Summary: There was fault in the process followed by the independent appeal panel, for admissions to Year 7 of this school in September 2020. This did not cause the complainant a personal injustice, but it may have affected other appeals. However, we consider it would be disproportionate to recommend a repeat of the appeals process for the 2020 intake, and the School has already changed its appeal process for its 2021 intake, which means the same faults should not recur.

The complaint

1. I will refer to the complainant as Mrs N, and to her daughter as P.
2. Mrs N complains about the decision of the independent appeal panel (‘the Panel’) to refuse her appeal for a Year 7 place for P at Archbishop Blanch School (‘the School’). In particular, she says:

• she did not receive a letter from the School, inviting her to submit questions to the Panel about the School’s case;
• she did not receive the Panel’s decision letter and had to chase the School for it; and
• there are medical reasons why P should have a place at the School, which the Panel did not consider.

3. Mrs N wishes for the School to reconsider giving P a place.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether the Panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with the 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)
6. 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”.

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How I considered this complaint

7. I reviewed Mrs N’s application to the School and her appeal submission to the Panel, the School’s appeal submission to the Panel, the Panel’s deliberation on both stages of the appeal process, and its decision letter to Mrs N.
8. I also shared a draft copy of this decision with each party for their comments.

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What I found

9. Mrs N applied for a September 2020 Year 7 place for P at the School. She asked the School to consider P under the ‘commitment to Islam’ and ‘aptitude in art’ elements of its oversubscription criteria.
10. The School received considerably more applications than its published admissions number (PAN) of 180. It therefore applied the oversubscription criteria. P was ranked 36th for the 22 places the School allocated to Muslim applicants, and 19th for the 4 art places. This meant she was not offered a place at the school.
11. Mrs N submitted an appeal to the Panel. She included two supporting letters, from P’s primary school and a local arts centre, supporting her application. Mrs N also said she considered P would benefit from the close-knit environment at the School, along with the School’s commitment to STEM subjects in which P had an interest. She explained P achieved highly at primary school, that the School was close to their home, and that its strong religious ethic was important to P and her family.
12. The School wrote to Mrs N and other appellants in June 2020. The letter explained that, due to COVID-19 restrictions, it had decided the Panel would consider only written submissions, without the normal hearing process. The School had already made its case not to accept any more pupils above the PAN; the letter enclosed a copy of this, and invited appellants to submit to the Panel any questions they had about School’s case by 2 July. The Panel would then meet virtually to deliberate during the following week.
13. Mrs N says she did not receive a copy of this letter.
14. The Panel completed both stages of the appeal process. At stage 1, the School’s case rested on its ability to safely teach and accommodate more pupils than the PAN of 180, given its limited resources and the physical space available. The Panel considered the School had made its case that it would prejudice the education of others if it were to admit more pupils.
15. At stage 2, the Panel considered P’s particular circumstances. It praised her academic performance, but did not consider the prejudice to her outweighed the prejudice to the School of accepting an additional pupil. It therefore refused her appeal.
16. The School says the Panel Clerk emailed appellants on 21 July with the Panel’s decisions, and then sent a copy in the post. The School has confirmed the Clerk mis-read Mrs N’s email address, and so she did not receive the email notification. The School was then closed for three weeks.
17. Mrs N contacted the School on 2 September to ask about the decision. The School put Mrs N in contact with the Panel Clerk, who confirmed her correct email address and sent another copy of the decision.
18. On 10 September, Mrs N contacted the School again to say she had still not received a copy of the decision. The School then obtained a copy of the decision letter itself from the Clerk, and emailed and posted it to Mrs N.
19. Mrs N made a complaint to the Ombudsman on 15 September.

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Legislative background

School admissions appeals

20. The School Admission Appeals Code 2012 (the Appeals Code) states admission authorities must ensure that appellants receive at least 10 school days’ notice of their appeal hearing.
21. The Appeals Code sets out a two-stage process for considering appeals. In the first stage the panel examines the decision to refuse admission and considers whether it was made properly. It also has to decide whether the admission of additional children would “prejudice the provision of efficient education or the efficient use of resources” for those already at the school.
22. If a panel decides that prejudice would be caused it goes on to the second stage. In this stage the panel must balance the prejudice to the school against the appellant’s case for the child to be admitted. It must decide whether the appellant’s case outweighs the prejudice.
23. The School Admissions (England) (Coronavirus) (Appeals Arrangements) Regulations 2020 (the 2020 regulations) temporarily amend the 2012 regulations due to COVID-19. The 2020 regulations say appeal hearings should be conducted by telephone or video conference. It also says that appellants must be given at least 14 calendar days’ written notice of an appeal hearing.
24. Where the relevant authority decides it is not practical to hold telephone or video hearings, the guidance says they can instead decide appeals based solely on written submissions.
25. The guidance provides an example of how a ‘written submissions only’ appeal may work. The example says the appeal panel should ‘meet’ (by phone or video), in advance of the substantive hearing, to discuss both parties’ submissions. It should decide whether to ask any questions of the school and/or the appellant, to elicit further information or clarify their respective positions. The panel should send these questions to the relevant parties and give them the opportunity to respond, before meeting again to make a decision on the appeal.
26. The guidance also says:

“The [example] process may be used to decide an appeal on the basis of written submissions only, however admission authorities and appeal panels must exercise their own judgement in the circumstances of any particular appeal being considered. This is to determine that the approach ensures the parties are able to fully present their case and allow the panel to make a decision which is fair and transparent.”

Reasonable adjustments

27. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body that carries out a public function. Its aim is that, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
28. Service providers have to consider removing or preventing obstacles to people with disabilities accessing their service. If the adjustments are reasonable, they must make them.
29. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

Analysis

30. The Ombudsman’s role is to review authorities’ adherence to procedure. Where the authority in question – in this case, the Independent Appeal Panel – has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally will not criticise it. We do not provide a further route of appeal against a panel’s decision, or make our own decisions about the merits of an appeal, and we cannot uphold a complaint simply because a person disagrees with a panel’s decision.
31. In this case, Mrs N complains the Panel did not consider medical evidence in support of P’s appeal. However, I have seen a copy of the medical supporting letter, and it is dated 1 September. This is some time after the appeal hearing in July (albeit before Mrs N was aware of its decision, which is a matter I will address separately). There was also no mention of medical circumstances in Mrs N’s appeal submission.
32. In this respect, I cannot say the Panel was at fault. It cannot consider evidence it does not have.
33. This said, on two grounds I must question the way the appeals process was conducted.
34. First, the School has explained it decided to hold ‘written-only’ appeals to allow equity of access. This is because it says there is a “higher proportion” of appellants who may not have access to the technology to ‘attend’ a video hearing, and/or for whom there is a potential language barrier. It considers that deciding all appeals on written submissions only is therefore fairer.
35. I do not follow the School’s point about language barriers. This, presumably, would present exactly the same problem during a normal ‘in person’ appeal hearing. The School has not explained why it is able to overcome the barrier then, but not during a video conference. So I am not persuaded this, in isolation, provides a good reason for holding written-only appeals.
36. I do, however, appreciate the School’s point about inequitable access to technology, and I acknowledge it might give some appellants an unfair advantage over others if they were able to present their case this way. On balance, I accept the School has provided a good reason to hold written-only appeals (and I note the School also restricted itself to presenting its own case this way).
37. Even accepting this, however, I am concerned the School appears not to have considered how this decision may have had a disproportionately negative effect on those unable to present their case in writing.
38. As I have described, the Equality Act 2010 places an anticipatory duty on public bodies to make reasonable adjustments for those with disabilities. This means the School should consider, in advance, what steps it could take to ensure access to any appellant who might it find it difficult to make contact in writing.
39. In my draft decision, I criticised the School because I could not see it had offered any alternative facility for appellants to make their appeal submissions – for example, by making a voice recording rather than a written case – and could not show it had met its equality duty. In response, the School said its ‘Notice of Appeal’ document offered to make adjustments to those with disabilities, and it therefore considered it had met its duty.
40. I have not seen a copy of this document, and so I cannot comment on this. I can see, however, that when the School invited appellants to submit questions on its case to the Panel, in June 2020, the letter provided only an email address for this purpose. It did not invite appellants to, for example, call the School to provide their questions, if they had difficulty with writing. So, even accepting the School’s point about the ‘Notice of Appeal’ document, I am still concerned it did not consider its equality duty when making arrangements for appellants to submit their questions. I find fault on this basis.
41. Either way, I have no reason to believe this affected Mrs N’s appeal, as she has not indicated she needed any adjustments to be made; and so I do not find this was an injustice to her.
42. Second, the example process given in the Government guidance includes a specific step for the Panel to formulate and send questions to each party. The School has confirmed there was no such step in its appeal process. I quote from its response to our enquiries:

“As neither the appellants or school were in attendance at the hearing, there was no opportunity for questions to either party.”

43. This means, effectively, that the Panel was limited to deciding the appeal solely on the initial information each party submitted.
44. I am conscious the example given in the Government guidance is not prescriptive, and so the School had some discretion in the best way to run its appeals process. But the opportunity for the Panel to ask further questions of each party is an important element of the process. The School has provided no explanation for why it decided to forego this element, and so I cannot accept, on the evidence, this was a decision it was simply entitled to make. I also find fault on this basis.
45. I am again not persuaded this fault represents an individual injustice to Mrs N. As I have said, there is no reference at all to medical circumstances in her appeal submission, and so no reason to believe the Panel would have pressed her on this or prompted her to provide more information about it.
46. Mrs N has also not suggested the Panel misunderstood any part of her written submission, and so I do not consider it likely that an opportunity for the Panel to ask questions of Mrs N would have led it to make a different decision. Rather, it appears the Panel had a clear understanding of her appeal (as it was made) and was not persuaded this was enough to uphold it. This was a decision it was entitled to make.
47. But this does not mean the same can be said of the other appeals heard, and dismissed, by the Panel. It is possible this fault may have affected its decision-making in other cases, and I am not in a position to say otherwise. The same applies to my first point about reasonable adjustments, which may also have affected other appellants.
48. I have given careful consideration whether to recommend the School convene fresh appeal hearings to address these matters. Under normal circumstances, this may well be the approach the Ombudsman would take. However, I am conscious that:

• the appeals in question were for the September 2020 Year 7 intake. It is now June 2021. Any prospective pupil whose appeal was dismissed will have spent almost a whole academic year at a different establishment. Repeating the appeals process for this School is likely to represent significant disruption for them, at a time when the COVID-19 pandemic has already had a serious impact on their education; and
• the School is now in the period where it will be arranging/holding appeals for the September 2021 intake, and so being required to repeat some or all of the previous year’s appeals, at the same time, will represent a significant additional burden. I must again consider the impact of the pandemic on the School’s limited resources.

49. Taking this together, and on careful balance, I do not consider it appropriate to recommend a repeat of any of the previous year’s appeals.
50. The same consideration does not apply to the upcoming appeal round for the September 2021 intake, which, as I have said, will now be in the process of being arranged/heard. It is reasonable to expect the School to take steps to avoid a recurrence of these faults. In my draft decision, I made recommendations to this effect.
51. However, in response to my draft decision, the School has confirmed that its appeals for this year will instead be held by phone or video conference. This means the limitations I have identified in the ‘written only’ appeals process should no longer apply, and so I have no reason to believe the faults will recur. It follows, therefore, there is no longer any purpose to my draft recommendations, and so I have withdrawn them.
52. Mrs N also complains she did not receive either the June letter from the School, inviting appellants to send questions about the School’s case to the Panel, or its decision letter.
53. The School says the June letter was sent, first class, to all appellants. It also says it has not received a complaint of non-receipt from any other person. And I have reviewed a copy of the letter, provided by the School, which shows it was addressed correctly to Mrs N’s home.
54. I cannot speculate why Mrs N may not have received this letter, therefore, but there is no evidence to suggest this was because of any fault by the School.
55. The School has accepted, however, that the Clerk made an error reading Mrs N’s (handwritten) email address, when they sent the first copy of the Panel’s decision letter. This would help explain why Mrs N did not receive the Clerk’s email.
56. Although this is an administrative error, I am not persuaded it is sufficiently serious to justify a finding of fault. It is unfortunate the Clerk misread Mrs N's email address, but this appears to be a relatively straightforward human error; and one which should have been mitigated by the fact the Clerk also sent a copy in the post (notwithstanding the fact Mrs N says she also did not receive this letter, which I again cannot say is because of fault by the School or Panel).
57. After Mrs N contacted the School to chase the Panel’s decision, the Clerk verified her email address and re-sent the decision. However, yet again, Mrs N says she did not receive this email. It was only on the third attempt, where the School itself sent the decision letter by post and email, that Mrs N finally received copies of the decision.
58. It is not impossible the Clerk made further errors when they sent the letter for the second time, but this is speculation and not a finding I can make. The most I can say is that, when Mrs N contacted the School about the Panel’s decision, it took appropriate steps to ensure she received a copy of the letter, which is what I would expect to see.
59. I therefore find no fault on Mrs N’s complaint about the School and Panel’s communications with her.

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Summary

60. There was fault by the School, because it did not offer appellants an alternative means of submitting questions to the Panel. There was also fault, because the appeals process did not provide an opportunity for the Panel to question either party, and the School has not explained why it considered it could hold appeals fairly and transparently without this facility.
61. Neither fault caused Mrs N an injustice. While it may have caused injustice in other appeals, on balance I do not consider it proportionate for the School to re-hold the appeals, given the passage of time and the impact of the COVID-19 pandemic.
62. While I originally made draft recommendations for the School to avoid a recurrence in the upcoming 2021 appeals round, I am satisfied the change in procedure for this year’s appeals means these recommendations are no longer applicable. I have therefore withdrawn them.
63. I find no fault in Mrs N’s complaints about communications from the School and Panel.

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Final decision

64. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman