Summary: Miss V complained an independent appeal panel had failed to act fairly when considering her daughter, W’s, case for a place at the school of her choice. This caused huge distress to Miss V and W. The Council has agreed to convene a fresh appeal panel, with a new clerk, to hear the case.

The complaint

1. Miss V complained the independent admission appeals panel failed to properly consider her case for her daughter, W, to be admitted to the school of her choice.

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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 the relevant 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. 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.
5. 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

6. I considered the information Miss V submitted with her complaint and spoke with her on the telephone. I made enquiries with the Council and assessed its response. I have considered the original School Admission Appeals Code from 2012 and the amended Code following COVID-19, which is anticipated to be in force until January 2021. I sent Miss V and the Council a copy of my draft decision to take any comments they made into account before issuing a decision.

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What I found

Background

7. Miss V applied to the school (a single-sex school) as her only choice but was unsuccessful. Although some children had been admitted from feeder schools there had not been places for all such children. W was one of those children. W was allocated a place at another school.
8. Miss V exercised her right to appeal the decision to refuse W a place. Appeals are heard by independent appeals panels.

Law and guidance

9. The Code is clear that “Appeal panels perform a judicial function and must be transparent, accessible, independent and impartial, and operate according to principles of natural justice”. This is not superseded by any requirements of the revised Code.
10. Appeals, for non-infant classes, are heard in two stages.
11. At the first stage the panel considers whether ‘the admission arrangements complied with admissions law or whether the law had been correctly and impartially applied, and the child would have been offered a place if the arrangements had complied or had been correctly and impartially applied; or if the admission of additional children would not prejudice the provision of efficient education or efficient use of resources’.
12. If the panel finds the admissions arrangements complied with the law, the child has not missed out on a place, or that the admission of additional children would prejudice others at the school, it would need to go to the second stage.
13. The second stage is the ‘balancing stage’ where the panel weighs up the prejudice to the school for having an additional pupil with the prejudice to the child for not being allowed into the school. When considering prejudice, the 2012 code says “Whilst the panel must take into account the school’s published admission number, the admission authority must be able to demonstrate prejudice over and above the fact that the published admission number has already been reached”.
14. In accordance with natural justice, it would be expected that the same panel would consider all cases for the school where possible. The new regulations support this as they allow that ‘where an appeal panel is constituted to consider the appeal as a panel of two members…it may continue to decide the appeal as so constituted’. This means that if a panel starts with three members, and one of them is absent, the appeal can still continue with two members.
15. Also in line with the 2012 Code, the admission authority must provide a presenting officer to present the decision not to admit the child and to answer detailed questions about the case being heard and about the school.
16. Following the panel, the parent receives a decision letter. The 2012 Code is clear; “The panel must ensure that the decision is easily comprehensible so that the parties can understand the basis on which the decision was made. The decision letter must contain a summary of relevant factors that were raised by the parties and considered by the panel. It must also give clear reasons for the panel’s decision, including how, and why, any issues of fact or law were decided by the panel during the hearing”.

Miss V’s case

17. The panel chairman acknowledged that one member of the panel had been taken ill. Therefore, the appeal panel was constituted with two members for the first day. This is not fault. However, there were no grounds for the third member to return on the second day after not having heard the school’s case on the first day. This is fault.
18. At the first stage the presenting officer, when asked about there being two panel members, is recorded as saying to those present; “if you want 3 panel members then state now so we can adjourn and rehear, don’t appeal again to get another appeal based on the panel numbers. We may be able to adjourn a particular appeal to get 3 panel members to decide if that’s what a parent wants”. The guidance says there can be two panel members so there would be no grounds for parents to appeal because there were not three members. In any case, this was for the chair or the clerk to say. It was not the role of the presenting officer to define how appeal panels might be constituted or express a view about the same. This is fault.
19. Miss V says at one point, when she said W had the pupil premium, the presenting officer made a remark. The clerk’s notes provide no detail but there is a single line (unattributed) that “Pupil premiums listed on gov.uk and breaks down by school”. Given the clerk has put this statement on record, it would have been appropriate to state the context. This may be poor administrative practice but it not sufficient to reach a finding of fault. This is because the overall accuracy of the notes is not in question.
20. The panel satisfied itself the school was full and prejudice would result if another child was allowed in. The panel also satisfied itself the admissions arrangements complied with the law. One of Miss V’s arguments was that a child had got into the school fraudulently – this was primarily for the admissions authority. The panel could have looked at it although, on the balance of probabilities, it could not say that W had lost her place because of it. I am not finding the panel at fault.
21. The panel decided to move to Stage Two and explained it would balance the arguments put forward by the school and from each case.
22. By this point, the school’s case is proven. I can see the presenting officer attended so detailed questions about the school could be answered. However, parents continuing to pursue arguments about the school being able to allow their child in or arguing their child should have been given a place on admission could be re-focused by the clerk or chair to discuss the reasons why the prejudice to their child outweighed the prejudice to the school.
23. The presenting officer made comments on a letter of support and discussed the address Miss V had applied from. He asked Miss V whether she accepted the decision not to offer a place was “impartially applied to W’s case”, when it was one of Miss V’s arguments that it was not. At the end of the hearing, the presenting officer said his “recommendation to panel (was) to refuse on the grounds that the school is full”. The panel had acknowledged it needed to balance the prejudice to both sides and it had already decided the school was full. It was up to the panel, not the presenting officer, to decide whether Miss V’s case outweighed the prejudice to the school. This is fault.
24. One of the panel members said at Stage Two; “the single-sex issue is not that big as (Miss V had) not applied to x school in (another Council’s area)”. Although it is not fault to consider other schools that might meet a child’s needs, as x school was in a different Council’s area, and was not a nearby school, it would not have met W’s needs of being with her friends and being in a single-sex environment. Either the clerk or the chair could have intervened on this point.
25. The decision letter does mention some of the factors in the appeal although all the ones mentioned in its summary are negative; there is nothing about the reasons Miss V presented to show that W would be an asset to the school. The panel’s view is that these were not at the forefront of the appeal but I disagree. The letter suggests Miss V did not convey positive reasons why W would be an asset to the school, which is not the case.
26. Although the letter says the clerk is the person writing the letter, neither the clerk nor the chair have signed it. On balance, I am making a finding of fault. Miss V cannot be sure the panel properly considered what she said and cannot be sure who sent the letter.

Agreed action

27. The Council has agreed to offer Miss V a fresh appeal for the school with a new panel and clerk. It is asked to do this 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