Summary: Mr Q complained an independent appeals panel had failed to properly consider his appeal for a school place for his daughter, R. This had caused the family significant distress. There is evidence of fault and the school has agreed to hold a fresh appeal.

The complaint

1. The complainant, whom I shall call Mr Q, complains there was fault in the way the admission appeals panel considered his appeal for his daughter, R. He also complains that another child obtained a place at the school when his daughter did not even though they presented identical information to him.

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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 authorities 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 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

5. I considered the information Mr Q provided with his complaint. I made enquiries of the Council and assessed its response. I sent the school and Mr 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

Statutory guidance

6. Statutory guidance about school admissions and appeals can be found in the School Admissions Code and School Admission Appeals Code (2012). Both are published by the Department for Education.
7. In 2020 emergency regulations were introduced because of COVID-19. These 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.
1. 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 they are satisfied that:
2. the parties will be able to present their cases fully
3. each participant has access to video or telephone facilities allowing them to engage in the hearing at all time
4. the appeal hearing is capable of being heard fairly and transparently in this way
8. 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.
9. The 2020 guidance also says that where a panel member needs to withdraw part way through the appeals process and it is not reasonably practicable for the panel to be reconstituted in the normal way for a reason related to the incidence or transmission of COVID-19, a panel made up of at least 2 members may continue to consider and determine the appeal.
10. 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.
11. 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’.
12. I am considering Mr Q’s appeal in the light of the 2012 and 2020 appeals guidance.

Background to the appeal

13. Mr Q applied, as his first and only choice, to a faith-based secondary school for his daughter, R.
14. R was unsuccessful and was allocated another school, which was some distance from her home and not faith-based.
15. Mr Q appealed to the first-choice school.
16. The independent appeal panel said that, because of COVID-19, it wanted to make sure anyone appealing had the opportunity to do so in the best way for them. It suggested this could either be remotely, over the telephone or in writing. Mr Q accepted a written appeal and this preference was agreed.
17. I have seen evidence the independent appeal panel asked Mr Q questions about his case. He had the opportunity to question the school’s case. The information was considered, and circulated, appropriately. Mr Q was later told the panel would only have two members but this is not fault under the 2020 regulations.
18. R would have been given a place at the school if Mr Q had filled in the Supplementary Information Form correctly. This was in addition to the online application that Mr Q filled in and was sent to him afterwards by the school. As Mr Q was applying to a faith-based school, the school wanted evidence that R was of the faith. R was of the faith but Mr Q did not provide evidence of this when he returned the form. Mr Q provided the appropriate evidence only once R was refused a place.

Mr Q’s appeal

19. As I said above, Mr Q had the opportunity to challenge the school’s case and I can also see the panel asked him questions about his appeal in writing.
20. Appeals must follow the two-stage process. I cannot see evidence that the panel satisfied itself the school was full. This is fault.
21. The appeal panel went to stage two to hear Mr Q’s case and to balance the prejudice to R for not attending the school against the prejudice to the school for having to take an extra child.
22. Mr Q’s case to the panel was that R was of the faith and he had already provided evidence to the school to prove this. This was submitted to the panel.
23. The appeal repeated the questions that had been asked of Mr Q. But it did not reflect on his answers. It could have considered whether it was reasonable for Mr Q to have misinterpreted what information the supplementary information form asked for. I have seen a copy of the form. It says; ‘If you think that your application should be considered under criteria 1, 2, 3, 4 or 5 of the (school’s) admissions policy then you must supply the information below and attach the evidence requested’. These categories are for children of the faith although the form does not say this, which was Mr Q’s argument. The form asks specifically for baptism information, which Mr Q provided (R was confirmed into the faith not baptised. The baptism certificate was not evidence of her being of the faith) and it asks for her religion, which is wrongly entered as the religion she entered into following her baptism.
24. The panel concluded that it should turn R down for a place at least partly because Mr Q was not at the panel meeting even though Mr Q had accepted a written appeal. This is fault.
25. The letter sent after the appeal does not reference the evidence Mr Q presented that his daughter was of the faith. It refers to R’s baptism certificate instead.
26. Mr Q has since told me that the child of someone he knows was given a place even though the person submitted the same information that he did. I can only consider his complaint.

Agreed action

27. Because I cannot see the panel satisfied itself the school was full and because it turned down Mr Q’s appeal at least partly because he wasn’t present, the school has now agreed to arrange a fresh appeal. It is asked to do this with a fresh panel and clerk within ten weeks of the date of my decision.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman