Summary: Miss X complained about the arrangements for the independent admission appeal hearing for her son under the temporary COVID-19 rules. She also complained that the appeal panel did not consider the information she provided about her son’s medical condition properly. We have found that the delays in dealing with the appeal were not due to fault by the Council, but there was fault in the panel’s decision-making causing her uncertainty about its outcome. The Council has agreed to offer Miss X a fresh appeal.

The complaint

1. Miss X complained that:
1. there was fault in the Council's arrangements for the school admission appeal hearing for her son including:
• delay in holding the hearing;
• failing to send her the required information before the hearing;
• delay in sending her the full appeal decision with reasons; and
1. the appeal panel did not consider the medical information she provided properly.
2. As a result she says she did not have a fair hearing, and the delays caused her and her son anxiety and distress.

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The Ombudsman’s role and powers

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, sections 26(1), 26A(1) and 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 discussed the complaint with Miss X and considered the information she provided. I considered the information the Council provided in response to my enquiries, including the clerk’s notes of the appeal and the decision letter. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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 the admission panel followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.

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What I found

School admission appeals

7. Parents have the right to appeal against a decision to refuse admission to a school. The School Admission Appeals Code (‘the Appeals Code’) is statutory guidance for admission authorities and appeal panels to follow in arranging and deciding admission appeals. Under the Code appellants must have the opportunity to appear in person and present their case.
8. 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 admission arrangements comply with the law;
• the admission arrangements were properly applied to the case;
• admitting another child would prejudice the education of others.

9. If the panel finds there would be prejudice, the panel must then move to the second stage and consider each appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
10. The Appeals Code says:
• The appeal panel must take into account the appellant’s reasons for wanting a place at the school, including what that school can offer the child that the allocated or other schools cannot.
• The panel must ensure the appeal decision is easily comprehensible so that both sides can understand the basis on which the decision was made. The decision letter must contain a summary of relevant factors the panel considered. It must give clear reasons for the panel’s decision, including how and why the panel decided any issues of fact or law.

Impact of the COVID-19 pandemic

11. In April 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’).
12. 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.
13. Where any of these conditions cannot be met, appeals may be decided based on written submissions only. The clerk to the appeal panel should contact the appellant as soon as possible to explain the temporary arrangements for appeals and check they have access to the necessary equipment for a remote hearing.
14. The Guidance advises that where appeals are decided on written submissions only, the admission authority may take the following approach.
• 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.
15. The temporary regulations and the Guidance suspend the usual timescales for the appeal process. Instead admission authorities should ensure:
• hearings take place and cases are decided “as soon as is reasonably practicable”
• after a hearing, or an appeal panel’s decision on a written submission case, the decision letter is sent within seven calendar days “wherever possible”.

What happened

16. Miss X applied for a place for her son, B, in Year 7 at School 1. This is the school his older sibling attends. The admission criteria in order of priority are:
1. Looked After Children
2. Children where the Council “accepts there are exceptional medical, social or welfare reasons which are directly relevant to the school”
3. Children living in the school’s Geographical Priority Area (GPA) with an older sibling at the school
4. Children living in the school’s GPA without a sibling at the school
5. Children living outside the school’s GPA with an older sibling at the school
6. Children living outside the school’s GPA.
17. There were more applications than places available. The Council placed B in category 5 as he lives outside the GPA. It refused him a place because the last place was filled in category 4. The Council allocated him a place at School 2.
18. Miss X appealed against the decision in mid-March 2020. The reasons she gave for wanting a place at School 1 were:
• she still has a child at School 1;
• she works close to School 1;
• B has a medical condition, which she named, which means he needs to be with the childminder after school “to make sure he is OK”;
• School 2 was too far away to allow her to get both children to school on time.
19. The Council says it wrote to Miss X with information about the appeal and a form to fill in about her preferred format for the hearing. I have not seen a copy of the email and I do not know when the Council sent it. But the Council has provided a copy of Miss X’s response on 12 June, with the form completed. The form asked whether Miss X would be able to take part in a virtual hearing by video or phone call, or whether she was happy to proceed as the appeal panel decided. She said yes to both options.
20. At the end of June the panel members met with the clerk to consider the responses and decide how to deal with the appeals. There were 59 appeals for School 1. About a third of appellants did not say they could manage a virtual hearing. The decision was to consider all the appeals for School 1 on written submissions.
21. The Council sent Miss X an email on 1 July attaching information about the appeal including:
• a letter confirming the arrangements for the appeal, with a date in mid-July, and giving her a deadline for sending in questions about the Council’s case or any further evidence she wished to provide
• an information sheet about how the panel would deal with the appeal including the two-stage decision-making process
• copies of her appeal form and the Council’s case.
22. Panel members sent questions to appellants but did not have any questions for Miss X. On 8 July they also put some questions to the Council about how School 1 managed arrangements for pupils during the school day. The Council passed the questions on to the School and received a response the same day. I have not seen evidence that the Council sent this information to Miss X and other parents appealing.
23. The appeal hearings took place over two days. The panel considered Miss X’s case on 14 July 2020. The following day the Council wrote to Miss X to say her appeal was unsuccessful. It said it would send full details of the decision with reasons “as soon as possible.”
24. The clerk sent the full decision letter on 26 August explaining the reasons for the appeal panel’s decision.
25. Miss X was not happy with the decision and complained to the Ombudsman. She felt the appeal panel had not taken proper account of B’s medical condition. She complained about delay in holding the appeal and in sending the decision letter. She also said the Council had not asked her about how she would like the appeal to be heard or given her a chance to ask questions or submit further evidence.

Analysis – was there fault causing injustice?

Appeal arrangements

26. Miss X says the only information she received before the hearing was the date and the decision that it would be a paper hearing. However I have seen evidence that she replied to the Council with her preferences for the format of the hearing. So the Council must have written to her about this. Also the letter giving her the details of her hearing invited her to send in questions or further evidence if she wished. The Council also sent her information about how the appeal panel would consider the appeal. Based on this evidence I do not find that the Council was at fault in failing to give Miss X the chance to put questions or further evidence to the appeal panel.
27. The Council has not been able to provide evidence that it sent Miss X copies of the replies to the questions to School 1. So I consider it was at fault. Miss X should have seen all the information the panel had about the Council’s case.
28. Miss X also complains about delay. She appealed in March 2020 and the appeal panel dealt with her case in mid-July, over four months later. Although the Council sent the brief letter with the result of the appeal the following day, it took another six weeks to send out the full decision letter explaining the reasons.
29. In response to the Ombudsman’s enquiries the Council has explained that when the lockdown was announced it put all face to face hearings on hold until the Government issued the temporary regulations in April 2020. It says it then had to:
• arrange for all independent appeal panel members and clerks to receive training on hearing virtual appeals;
• set up new processes and inform schools about the new arrangements; and
• draft and publish a new timetable to give hearing dates to over 600 schools.
30. The Council says this meant it did not hold its first set of appeals until 15 June 2020.
31. Regarding the delay in sending out the full decision letter, the Council has provided the following explanation. It says it co-ordinates a large number of appeals that have to be heard in a short time frame. To cope with the volume of appeals it sent out two decision letters: the first outlining the result of the appeal and the second explaining the reasons for the decision. Due to the pandemic it had a shortage of available clerks. This meant it had to use those clerks that were available every day, leading to some delays in sending out the second decision letters. In this case the clerk dealing with appeals for School 1 clerked every day for several schools up to 17 August 2020. She then drew up the 59 decision letters for School 1 appeals and sent them out to the parents.
32. The temporary regulations and the Guidance give admission authorities more flexibility than usual in the timing of appeals and issuing decision letters, to allow them to cope with the demands of the pandemic. The March 2020 appeals were the first set of appeals to be heard under COVID-19 conditions. The Council had to set up new systems and there were staff shortages. Given this, my view is that the Council has provided a satisfactory explanation for the delays in this case. It has provided evidence that it held the appeal “as soon as reasonably practicable”, and that it was not possible to send the decision letter within seven days. So I do not consider the delays were a result of fault by the Council, although it is understandable they caused Miss X uncertainty and anxiety.

Appeal Panel’s decision-making

33. The Clerk’s notes and the full decision letter show that the appeal panel followed the two-stage process in reaching its decision. It found the admission arrangements were lawful and had been correctly applied in B’s case. It found that admitting further pupils would be detrimental to the education of children at the School. It set out the list of points Miss X made in her written appeal. It said it carefully considered her reasons for wanting a place at School 1, but did not consider her case outweighed the prejudice to the School.
34. In considering Miss X’s reasons for appeal the panel said it took into account that School 1 “would be more convenient” for her than School 2. It noted that because of B’s medical condition she would like him to be with his childminder after school and that she believed School 2 was too far away. But it said School 2 was “only slightly further away from your home” than School 1 by straight-line distance. So it did not consider this was a strong enough argument to override the Council’s case.
35. I find that the panel did not consider Miss X’s point about B’s medical condition properly at stage one or stage two. Her argument was that School 1 was the most suitable school for B because it is close to the childminder who could look after him after school. In stage one there is no evidence the appeal panel considered whether the Council should have placed him in category 2 of the admission criteria on medical or welfare grounds.
36. In the second stage the finding that School 2 is only slightly further from Miss X’s home than School 1 does not address her point about the childminder and B’s medical condition. The relevant point was not how far away School 2 is from Miss X’s home, but how far away it is from the childminder.
37. For these reasons I consider there was fault in the appeal panel’s decision-making and in how it explained its decision. This calls into question the decision to refuse the appeal. I do not know whether the fault affected the outcome of the appeal, but the uncertainty is an injustice to Miss X.

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Agreed action

38. The Council has agreed that within one month of the decision on this complaint it will offer Miss X a fresh appeal with a different panel and clerk. It has agreed it will do everything possible to enable the hearing to take place by video or telephone conference this time as Miss X has said she has the necessary equipment and there will be only one appeal taking place.

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Final decision

39. I have found that the delays in dealing with the appeal were not a result of fault by the Council, but there was fault in the appeal panel’s decision-making. The offer of a fresh appeal is a suitable remedy. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman