The Ombudsman's final decision:
Summary: Mr X complains that an appeal panel did not properly consider Ms Y’s appeal for a school place for her child. There was fault in how an appeal panel considered Ms Y’s appeal for a place for her child at a school. As a result, Ms Y cannot be satisfied the hearing was fair which causes uncertainty to her. The Council will remedy this injustice by sending a written apology to Ms Y.
- Mr X complains on behalf of Ms Y. Mr X complains:
- that the Council’s admission arrangements are unlawful as they allow children to be admitted to Ms Y’s catchment area school who live closer to an alternative school. As a result, Ms Y’s child was refused a place at their catchment area school.
- the appeal panel did not properly consider Ms Y’s reasons for her appeal, including that the admission arrangements were unlawful and her reasons why she wanted a place at the school. Mr X considers that as a result the appeal panel wrongly refused Ms Y’s appeal.
What I have investigated
- I have investigated complaint b). I explain at the end of this statement my reasons for not investigating complaint a).
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)
- 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 admission panel 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;
- Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.
What I found
Impact of the COVID-19 pandemic
- 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 and will be in force until 30 September 2021. The government published guidance to accompany the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’ (‘the Guidance’).
- The temporary regulations say that where face-to-face appeals cannot take place safely, hearings can be conducted by telephone or video conference. To hold a remote hearing, the appeal panel has to be satisfied that:
- all parties will be able to present their cases fully;
- each participant has access to video or telephone facilities allowing them to take part throughout the hearing; and
- the panel considers the appeal can be heard fairly and transparently.
- The admission authority’s representative and the parent should see each other’s written submission in advance and have an opportunity to send in questions. Both parties should be able to reply with answers to the questions and any further points they wish to make. They should see each other’s answers and have a chance to submit additional evidence if they wish, by a given 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 set out in the Appeals Code.
Appeal panel procedure
- When making the decision, panels must follow a two-stage decision making process. At stage one, the panel examines the decision to refuse admission. The panel must consider whether:
- 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.
- Ms Y applied for a place for her child in reception at her local school. The Council received a large number of applications, so it applied its oversubscription criteria. The Council considered Ms Y’s child under category four which is children living in the school’s Geographical Priority Area (GPA). Ms Y lives in the GPA but lived farther away than the last child admitted. The Council did not offer a place to Ms Y’s child. It offered a place at another school.
- Ms Y appealed against the decision not to offer a place at her local school. Ms Y’s grounds for her appeal included:
- The school allocated was a faith school but she wanted her child to attend a non- denomination school.
- The distance would make it difficult for Ms Y’s parents to collect her child in the event of an emergency.
- It was unreasonable to allocate a school which is twice as far away as her preferred school and would cause additional expense.
- The admission arrangements were unreasonable and irrational as the GPAs gave priority to children who live closer to an alternative school than Ms Y’s preferred school which denied her child a place. Ms Y’s child would have to walk past her preferred school to reach the alternative school.
- Ms Y’s appeal was for a place in an infant class but the class sizes at the school were less than 30. The panel therefore considered the appeal using the two stage process outlined above. The panel decided to hold all appeals by written submissions only. In response to my enquiries the Council has said the panel made this decision as some of its members lived in rural areas where poor quality telephone or broadband reception was a major consideration. The panel had specific concerns about calls dropping when there were a large number of participants on the line.
- The Council wrote to Ms Y advising the panel would consider her appeal by written submissions. It also provided a copy of the Council’s statement setting out the reasons why it did not allocate a place at the school for her child and why it considered the admission of another child would prejudice the efficient education and use of resources at the school. The Council also invited her to submit more information. Prior to the hearing the panel and Ms Y were able to ask questions by written statement.
- The appeal panel and clerk joined a conference call to consider the appeals. The clerk’s notes record a representative from the Council as being the presenter. In response to my enquiries the Council has confirmed that only the appeal panel and clerk were present on the call.
- The clerk’s notes record the Council’s reasons why it could not offer a place for Ms Y’s child at the school and Ms Y’s for wanting a place at the school. The clerk’s notes state the panel considered all the information provided including the documents provided by Ms Y. It considered Ms Y’s challenge to the admissions criteria regarding the GPA to be a matter for the Council. The panel refused Ms Y’s appeal. It considered there had been no fault in the admissions process and there were no flaws in the Council’s case. The clerk’s notes do not record the panel’s consideration of the reasons why Ms Y wanted a place at the school and why those reasons did not outweigh the prejudice of admitting another child to the school.
- The clerk wrote to Ms Y to notify her of the panel’s decision. The letter refers to an officer from the local authority advising the hearing and providing information on how the places at the school were allocated. The letter then explains:
- The panel was satisfied that the admission arrangements had been properly implemented and complied with the School Admissions Code and the School Standards and Framework Act 1998.
- The panel was also satisfied that the admission of another child would prejudice the efficient education and resources at the school.
- The panel had considered Ms Y’s reasons for wanting a place and listed those reasons. The panel considered it was not within its remit to review the GPA, there were other school places available and there was no evidence of fault in the allocation process.
- The panel found there were insufficient special circumstances or overriding circumstances in the case.
- The letter did not explain why Ms Y’s other reasons, such as not wanting her child to go to a faith school, did not outweigh the prejudice to the school of admitting another child.
- On balance, I consider there is fault in how the panel considered Ms Y’s appeal. One of Ms Y’s grounds of appeal was that the admission arrangement, in particular the GPA, was unlawful. I understand the panel considered the arrangement of the GPA to be a matter for the local authority. However, Ms Y’s point was that the GPA was unlawful so this was directly relevant to the panel’s consideration of whether the admission arrangements complied with the school admissions code and the law. The panel is therefore at fault for not considering this point.
- The clerk’s notes do not satisfy me that the panel gave sufficient consideration to whether Ms Y’s reasons for wanting a place at the school outweighed the prejudice of admitting another child. In response to my enquiries the Council has said the panel considered Ms Y’s case was weak and mostly about the convenience of the location of the school. But there is no record in the clerk’s notes to show the panel considered the issue of distance or Ms Y’s concern about being allocated a faith school. There is no evidence to show what the panel made of Ms Y’s reasons and why they were not sufficient to outweigh prejudice to the school. The clerk is required to keep a record of the reasons for the panel’s decisions. The failure to do so is fault.
- The panel’s decision letter also does not contain sufficient detail for Ms Y to know why her case did not represent special circumstances and why her appeal was refused.
- The Council has said the presenter was not present at the panel’s conference call to consider the appeals. The clerk’s notes and panel’s decision letter lacked clarity as they referred to the presenter which gave the impression they were present during consideration of the appeals. I have no reason to doubt the Council’s position that the presenter was not present during the consideration of the appeals. But it should ensure the clerk’s notes and panel’s decision letter reflect this.
- In view of the faults outlined above, I do not consider Ms Y can be satisfied she received a fair hearing which causes uncertainty to her. In these circumstances we may recommend the Council arranges a fresh hearing but it is not appropriate to do so in this case. Mr X has said Ms Y is not seeking a fresh hearing as her child is settled in their current school. However, the Council should apologise to Ms Y for the uncertainty caused to her.
- That the Council:
- Sends a written apology to Ms Y for the uncertainty caused to her by the panel’s failure to consider all her reasons for her appeal and provide sufficient explanation in the decision letter for Ms Y to understand why her appeal was refused.
- By training or other means, remind panels and clerks of the need for panels to give clear reasons for their decisions which should be recorded in the clerk’s notes and set out in the decision letter and clearly record who was present during the panel’s consideration of appeals.
- There was fault in how an appeal panel considered Ms Y’s appeal for a place for her child at a school. As a result, Ms Y cannot be satisfied the hearing was fair which causes uncertainty to her. The Council has agreed to remedy this injustice by sending a written apology to Ms Y. I have therefore completed my investigation.
Parts of the complaint that I did not investigate
- I have not investigated Mr X’s complaint that the Council’s admission arrangements are unlawful. Mr X has made a complaint to the School’s Adjudicator about this matter. The Schools Adjudicator role is to decide complaints about the unlawfulness or unfairness of admission arrangements, so I consider Mr X’s complaint is best dealt with by them.
Investigator's decision on behalf of the Ombudsman