Summary: We upheld Mr X’s complaint about an unsuccessful school admissions appeal for his son. There was fault in how the panel considered Mr X’s appeal which created uncertainty about how it decided his case. To remedy the injustice, the Council agreed to offer Mr X a fresh appeal with a different panel and clerk.

The complaint

1. Mr X complains about an unsuccessful school admissions appeal for his son, Y. He says the panel did not understand his concerns and did not take Y’s personality into account. He does not understand why his son was not offered a place at any of the schools he applied for. Mr X says his son is now attending a school further away and is coming home upset. He would like Y to be offered a place at his first-choice school and a payment to recognise the family’s distress.

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The Ombudsman’s role and powers

2. 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)
3. 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 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)

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How I considered this complaint

5. I have considered the complaint made by Mr X and the documents he provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation and guidance

8. Statutory guidance about school admissions and appeals is in The School Admissions Code and School Admission Appeals Code, published by the Department for Education.
9. 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 31 January 2021. The government published guidance to go with the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’.
10. 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.
11. A clerk supports the appeal panel. Parents can send information in support of their appeal. The clerk must send all papers for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority.
12. 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.
13. Where this is not possible, appeals can be conducted entirely based on written submissions. For the panel to make a decision which is fair and transparent, they must ensure the parties can fully present their case by written submissions. The emergency guidance suggests in these circumstances the admissions authority may follow this process:
• 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.
14. 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.
15. If a panel decides that admitting further children would prejudice the provision of efficient education or the efficient use of resources, they move to the second stage: balancing the arguments. The panel must balance the prejudice to the school against each appellant’s case for their child to be admitted.
16. Appeal panels must either uphold or dismiss an appeal and must not uphold an appeal subject to any conditions. Appeals must be decided by a simple majority of votes cast. A panel’s decision that a child shall be admitted to a school is binding on the admission authority.
17. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
18. The appeal panel must write to the appellant, the admission authority and the local authority with its decision and the reasons for it. The decision letter must be easy to understand and must contain a summary of relevant factors raised by parties and considered by the panel. It must also provide clear reasons for the panel’s decision.

Admission arrangements

19. The schools Mr X applied to prioritise places for looked after children, those with siblings attending the school, and those who live in the catchment area.

The Council’s approach to appeals

20. The Council held its appeals remotely. At stage one, the panel considered the school’s written case explaining why it had refused to offer a place and why it believed there would be prejudice to admit a further pupil.
21. All appellants received a copy of the school’s case and had an opportunity to submit questions in writing about it. The school then provided a written response to the questions which all parties received before the appeal hearing.
22. At stage two, the hearing took place by video or telephone call. The Council invited appellants to share any further information about their reasons for appealing.

What happened

23. Mr X applied for a place for his son, Y, in the normal admissions round. He named four schools in order of preference.
24. As there were more applications than places, the first-choice school, School A, used its oversubscription criteria to decide which children should be offered a place. It did not offer Y a place. Y lived almost a mile from the school; the last child admitted from the catchment area lived less than half a mile from the school.
25. None of the schools Mr X applied to offered Y a place. He was offered a place at a nearby school which had places available, School B.
26. Mr X appealed the decision not to admit Y to School A. He was unhappy about Y being offered a place at School B because of concerns about behaviour and performance. He said Y had friends who were attending School A. Mr X said he wanted his son to attend a well-performing school. He felt the family had been treated unfairly because Y did not meet the priority criteria for a place.
27. The Council wrote to Mr X at the end of May. It issued guidance about how appeals would be heard and invited him to attend using by video call. It sent him the school’s case and asked him to send any questions he had about it by 30 May.
28. Mr X submitted questions about the school’s case and the school provided a response two days later. A copy was provided to the panel before the stage one hearing and Mr X was sent a copy before the stage two hearing. This included questions the panel had asked the school and the school’s responses.
29. The panel met to consider the first stage of the decision-making process on 1 June. The clerk’s notes show the panel decided the school had applied its admission arrangements correctly and impartially. The notes include some points from the school’s case. The panel decided it would cause prejudice to the school to admit more pupils.
30. The following week the panel met to consider Mr X’s appeal. Mr X and the school’s presenting officer attended. The clerk’s notes show Mr X shared his concerns about School B, and why he would prefer Y to attend School A. The panel considered the place offered at School B was at a reasonable distance and unanimously decided Y’s case did not outweigh prejudice to the school.
31. The clerk wrote to Mr X with the panel’s decision. The letter explained what the panel considered when deciding there would be prejudice to the school to admit more pupils. It listed some of the points Mr X made to the panel. The clerk said the panel had considered his case but did not think there were special circumstances which meant it would be appropriate to give Y a place in the school.

Analysis

32. There was no fault in the Council’s approach to appeals or in the clerk’s notes at stage one of the appeal. Mr X had an opportunity to ask questions about the school’s case and present his case to the panel at stage two.
33. However, the clerk’s notes at stage two do not show how the panel considered whether Mr X’s reasons for wanting a place at the school outweighed the prejudice to the school. Clerks must keep a record of the reasons for decisions. The notes and decision letter do not record the panel’s view of Mr X’s reasons for wanting his son to attend School A. This was fault and creates uncertainty for Mr X about how the panel decided his case and why it refused his appeal.
34. The Council has recently revised its templates for clerks’ notes and for decision letters. These now ask clerks to include clear reasons for the panel’s decision and show how they considered each point of an appellant’s case. These service improvements are welcome.

Agreed action

35. To remedy the injustice caused by the fault identified, within one month of the final decision the Council will offer a date for a fresh appeal for Y, with a different panel and clerk.

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Final decision

36. I have completed my investigation. Mr X has been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman