The Ombudsman's final decision:
Summary: Mr X complains that there was fault in how an appeal panel considered his appeal for a place at a school for his daughter which meant he did not receive a fair hearing. There was fault in how an appeal panel considered Mr X’s appeal. As a result, Mr X cannot be satisfied the hearing was fair. To remedy this injustice the Council has agreed to arrange a fresh appeal with a different panel and clerk.
- Mr X complains that the school admission appeals panel which considered his appeal for a place for his daughter Y at a high school did not follow the school admission appeals code as:
- The panel did not make his requested reasonable adjustments and take account of his disabilities. The chair did not give Mr X sufficient opportunity to present his case as she would not allow him to discuss the evidence he submitted prior to the hearing which he considered to be key;
- Mr X did not receive the email invitation to join the hearing by video conference;
- Mr X did not receive the answers to his questions on stage one of the appeal until shortly before the hearing;
- The chair did not allow Mr X to ask further questions at stage one of the hearing;
- The panel did not ask relevant questions about why he wanted a place for his daughter as it did not ask about bullying and safeguarding concerns at the allocated school.
- As a result, Mr X considers he did not receive a fair hearing from the panel.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)c
- 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 council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
- 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)
How I considered this complaint
- I have:
- Considered the complaint and the information provided by Mr X;
- Discussed the issues with Mr X;
- Made enquiries of the Council and considered the information provided;
- Invited Mr X and the Council to comment on the draft decision.
What I found
Law and guidance
- Councils have a duty under the Equality Act 2010 to ensure a disabled person can use a service as close as it is reasonably possible to the standard offered to non-disabled people. If a disabled person requests an adjustment, the Council must make it if it is reasonable.
School admission appeals code and emergency regulations.
- Statutory guidance about school admissions and appeals is in The School Admissions Code and School Admission Appeals Code, published by the Department for Education.
- 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. The government published guidance to go with the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’.
- Parents and carers have the right to appeal an admission authority’s decision not to offer their child a school place. An independent appeal panel decides the appeal.
- The School Admission Appeals Code says appeal panels must allow appellants the opportunity to appear in person and present their case. The 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:
- the parties can present their cases fully.
- each participant has access to video or telephone facilities allowing them to engage in the hearing.
- the appeal hearing can be heard fairly and transparently in this way.
- The clerk should contact the appellant and presenting officer, in line with the amended timetable. The presenting officer should be provided with 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 send more 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 draw up questions for the appellant and presenting officer. The aim should be to clarify points made and seek further relevant information. They should bear in mind that appellants may be less familiar with the information and arguments required, and may have less experience preparing written submissions.
- The clerk should send the questions and all the papers to each of the parties. For example, the presenting officer’s submission will be sent 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 informed that any information or evidence not sent by the relevant deadline might not be considered by the panel.
- 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.
- 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.
- Mr X applied for a place for Y at school 1 which is a high school. The Council refused a place at school 1 as it had allocated places to up to its published admission number to children who had a higher priority under the school’s admission criteria. The Council offered a place for Y at school 2.
- Mr X appealed against the decision to refuse a place at school 1. There were a number of appeals for school 1 so the Council held the appeals over several days. The Council’s appeal process is to hold stage one of the appeal by written submissions and stage two by a personal hearing via video or telephone conference.
- The Council sent an email to Mr X notifying him of the date of the appeal. In this email the Council explained Mr X could join the stage two hearing by video or telephone. It asked Mr X to let the Council know as soon as possible how he intended to join the hearing. The Council has said Mr X did not inform the Council of how he wanted to join the hearing. Mr X has said he was expecting to receive an email with an invitation to join the hearing by video.
- Mr X sent documents for his appeal. In his covering letter Mr X stated he did not need any adaptations to the appeal hearing process but he asked for patience where appropriate. Mr X told me he required patience due to an acquired head injury. In response to my draft decision, Mr X has also said he sent evidence of his disability and medical conditions to the Council.
- The Council sent a statement to Mr X explaining why it had not offered a place for Y at school 1 and why it considered the admission of a further pupil would prejudice the efficient education and use of resources at the school. All appellants, including Mr X were invited to submit questions for the presenting officer for stage 1 of the hearing. The Council then sent the presenting officer’s answers to the panel and appellants. The Council did not send a copy of the answers to Mr X. It has said this was due to an oversight. Mr X sent further information for his appeal the evening before the hearing which the Council sent to the panel and presenting officer.
- The Council sent a copy of the presenting officer’s answers to Mr X shortly before his scheduled hearing time. Mr X joined the hearing by telephone.
- The clerk’s notes record Mr X asking if the panel had received his documents. The chair confirmed they had received and read the many documents provided by Mr X.
- The clerk’s notes show Mr X gave reasons for wanting a place for Y at the school. The notes record the presenting officer and panel asked questions. The presenting officer and Mr X summarised their cases.
- The panel made its decision at stage one after hearing all the appeals. The clerk’s notes record the panel considered the admission arrangements were lawful and had been properly applied. It also considered there was an overwhelming case to say the admission of further pupils would prejudice the provision of efficient education and efficient use of resources at the school.
- The panel then moved to stage two and considered the individual appeals including Mr X’s. The panel refused Mr X’s appeal. The clerk’s notes record the panel considered the prejudice to Y did not outweigh the prejudice to the school by adding one more pupil. The clerk’s notes do not explain why the panel reached this conclusion.
- The clerk sent a letter to Mr X notifying him of the decision. The letter explained the panel’s decision at stages one and two of the appeal process. It explained the panel considered the admission of further pupils would prejudice the provision of efficient education and use of resources at the school as it considered the school could not admit further pupils without a significant impact on health and safety, pastoral care and administrative systems. The decision letter listed Mr X’s reasons why he wanted a place at the school. It stated the panel did not consider there were special circumstances or overriding considerations in his case.
- Mr X considers he did not receive a fair hearing. In particular, he considers the chair did not make his requested reasonable adjustments and allow him to fully present his case.
- The Council’s position is:
- The delay in sending Mr X the response to the questions to the presenting officer did not deny Mr X a fair hearing. Mr X had the opportunity to ask his questions and would not have been able to ask further questions or discuss the school statement at stage two of the appeal. This was to ensure all appellants heard the same information regarding the school’s case.
- Mr X did not request any reasonable adjustments for the appeal hearing other than patience if applicable. Mr X was given the opportunity to present his case and it was not necessary for him to read through all the documents submitted as they had been reviewed.
- The chair is obliged to ensure all appellants are able to share the information they feel is relevant to their case whilst being mindful of the need to ensure fairness and consistency in the time allocated.
- The Council is at fault for delaying in sending Mr X a copy of the presenting officer’s answers for stage one. Mr X did not have sufficient opportunity to fully consider the answers as he did not receive the document until the morning of the hearing. Mr X would not have been able to ask further questions of the presenting officer but the delay in sending the answers contributed to Mr X’s perception that he did not receive a fair hearing.
- On balance, I do not consider the Council made reasonable adjustments for Mr X to allow him to present his case at the stage two hearing. Mr X requested patience by the appeal panel when he submitted his appeal documents. Mr X did not specifically say he had a disability and why he required patience with this request. But his request put the Council on notice that it may need to make reasonable adjustments at the appeal hearing. The Council should have contacted Mr X to explore why he requested patience and what reasonable adjustments it could make, such as allowing Mr X more time to present his case at the appeal. Its failure to do so is fault.
- The panel’s refusal to allow Mr X the time he required to present his case by allowing him to refer to the documents he submitted shows it did not make reasonable adjustments to meet Mr X’s request for patience. The panel therefore did not have sufficient regard to its duties under the Equality Act. However, the clerk’s notes show Mr X was able to give his reasons to the panel for wanting a place for Y at the school. So, on balance, I consider Mr X was able to present his case, although I accept it was not in the way he wanted.
- The clerk’s notes record the panel considered the appropriate tests at stage one of the appeal. However, the clerk’s notes do not satisfy me that the panel gave sufficient consideration to whether Mr X’s reasons for wanting a place at the school outweighed the prejudice of admitting a further pupil. The clerk is required to keep a record of the reasons for the panel’s decisions. The notes do not record what the panel made of Mr X’s reasons for wanting a place at school 1, or why those reasons did not outweigh the prejudice of admitting another pupil. So, there is no evidence to show the panel gave adequate consideration to Mr X’s reasons for wanting a place at school 1. The decision letter also does not provide sufficient detail for Mr X to know why his case did not represent special circumstances and why his appeal was refused.
- In view of the faults outlined above, I consider Mr X cannot be satisfied he received an adequate or fair hearing. To remedy this injustice the Council has agreed to arrange a fresh appeal with a new panel and new clerk and will allocate additional time for the hearing.
- The Council has provided evidence to show it has reminded clerks and panel members of their duty under the Equality Act 2010 to recognise requests for reasonable adjustments and to ensure they are made. The Council has also revised its templates for the clerk’s notes and decision letters to ensure panels give clear reasons for their decisions. I welcome the service improvements made by the Council.
- That the Council arranges a fresh appeal hearing for Y to be heard by a different panel supported by a different clerk. The Council should take this action within one month of my final decision.
- There was fault in how an appeal panel considered Mr X’s appeal for a place for his daughter at a school. As a result, Mr X cannot be satisfied the hearing was fair. To remedy this injustice the Council will arrange a fresh appeal with a different panel and clerk.
Investigator's decision on behalf of the Ombudsman