Summary: Miss B complained the admissions authority did not carry out her son’s school placement appeal correctly and it was refused. We found fault with the admissions authority causing injustice. The admissions authority has agreed to apologise and offer a fresh appeal to remedy this injustice.

The complaint

1. Miss B complained the admissions authority did not carry out her son’s school placement appeal correctly and it was refused.

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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. 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 admissions authority followed the relevant legislation, guidance and our published “Principles of Good Administrative Practice during Covid”.
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 considered:
• Miss B’s complaint and the information she provided;
• documents supplied by the admissions authority;
• relevant legislation and guidelines; and
• the admission authority’s policies and procedures.
6. Miss 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

7. The Department of Education published Statutory guidance about school admissions and appeals, the School Admissions Code and School Admission Appeals Code.
8. 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.
9. 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.
10. 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
11. 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.
12. 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).
13. Appeal panels must follow a two-stage decision making process.
14. 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.
15. 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.
16. 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.
17. 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.
18. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
19. 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

20. 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

21. This chronology includes key events in this case and does not cover everything that happened.
22. Miss B applied for a secondary school place for her son, C at School D. School D is its own admissions authority. The School contracts out the running of its appeals to the Council. C did not receive a place at School D. Miss B appealed against the decision in April 2020.
23. In May 2020, the Council sent Miss B a letter about her appeal request. The Council explained because of the COVID-19 restrictions, it was not possible to hold face-to-face hearings. The Council said it could only hold virtual hearings where all participants including the members of the Independent Appeal Panel, could be seen and/or heard throughout. It asked Miss B to confirm the technology they had access to.
24. The panel discussed how to conduct the appeal. It had 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.
25. In June 2020, the Council told Miss B the appeal hearing would take place in July 2020, 14 calendar days later. It advised the panel had considered her preferences about how the appeal should be conducted and decided it would be a written submission hearing. It provided her with information about her grounds of appeal, procedure of the hearing and the school’s case. The Council asked Miss B to submit questions and extra information no later than five working days before the hearing. It also asked her to contact the Council if she felt she would be disadvantaged in any way because of a disability or communication barrier, because it was conducting the appeals by written submission.
26. Miss B asked the admissions authority if she could attend the appeal by a video link. The admissions authority told her it had passed her request to the Council. The Council has not provided any evidence that it considered this request.
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. The panel considered the following:
• C had a sibling at the school;
• the family’s circumstances;
• C was not baptised;
• the distance between C’s home and the nearest alternative Roman Catholic school; and
• a supporting letter from C’s primary school.
29. The clerk’s minutes wrongly recorded the appeal was for C to join year six, Miss B was the only appellant and the distance to the next nearest Roman Catholic school. The admissions authority state these were administrative errors, and panel considered the correct information.
30. The panel unanimously agreed not to give C a place at school D. The Council wrote to Miss B the following day to tell her the appeal had been unsuccessful.
31. The Council wrote to Miss B in July 2020 to tell her that her appeal was not successful. It explained the panel found the admission arrangements were lawful and was satisfied admitting a further child would prejudice the provision of efficient education or the efficient use of resources at School D.
32. The Council summarised the factors the panel considered and said although the panel had sympathy with her case, it was satisfied the degree of prejudice to the School outweighed C’s case.

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. The Council advised that in future it will keep a record of the panel’s decision making.
34. Miss B asked the admissions authority if she could attend the hearing by video link. Her request was forwarded to the Council but there was no evidence it considered it. The Council should have considered Miss B’s request and whether it needed to make reasonable adjustments so she could put her case forward. Not doing so was fault and created uncertainty about whether Miss B was given a fair hearing.
35. There were several errors in the minutes of the appeal panel, this was fault. The Council explained these were administrative errors. However, these errors created uncertainty about whether the panel considered Miss B’s appeal correctly.
36. The Council should have written to Miss B within seven calendar days of the appeal panel’s decision to tell her the result and the reasons for it. In this case, the Council told Miss B the result of her appeal within seven calendar days. However, the Council took almost three weeks to write to Miss B with the reasons for the panel’s decision. The Council explained the delay was because it had a shortage of clerks. The delay resulted in a period of uncertainty for Miss B.

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Agreed actions

37. 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.
38. Within one month of the final decision, the admission authority will:
• Apologise to Miss B for the faults identified.
• Give Miss B a fresh appeal.
• Issue guidance to clerks and panel members about the importance of 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

39. I have completed my investigation and uphold Miss B’s complaint. Miss B was 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