Summary: Miss Q complained the admission appeals panel acted with fault by telling her R had a place at the school, which was not then given to her. This had caused Miss Q and her family considerable distress. There is no evidence of fault in how the appeal was carried out.

The complaint

1. The complainant, whom I shall call Miss Q, complains there was fault in the way the admission appeals panel considered her appeal for her daughter, R. She says she was told, verbally, that R would be given a place at a school but that this was not true. This caused the family considerable distress.

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The Ombudsman’s role and powers

2. 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”.
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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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

6. I considered the information Miss Q provided with her complaint and spoke to her on the telephone. I made enquiries of the school and assessed its response. I refer to relevant statutory guidance and detail it below. I sent the school and Miss 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

Statutory guidance

7. Statutory guidance about school admissions and appeals can be found in the School Admissions Code and School Admission Appeals Code (2012). Both are published by the Department for Education.
8. 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.
9. 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:

a) the parties will be able to present their cases fully

b) each participant has access to video or telephone facilities allowing them to engage in the hearing at all time

c) the appeal hearing is capable of being heard fairly and transparently in this way

10. Where this is not possible, the 2020 regulations say 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 this way.
11. Where appeals are held in writing only, the process should follow a specific structure:

• 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 submit additional evidence if they wish. All submissions should be in writing – preferably by email but, where this is not possible, by post.
• 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, in particular, may be less familiar with the kind of information and arguments that are 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 along 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 submitted by any relevant deadline set for submitting evidence might not be considered in the appeal panel’s decision.
• 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 general 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.
13. 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’.
14. The school admissions code says that an admission authority must not withdraw an offer unless it has been offered in error, a parent has not responded to an offer within a reasonable period of time, or it is established that the offer was obtained through a fraudulent or intentionally misleading application.
15. I considered Miss Q’s appeal in the light of the 2012 and 2020 admission and admission appeals guidance.

Miss Q’s appeal

16. Miss Q applied for an in-year place in Year 8 for R. The school was full so Miss Q was invited to go to an appeal. Appeals are considered by independent appeals panels.
17. The Council says that all parents who lodged an appeal were sent an email enquiring what technology they had within their homes. Parent responses were then gathered and recorded. Those responses were shared with the appeal panel that considered individual circumstances in order to decide on the format of the appeal. This included taking account of the needs of the appellants who might have difficulty making a case in writing.
18. The Council now records the decision the appeal panel reaches. In this case the panel decided to hear cases over the telephone and to accept written submissions.
19. Miss Q was able to ask questions on the school’s case and the Panel was able to ask questions on Miss Q’s case over the telephone.
20. Stage One of an appeal is where the panel challenge the school’s case that it is full. This has to be beyond the fact that the admission number has been reached. I have notes from this part of the appeal. They show the panel rigorously challenged the school’s case that it was full. There is no evidence of fault.
21. At Stage Two, the panel considered Miss Q’s case for R to have a place at the school. It considered what she said and spoke to her but it but did not feel her case outweighed the prejudice to the school. It unanimously agreed not to offer R a place.
22. Miss Q says that after the appeal she was told verbally (although it is not clear who by) that R had a place. When she received the letter telling her R did not have a place she says she was shocked. She says she then spoke to someone in admissions who reassured her R had a place at the school and that a new letter would be sent. R went to the school but was turned away. There was no new letter sent. The letter saying the panel would not agree to offer R a place was correct.
23. The Council says that no one in the admission team would advise a parent there would be a place at the school, which is generally full in every year group. Aside from the normal admission round, admission could only be by a successful appeal, which this was not. The Council checked its records to assure itself the letter sent to Miss Q following the appeal was accurate and that R had been turned down for a place. I cannot say, even on the balance of probabilities, whether Miss Q was told twice, verbally, by two different people, that R had a place at the school.
24. In any case, the Council is allowed, in accordance with the Admissions Code, to withdraw places given in error. Therefore, even if Miss Q had been advised R had a place at the school, the Council would have been able to withdraw the offer given the school was full. It is not at fault although I appreciate how much distress this uncertainty would have caused Miss Q and R.

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Final decision

25. There is no evidence of fault.

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Investigator's decision on behalf of the Ombudsman