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North Tyneside Metropolitan Borough Council (20 004 661)

Category : Education > COVID-19

Decision : Upheld

Decision date : 05 Feb 2021

The Ombudsman's final decision:

Summary: Mr Q complained an independent appeals panel had failed to properly consider his appeal for a school place for his son, R. This had caused the family significant distress. There is evidence of fault but not that caused injustice to Mr Q.

The complaint

  1. The complainant, whom I shall call Mr Q, complains there was fault in the way the admission appeals panel considered his appeal for his son, R. This caused the family significant distress.

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The Ombudsman’s role and powers

  1. 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 authorities followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  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. If we are satisfied with an independent school appeal panel’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

  1. I considered the information Mr Q provided with his complaint and spoke to him on the telephone. I made enquiries of the Council and assessed its response. I sent the Council and Mr Q a copy of my draft decision in order to take any comments they made into account before issuing a decision.

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What I found

Relevant guidance

  1. Statutory guidance about school admissions and appeals can be found in the School Admissions Code and the School Admission Appeals Code (2012). Both are published by the Department for Education.
  2. The statutory guidance highlights that a parent or guardian is able to make an application for their child to attend any school in any county. However, this application must be made through the Council where the child lives. If a parent or guardian has any concerns about the admission process, they can highlight it to the independent panel hearing their admission appeal.
  3. In 2020 emergency regulations were introduced because of COVID-19. These are the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the 2020 regulations). They temporarily amend parts of the 2012 regulations and will be in force until 30 September 2021.
  4. The 2012 regulations say that 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 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:
      1. the parties will be able to present their cases fully
      2. each participant has access to video or telephone facilities allowing them to engage in the hearing at all times
      3. the appeal hearing is capable of being heard fairly and transparently in this way
  5. Where this is not possible, the 2020 guidance says appeals can be conducted entirely based on written submissions. For the panel to make a decision which is fair and transparent, they must ensure that the parties are able to fully present their case by way of written submissions.
  6. The structure of appeals is set out in the 2012 Code. For non-infant classes, they are held in two stages. At the first stage, the panel has to confirm that the admission arrangements comply with the mandatory requirements of the School Admissions Code and that the arrangements were correctly and impartially applied in the case in question. At the end of the first stage, the panel decides whether the admission of additional children would ‘prejudice the provision of efficient education or the efficient use of resources’. In other words, whether the school could allow any more children in without making it difficult for it to educate existing pupils.
  7. If the panel decides there would be prejudice, it goes to the second stage of the appeal. At this stage ‘the panel must balance the prejudice to the school against the appellant’s case for the child to be admitted to the school. It must take into account the appellant’s reasons for expressing a preference for the school, including what that school can offer the child that the allocated or other schools cannot’.
  8. I am considering Mr Q’s appeal in the light of the 2012 and 2020 appeals guidance.
  9. The Equality Act 2010 is a proactive duty. The Council should consider whether arrangements they make may adversely affect people with disabilities.

Mr Q’s application

  1. Mr Q had applied on time for a place for R at a school that was not his closest. The last admitted child lived 1.94 miles away from the school while R lived 3.04 miles away.
  2. Because the Council turned R down for a place, Mr Q had the right to go to an appeal where an independent admissions appeals panel would hear his case.

Mr Q’s appeal

  1. The Council decided to hold written appeals only. It considered this was fairer because some people might not have access to technology. It set out the reasons for this decision in a document that was circulated to appellants. This was a decision the Council was able to make and although Mr Q believes technology use is widespread, the Council is not at fault for its decision.
  2. Mr Q has dyslexia. Because the Equality Act 2010 is an anticipatory duty, the Council should have considered its responsibilities to people with disabilities when it decided how to hold appeals. The amended Code is clear all parties must “be able to present their cases fully” to a panel and this may not be possible for people with certain disabilities.
  3. There is no evidence the Council considered this, which is fault. In making adjustments, the Council could have asked Mr Q he needed anyone else to submit a written case. From the evidence, it appears Mrs Q made the case for R to be allowed into the school. Mr Q said he submitted all the information for the appeal and not Mrs Q but, from the substance of the case that was submitted, I cannot see he was caused injustice from the Council’s failure to consider this duty.
  4. The appeal panel properly considered the mandatory requirements of the Code and how those requirements were applied to R. It is not at fault for this. The school was full so parents were able to make their case at Stage Two as to why it was important for their children to get a place in spite of this.
  5. The written case explained what the school could offer that the allocated school could not. It raised a number of points about Q being bullied by children attending the allocated school, that Q would be able to travel to the school independently and the school was smaller and more nurturing and would better support his needs.
  6. The appeal panel considered the case but decided, by majority, the prejudice to the school was not outweighed by Mr Q’s case. R was not given a place at the school.
  7. The letter sent to Mr Q after the panel shows how the panel considered this.

Following the appeal

  1. Mr Q said the Council did not ask if he knew any of the panel members considering his case and he found he did know one of them.
  2. The Council wrote to him on 17 June 2020 to say who was going to be on the panel considering the case.
  3. Those panel members heard his case on 14 July. I consider the amount of notice gave Mr Q enough time to tell the Council that he knew one of the panel members. If he felt, on the day, that he wanted the hearing to be adjourned so his case could be heard by a new panel, he could have asked for this. There is no evidence of Council fault. I do not agree that Mr Q identifying after the appeal that he knew one of the panel members meant a new appeal was necessary.

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Agreed action

  1. Although Mr Q was not caused injustice, as I found fault I was able to make practice recommendations to the Council. The Council told me that it will update its guides for admission appeals going forward whether they are face to face, virtual or by written submissions. It will also specifically request appellants to contact it if they believe they might have any difficulties in submitting their case. This is appropriate. I would ask it to show me the changes it has made within two months of the date of this decision.

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Final decision

  1. We have found evidence of Council fault but with no evidence of injustice to Mr Q.

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Investigator's decision on behalf of the Ombudsman

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