Summary: Miss X complained that the independent appeal panel which heard her appeal for a place at the School for her son did not allow her to attend a remote hearing and did not consider her evidence properly. We find there was fault by the appeal panel in the way it considered the appeal. The School has agreed to offer a fresh hearing.

The complaint

1. Miss X complained that there was fault in the way the Appeal Panel decided her appeal for a place for her son the School. In particular she says:
1. she wanted to present her case but was told the appeal had to be held in writing; and
2. the panel did not consider all her evidence properly.
2. As a result she believes she did not have a fair hearing.

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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. 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

6. I considered the information Miss X provided. I considered the information the School and Lancashire County Council provided in response to my enquiries. I considered relevant law and guidance on school admission appeals. Miss X, the School 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

School admission appeals

7. 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.
8. 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.
9. 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
• admitting more children would prejudice the provision of efficient education or the efficient use of resources.
10. 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. It must take into account the appellant’s reasons for wanting a place at the school, including what that school can offer the child that the allocated or other schools cannot. If the panel considers the appellant’s case outweighs the prejudice to the school it must uphold the appeal.
11. The Appeals Code says the panel must ensure the appeal 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 raised by the parties and considered by the panel. It must 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.

Impact of the COVID-19 pandemic

12. 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’).
13. 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.
14. 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.
15. 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.”
16. 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.
17. 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

18. St Bede's Catholic High School is a voluntary aided school and so the governing body is the admission authority for the School. Lancashire County Council runs appeals on behalf of the School, dealing with all the arrangements for the hearing.
19. 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

20. 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

21. Miss X applied for a place for her son, Y, in Year 7 at the School from September 2020. In her application she said this was her first choice as Y needed a small school because of his mental health problems and history of being bullied. He was receiving support from the Child and Adolescent Mental Health Service (CAMHS) and waiting for an assessment.
22. There were over 500 applications for 140 places in Year 7. There are nine categories in the oversubscription criteria for the School, as follows:
1. Looked after and previously looked after children
2. Baptised Catholic children living in certain parishes
3. Baptised Catholic children with a sibling at the School
4. Other baptised Catholic children
5. Other children with a sibling at the School
6. Children attending certain feeder primary schools
7. Children from other Christian denominations
8. Children of other faiths
9. Other children.
23. Y was placed in category 9. All places were filled in categories 1-4 and so he did not get a place. The Council offered Miss X a place for him at her third choice school.
24. Miss X appealed against the refusal of a place in March 2020. She sent in a copy of Y’s Church of England certificate of baptism with the appeal. The reasons for her appeal included that:
• She was a single parent after Y’s father passed away and she had to work to support him.
• The School is near where her parents live and they could collect Y from school, whereas the allocated school was too far away for her to be able to transport him.
• Y needs a small school where he would be happy “based on his medical needs and assessments”. He was due to have a final assessment and diagnosis in a few weeks’ time.
• Y should not be discriminated against on the basis of his religion or for any other reason.
25. In late April Miss X sent further evidence to the Council’s Appeals Team. This included copies of supporting letters from Y’s primary school Headteacher and her MP. She also submitted medical evidence including information from Y’s GP dating back several years about Y’s mental health problems and history of being bullied. She provided confirmation of an appointment for an autism assessment. The GP’s letter also said he was aware Miss X needed to work and was reliant on her parents helping out with collecting Y from school “as he is terrified that he will be attacked on the school bus”.
26. The Appeals Team wrote to Miss X on 5 May to explain the changes to the appeal arrangements because of COVID-19. The letter said “virtual hearings are only permissible where all participants including the members of the Independent Appeal Panel, are able to be seen and/or heard throughout”. It asked Miss X to reply within five working days to say whether she would be able to take part in a virtual hearing by video or phone call or whether she was happy to proceed as decided by the Appeal Panel. The Council records show Miss X replied saying she could participate in a remote hearing.
27. On 2 June the Appeal Panel considered the responses received from appellants about their preferred format for the appeal. The record of the decision shows 13 said they could participate in a remote hearing, and 13 said they wanted to go ahead as decided by the Panel. The Panel decided it would hold all appeal hearings for the School by written submission.
28. The following day the Appeals Team wrote to Miss X by email confirming the arrangements for the hearing. The letter:
• said the appeal would be conducted as a written submission hearing on 18 June 2020
• enclosed a note about the procedure for the hearing
• enclosed a statement of the School’s case explaining the reasons for the admission decision.
• invited her to send in any questions she had about the School’s case or any further documents or evidence she wanted the Panel to consider, and gave her a deadline
• gave details of the Panel members and Clerk and information about how and when she would hear about the Panel’s decision.
29. The letter also said:

“If you feel that you will be disadvantaged in any way due to a Disability or communication barrier due to the appeal hearing being conducted by Written Submission then please inform the appeals team…and we will advise further”.

30. Later, although I do not know the date, Miss X wrote to the Appeals Team asking what would happen if Y did not get into the School. She said the allocated school was too far from home and a fourth school was not suitable “due to bullying previously” and would affect Y’s well-being.
31. On 14 June the Clerk to the Appeal Panel sent Miss X an email with a question from the Panel. The Panel noted she had referred to discrimination in her appeal. It asked if she had contacted the Council about this as advised on the appeal form if she thought her son had been discriminated against. She did not respond.
32. On the day of the hearing the Appeals Team sent Miss X a copy of the School’s answers to questions put by the Panel.
33. The appeal hearing took place on 18 June based on written submissions. The appeal was unsuccessful. The decision letter issued a week later confirmed the Panel accepted the School’s case at stage 1 of the appeal. In stage 2 it found that Miss X’s case did not outweigh the prejudice that would be caused to the School by admitting another pupil.

Council’s response

34. In response to our enquiries, the Council explained why it decided to hold Miss X’s appeal on the papers only, when she had said she was happy to have a virtual hearing. It said:

“The IAP [Independent Appeal Panel] do their best to accommodate all appellants, this can sometimes be challenging given the high volumes of Admission Appeals we have in Lancashire. Some of our panel members live in rural areas and poor quality telephone or broadband reception is a major consideration. The IAP had specific concerns about calls dropping, particularly when there are a large number of participants on line. Additionally at peak times, when all panel members are being utilised to full capacity, it can be difficult to just depend on panel members who have better connections.”

“The panel therefore balanced their own limitations and the needs of appellants for a telephone/virtual conference, against the needs for a written submission.”

Analysis – was there fault causing injustice?

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. The Council followed the guidelines in this case. It gave adequate notice of the hearing, circulated the School’s case in advance as well as its answers to the Appeal Panel’s questions. It gave appellants the opportunity to submit questions and evidence before the hearing.
36. Miss X says she was prepared to have a remote hearing but the Appeal Panel decided to deal with the appeal on the papers only. My view is that the Panel considered this matter properly, in line with the Guidance. One of the issues it had to consider was whether all participants, which includes Panel members, would have access to technology which would allow them to take part throughout the hearing. The Council has explained that Panel members could not give these assurances.
37. The Council gave Miss X the opportunity to say whether there were any special reasons why she felt she would be disadvantaged by having the appeal heard on written submissions only. She did not respond.
38. Based on the evidence I have seen I do not find fault in the way the Panel made the decision about the format of the appeal.
39. However the record of the decision the County Council has provided does not explain how and why the Appeal Panel reached its decision, so the decision-making is not transparent. I consider there is fault in the recording of the decision.
40. The County Council has already accepted our recommendation in relation to another complaint to keep a record of the reasons for the appeal panel’s decision whether to hold a remote hearing or consider an appeal on the basis of the written information only. So there is no need to make further recommendations on this issue here.

Appeal decision-making

41. The Clerk’s notes of the hearing and the appeal decision letter show the Appeal Panel followed the two-stage process and considered Miss X’s written appeal and all the supporting evidence she provided. The notes and the decision letter list all the documents she submitted and confirm the Panel read and considered them. It gave detailed reasons for accepting the School’s case that admitting extra pupils would be detrimental to the education of pupils at the School.
42. In stage 2, the balancing stage, the Panel noted all the reasons Miss X gave in her application and appeal for wanting Y to attend the School, except for the question of bullying.
43. The reasons the Panel gave for deciding Miss X’s case was not strong enough to outweigh the prejudice to the School were as follows.
• It felt any secondary school could support a child with autism, and the School was not a specialist school.
• Miss X had not provided any further information about why she felt Y had suffered discrimination.
44. However the Panel did not explain in the decision letter or in the Clerk’s notes why it rejected Miss X’s arguments about the School being near her parents who could help with collecting Y, or about why he would feel safe from bullying there. It is not clear from what Miss X said why Y would be at risk of bullying at the school he had been allocated. But the Panel did not explore this issue further. I consider it should have done as Miss X had raised it as a concern. It could have done this with a question to her in advance of the hearing, as it did with the question of discrimination.
45. I consider the Appeal Panel was at fault in failing to explain the reasons for its decision adequately. Miss X is therefore left in doubt about whether the Panel reached its decision properly. This uncertainty is an injustice to her.

Agreed action

46. The School and the County Council have agreed to offer Miss X a fresh appeal hearing with a different Panel and Clerk within one month of the final decision on this complaint.

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Final decision

47. I have found that the Appeal Panel was at fault. It failed to record the reasons for its decision about the format of the appeal and failed to give adequate reasons for its appeal decision. The agreement to offer Miss X a fresh appeal is a satisfactory remedy and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman