal arrangements.
35. I am satisfied that the process the County Council has outlined for giving parents the required notice of the hearing and information about the appeal complies with the temporary regulations and the Guidance. However, based on the evidence I have seen I am not satisfied it followed the process properly in this case.
36. The County Council says it sent the notice of the hearing to Miss X on 4 June. Miss X says this was the date when she received the first letter asking about her preferred format and she did not receive any notice of the date of the hearing. She has provided copies of the email exchanges on 4 June and 9 and 10 June. In my view it is unlikely the Appeals Team would have told her it would let her know the date of the hearing in a couple of weeks if it had already sent her the letter with this information. The Council has provided a copy of its standard letter, but not any covering email. It also seems unlikely Miss X would have contacted the Appeals Team with further comments on the School’s case on 18 June if she had known the hearing had already taken place that day. On balance I consider it more likely than not that while the Council intended to send out the notice of the hearing, it did not in fact do so before the hearing took place.
37. On reviewing the evidence the Council has now accepted it did not check its records when it received Miss X’s email on 9 June. It confirms had it done so it would have replied giving her the date and details of the hearing. The mistake occurred because of the difficulties of training and supervising new members of staff in the emergency working arrangements created in response to the COVID-19 pandemic.
38. This caused an injustice to Miss X as she did not have the chance to put her further questions and comments to the panel before the appeal was heard. I do not know if this would have made a difference to the outcome of the appeal. In these circumstances the Ombudsman usually recommends a fresh hearing. There is no need to recommend this now as Miss X has already been offered a re-hearing for other reasons. Miss X says in arranging this further appeal the Appeals Team sent the required letters. Nevertheless I make recommendations about the process below to ensure the same fault does not occur again.
39. I also had concerns about how the panel decided on the format for the hearings. The temporary regulations and the Guidance say appeals may take place solely on the written information where the conditions for holding a remote hearing set out in paragraph 11 above cannot be met. Appellants should be offered a hearing by telephone or video conference “wherever possible”. In this case half of the appellants said they could go ahead with a remote hearing. Yet the appeal panel decided to hold all the hearings on the papers only.
40. The County Council says the purpose of asking for appellants’ responses about available technology is simply to provide a guide for the panel to reach a decision about which format of appeal is the most appropriate for all appellants for each hearing. It says the emergency regulations do not give appellants the right to decide which process they wish to use. In this case, it says, the panel made its own decision on the format in line with the temporary revised guidance.
41. The temporary law and guidance is new and has not been tested in the courts. The Ombudsman cannot give a definitive interpretation of the law. So I cannot say whether the County Council’s interpretation is correct. However if the appeal panel decided it was not possible to hold remote hearings, the Ombudsman would expect it to record the reasons clearly, in line with good administrative practice. The panel should be able to demonstrate it is not taking a blanket approach to the format of all appeals but is open to considering individual circumstances. It should also ensure that in making its decision it takes proper account of the needs of appellants who may have difficulty in making their case in writing only and makes reasonable adjustments for them. The standard letter sent to parents gives them the opportunity to explain such difficulties. But the County Council has not provided any evidence that the panel considered this issue.
42. In this case the decision on the format of the appeals was recorded as ‘written submissions’ but there is no explanation as to how and why the panel reached the decision. I consider this is fault.
43. In response to my draft decision the County Council provided more information about how the Appeal Panel arrived at its decision. It explained that by June 2020 the Council had heard no appeals since March. There was a large backlog of appeals needing to be heard before the start of the next academic year. It said there were also concerns about the effective use of the technology available. Some panel members (especially in rural areas) experience poor quality telephone or broadband reception. So they were concerned about calls dropping, particularly when there are a large number of participants on line. Also at peak times, when all panel members are working to full capacity, it can be difficult to depend only on those panel members who have better connections.
44. It said panel members therefore needed to balance their own limitations and needs and appellants’ needs for a telephone/virtual conference, against the needs for a written submission.
45. Having considered this further explanation I am satisfied that the Appeal Panel considered the options properly when deciding to hold the appeals by written submissions, while at the same time giving those with particular needs the opportunity to explain why they needed a telephone or video conference hearing. The Council has now agreed that in the interests of transparency it will record the main reasons for the panel’s decision to hold written appeals so it can share the information with appellants.

Agreed action

46. Within one month of the final decision on this complaint the School will ensure that the County Council takes the following steps.
• Keep a record of the reasons for the Appeal Panel’s decision in each case whether to hold a remote hearing or consider an appeal on the basis of the written information only.
• Review its appeal arrangements to ensure it sends out the notice of appeal at least 14 days before the hearing and records that it has done so.

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Final decision

47. I have found fault in the appeal arrangements causing an injustice. I am satisfied with the action the County Council has agreed to take on behalf of the School and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman