Summary: We did not uphold Mr and Mrs X’s complaint about an unsuccessful school appeal for their son. There was no fault in the Council’s decision to hold appeals based on written submissions and the appeal panel took account of the evidence Mr and Mrs X provided.

The complaint

1. Mr and Mrs X complain about an unsuccessful school appeal for their son, Y. They say the panel overlooked evidence they provided and did not consider the appeal fairly. They are also unhappy the appeal was decided on written submissions only and they did not have an opportunity to make their case. They would like the appeal to be heard again.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’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)
4. If we are satisfied with a council’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

5. I have considered the complaint made by Mr and Mrs X and the documents they provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. Mr and Mrs X and the 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

Legislation 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. 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 are due to remain in force until 30 September 2021. The government published guidance to accompany the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’.
10. Outlined below are key points from the School Admissions Code and School Admission Appeals Code. Where the emergency regulations introduced a temporary change to the admission appeal rules, it is identified.
11. 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.
12. A clerk supports the appeal panel. Parents can send information in support of their appeal. The clerk must send all papers required for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority.
13. 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 will be able to 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.
14. Where this is not possible, appeals can be conducted entirely based on written submissions. For the panel to make a decision which is fair and transparent, they must ensure the parties can fully present their case by written submissions. The emergency guidance suggests in these circumstances the admissions authority may follow this process:
• The clerk should contact the appellant and presenting officer, in line with the amended timetable. The presenting officer should have a copy of the appeal lodged and be 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.
15. When making the decision, panels must follow a two-stage decision making process. At stage one, the panel examines the decision to refuse admission. The panel must consider whether:
• the admissions arrangements complied with the requirements set out in the School Admissions Code;
• the admission arrangements were applied correctly; and if
• the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.
16. If a panel decides that admitting further children would prejudice the provision of efficient education or the efficient use of resources, they move to the second stage: balancing the arguments. The panel must balance the prejudice to the school against each appellant’s case for their child to be admitted.
17. In multiple appeals, where the panel finds there are more cases which outweigh prejudice than the school can admit, it must uphold those with the strongest case for admission. When a panel decides a certain number of children could be admitted without causing prejudice, it must uphold at least that number of appeals.
18. Appeal panels must either uphold or dismiss an appeal and must not uphold an appeal subject to any conditions. Appeals must be decided by a simple majority of votes cast. A panel’s decision that a child shall be admitted to a school is binding on the admission authority.
19. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
20. The appeal panel must write to the appellant with its decision and the reasons for it. 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.
21. The guidance accompanying the emergency regulations urged admission authorities to settle appeals lodged in the main admissions round before the start of the September term wherever possible.

Admission to grammar school

22. Children who wish to be considered for entrance to grammar school sit the ‘Kent Test’. Children receive three standardised scores – one for English, one for maths and one for reasoning, and a total score. For admission to grammar school, children need a total score of 330 or more, with a score of 110 or more in each of the three tests.
23. The school in this case is a grammar school and admits children who reach the required scores in the Kent Test. When the school is oversubscribed, it admits children according to its admission arrangements. The school prioritises places for looked after children, those with siblings in the school and those with medical or health needs which mean they need to attend this school. It then prioritises those who live within three miles of the school, those who live within certain named parishes, and finally all others based on distance from the school.
24. The School Admission Appeals Code says panels may be asked to consider an appeal where the appellant believes the child did not perform at their best on the day of the test. In those cases, the panel must only uphold the appeal if:
• there is evidence to show the child is of the required academic standards. This may be in the form of school reports of test results or a supporting letter from their current school; and
• the appellant’s arguments outweigh the admission authority’s case that admitting further children would cause prejudice.

Approach to appeals because of the COVID-19 pandemic

25. The Council coordinates appeals through the Kent Panel. This manages 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.
26. 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.
27. 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 its 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.
28. The Council decided on an alternative approach. It invited appellants to send any further information in support of their appeal. It provided the school’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.
29. The Council noted that appellants who could evidence they could not take part in a written appeal could ask it to make alternative arrangements.

What happened

30. Y sat the Kent Test in September 2019. He scored 335 in total but his score in maths fell short of the 110 needed for a place in grammar school. Mr and Mrs X applied for a grammar school place for Y in the normal admissions round.
31. 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 as he had not met the school’s entry requirement. The last place was offered to a child who lived in one of the named parishes, 13 miles from the school. Y lives 16 miles from the school.
32. Mr and Mrs X appealed the decision not to admit Y. In their appeal to the Council, they said Y’s overall score was above the pass mark and they were shocked that his maths score was not at the required level. They said maths had always been Y’s strongest subject. They provided copies of his school reports, results of aptitude tests and a letter from his headteacher to support the appeal. Mr and Mrs X also cited Y’s enthusiasm for the school and his extra-curricular interests.
33. The Council wrote to Mr and Mrs X in May setting out the arrangements for the hearing. It said the clerk and panel would meet by teleconference and would have a copy of Mr and Mrs X’s appeal documents. It invited Mr and Mrs X to provide any further information they wanted the panel to consider. It provided a copy of the school’s case which included information about why Y’s application was unsuccessful. The Council also advised Mr and Mrs X to make the panel aware if there were any barriers to them providing a written submission. It explained why the panel would not accept copies of practice test papers in support of an appeal.
34. The panel met remotely in 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 school’s case said it could accommodate an extra 14 pupils. The clerk’s notes show the panel was satisfied the school had applied its admission arrangements correctly and impartially. The panel agreed the school could not take another form of entry but could admit 15 pupils without causing prejudice.
35. At the second stage, the panel considered Mr and Mrs X’s appeal. The panel noted their concerns over Y’s low maths school and the evidence they provided but decided there was not enough evidence he was of the required standard for grammar school in maths.
36. 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 and provided reasons for their score. Children considered not to be of the required standard for grammar school, or who were of the required standard but whose case did not outweigh prejudice to the school, received a score of zero. Children who were of the required standard for grammar school and whose cases outweighed prejudice to the school were given a score between one and four, depending on the strength of their case. The panel members’ scores were added together so the maximum score was 12. Y received a score of zero.
37. The panel’s ranking exercise identified 15 children it felt had made the strongest case for admission and it decided to uphold their appeals. These children all scored at least eight out of 12. It refused the remaining appeals.
38. The clerk wrote to Mr and Mrs X with the panel’s decision. It said the panel had recognised Y’s academic strengths, but it was satisfied the school had shown he had not met the criteria for transfer to a grammar school. It said it considered the points Mr and Mrs X had made including evidence of Y’s ability and his nerves on the day of the test, but it could not justify making an exception in his case.
39. Mr and Mrs X complained to the Council. They asked the Council to explain why Y’s appeal was not successful based on the evidence they sent. In response, the Council sent the clerk’s notes of the panel. Mr and Mrs X remained concerned and the Council directed them to the Ombudsman.
40. In response to my enquiries, the panel provided an explanation of what further evidence it might have expected to see to support Mr and Mrs X’s case. The panel said it would have liked to see more detailed, stronger support from Y’s primary school. It said the supporting letter provided did not explain Y’s low maths score and that underperformance did not appear to have been an issue in the past. The panel said the school had not provided any comment on Y’s mock test result and the supporting letter was brief and focused on Y’s performance in year five. It said it would have liked to see a more in-depth report on progress and achievement in maths with contributions from Y’s year five and six teachers. The panel said the supporting evidence could have included specific curriculum information showing coverage and understanding at a higher level, an analysis of strengths and weaknesses and Y’s rate of progress.
41. In response to another recent investigation by the Ombudsman, the Council 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 send 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 completed 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.

Analysis

42. The Council considered holding appeals remotely and decided it was not possible to do so fairly. I have seen no reason to question this decision. Mr and Mrs X did not provide evidence to suggest they could not take part in a written appeal. Therefore, there is no fault in the decision to hold appeals based on written submissions in this case.
43. 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 has provided a detailed and robust explanation of its decision to depart from the process outlined in paragraph 14. We have previously investigated the Council’s approach to appeals in this period and did not find fault. 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.
44. The role of the Ombudsman is to consider procedural fault. We do not question the professional judgement of the appeal panel unless there is evidence of procedural fault. Provided the panel made its decision in a way which is procedurally sound, I cannot criticise the judgment it eventually reached.
45. The clerk’s notes show the panel took account of the evidence Mr and Mrs X provided. I cannot comment on the supporting evidence provided by Y’s school. The Council provided evidence of the training it delivers to panel members about the Kent Test. It said the panel in Y’s case included a recently retired headteacher and a former chair of governors who would both have a good understanding of what would be expected of a grammar school child. I am satisfied the Council ensured the panel was sufficiently skilled to assess the evidence Mr and Mrs X provided in support of their appeal for Y. I do not find fault with the Council’s handling of the appeal.

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Final decision

46. For the reasons explained in the Analysis section, I have completed my investigation and do not uphold Mr and Mrs X’s complaint.

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Investigator's decision on behalf of the Ombudsman