Summary: Mr and Mrs B complained the admissions authority did not carry out their son’s school placement appeal correctly and it was refused. This caused the family distress. We found fault with the admissions authority causing injustice. The admissions authority has agreed to apologise to Mr and Mrs B to remedy this injustice.

The complaint

1. Mr and Mrs B complained the admissions authority did not carry out their son’s school placement appeal correctly and it was refused. This caused the family distress.

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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 cannot question whether a 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)
3. 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

4. I considered:
• Mr and Mrs B’s complaint and the information they provided;
• documents supplied by the Admissions Authority;
• relevant legislation and guidelines; and
• the admission authority’s policies and procedures.
5. Mr and Mrs B and the admission authority had the opportunity to comment on a draft decision. I considered any comments before I made my final decision.

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What I found

Legislation and guidance

6. The Department of Education published Statutory guidance about school admissions and appeals, the School Admissions Code and School Admission Appeals Code.
7. In 2020 emergency regulations were introduced because of COVID-19 called the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the 2020 regulations). They temporarily amend the 2020 regulations and will be in force until 31 January 2012.
8. 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.
9. The 2012 guidance says 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 take place, they should be conducted by telephone or video conference. The appeal panel can decide to hold the hearing remotely if it is satisfied:
• 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 throughout
• the appeal hearing can be heard fairly and transparently
10. 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 way of written submissions. The emergency guidance suggests in these circumstances the admissions authority follow this process:
• The clerk should contact the appellant and presenting officer, in line with the amended timetable. The presenting officer should be given a copy of the appeal lodged and asked to submit the admission authority’s arguments and evidence. The appellant should be given the chance to submit extra 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 formulate questions for the appellant and presenting officer. The aim should be to clarify points made and solicit further relevant information. They should bear in mind that appellants may be less familiar with the appeal information and arguments and may have less experience preparing written submissions.
• The clerk should send the questions and all the papers to each of party. For example, the clerk should send the presenting officer’s submission 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 told the panel might not consider any information or evidence submitted after the relevant 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 prescribed in the Appeals Code.
11. The emergency regulations require the admission authority to give appellants at least 14 calendar days’ written notice of an appeal hearing (although appellants may waive their right to this in writing).
12. Appeal panels must follow a two-stage decision making process.
13. Stage one: the panel examines the decision to refuse admission. The panel must consider whether:
• the admissions arrangements complied with the mandatory 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.
14. If a panel decides admitting further children would “prejudice the provision of efficient education or the efficient use of resources” they move to the second stage of the process.
15. Stage two: balancing the arguments. The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted.
16. Appeal panels must either uphold or dismiss an appeal. It 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 concerned.
17. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
18. The appeal panel must write to the appellant, the admission authority and the council with its decision and the reasons for it. The emergency regulations state decision letters should be sent within seven calendar days of the hearing or, in the case of an appeal conducted on written submissions only, within seven calendar days of the appeal panel making their decision, wherever possible.

Ombudsman’s guidance

19. The Ombudsman published a short guidance note, ‘Good Administrative Practice during the response to COVID 19’. This reminds councils and admissions authorities 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

20. This chronology includes key events in this case and does not cover everything that happened.
21. Mr and Mrs B applied for a secondary school place for their son C at school D. School D is its own admissions authority. The school contracts the running of its appeals to the Council. C did not receive a place at School D. Mr and Mrs B appealed against the decision in April 2020.
22. In May 2020, the Council sent Mr and Mrs B a letter about their appeal request. The Council advised that because of the restrictions in place because of COVID-19, it was not possible to hold face-to-face hearings. The Council said virtual hearings were only permissible where all participants including the members of the Independent Appeal Panel, could be seen and/or heard throughout. It asked Mr and Mrs B to confirm the technology they had access to.
23. The panel considered how to conduct the appeal. It received 36 appeals and 25 appellants said they could attend an appeal by conference call or a remote hearing. The panel decided to hold the appeals by written submission.
24. In June 2020, the Council wrote to Mr and Mrs B and told them the appeal hearing would take place in July 2020, 14 calendar days later. It advised the panel had considered their preferences about how the appeal should be conducted and decided it would be a written submission hearing. It provided them with information about the procedure of the appeal hearing and the school’s case. The Council asked Mr and Mrs B to submit questions they had of the school’s case and any other information no later than five working days before the hearing. It also asked them to contact the Council if they felt they would be disadvantaged in any way because of a disability or communication barrier, because the appeal hearing was being conducted by written submission.
25. Mr and Mrs B gave more information for the panel. This related to the family’s finances, employment, and C’s academic ability. They included a letter of support from their church and C’s primary school.
26. The Council sent Mr and Mrs B an update of the school’s case nine calendar days before the appeal hearing. The panel had no questions for Mr and Mrs B.
27. The appeal hearing was held in July 2020. The panel consisted of a chair and two panel members. The panel considered the school’s case and unanimously agreed that admitting another child would “prejudice the provision of efficient education or the efficient use of resources”.
28. The panel then considered the arguments for admitting C against the prejudice to the school of admitting another student, including:
• C has a sibling at the school;
• School C is the closest school to C’s home;
• C’s religion;
• the family’s circumstances, including finances, employment, and health;
• C’s academic achievements; and
• supporting letters from C’s primary school and their church.
29. The panel unanimously decided not to give C a place at School D. The Council wrote to Mr and Mrs B the following day to tell them their appeal had been unsuccessful.
30. The Council wrote to Mr and Mrs B in August 2020 with the explanation for why their appeal was unsuccessful. It explained the panel found the admission arrangements were lawful and they were satisfied admitting a further child would prejudice the provision of efficient education or the efficient use of resources at School D.
31. The Council listed the factors the panel considered in C’s case and said although the panel had sympathy for the family’s circumstances, it was satisfied the degree of prejudice to the School outweighed C’s case
32. When I discussed the complaint with Mr and Mrs B in October 2020, they advised another school had admitted C and he was settled there so they did not want a fresh appeal.

Analysis

33. The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the 2020 regulations) say appellants should be offered a hearing by telephone or video conference “wherever possible”. And where this is not possible, appeals may take place solely on written information. In this case over half of the appellants said they could go ahead with a remote hearing, yet the appeal panel decided to hold the hearings as paper only hearings. The panel decided the format of the appeals would be ‘written submissions’ but there was no record of its decision making, this was fault. This fault left Mr and Mrs B uncertain about whether they had received a fair hearing. The Council advised that in future it will keep a record of the panel’s decision making.
34. I am satisfied the Council gave Mr and Mrs B the required notice for the appeal hearing and shared information for the panel in accordance with the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the 2020 regulations). I am also satisfied the panel decided whether C’s appeal was successful in line with the Department for Education’s School Admissions Appeals Code.
35. The Council should have written to Mr and Mrs B within seven calendar days of the appeal panel’s decision to tell them the result of the appeal and the reasons for it. In this case, the Council told Mr and Mrs B the result of their appeal within seven calendar days. However, the Council did not give Mr and Mrs B the reasons for the panel’s decision until a month later. The Council explained the delay was because it had a shortage of clerks. The delay resulted in a period of uncertainty for Mr and Mrs B.

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Agreed actions

36. When an admissions authority commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. S
37. Within one month of the final decision, the admission authority will:
• Apologise to Mr and Mrs B for the faults identified.
• Issue guidance to clerks and panel members about the importance of comprehensively recording the reasons for decisions and remind them of the deadlines for communicating appeal results with reasons to the appellants.

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Final decision

38. I have completed my investigation and uphold Mr and Mrs B’s complaint. Mr and Mrs B were caused an injustice by the actions of the admissions authority. The admissions authority has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman