Surrey County Council (20 007 451)

Category : Education > COVID-19

Decision : Upheld

Decision date : 27 May 2021

The Ombudsman's final decision:

Summary: Mr and Mrs X complain about delays in holding their appeal for a place for their child at an infant school and how the appeal panel considered their appeal. The Council is not at fault for the time taken to hold Mr and Mrs X’s appeal. There is also no evidence of fault in how the appeal panel considered Mr and Mrs X’s appeal. However, the Council is at fault for the delay in providing the appeal panel’s detailed reasons for its decision and for not notifying Mr and Mrs X of the delays in holding their appeal. But these faults did not cause significant injustice to Mr and Mrs X to warrant further action from the Council.

The complaint

  1. Mr X complains that:
  • The Council delayed in arranging an appeal panel to consider his appeal for a place for his child at an infant school and failed to respond to his and his wife’s emails which caused distress to them. Mr X also considers the Council showed a lack of compassion during the appeals process.
  • The appeal panel failed to properly consider his appeal as it did not give sufficient consideration to whether it was reasonable for Mr and Mrs X to take their two children to two different schools which are approximately four miles apart.

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The Ombudsman’s role and powers

  1. 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)
  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 the admission panel followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.
  3. 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

  1. I have:
  • Considered the complaint and the information provided by Mr X;
  • Made enquiries of the Council and considered the information provided;
  • Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Impact of the COVID-19 pandemic

  1. 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’).
  2. The temporary regulations say that where face-to-face appeals cannot take place safely, hearings can be conducted by telephone or video conference.
  3. The temporary regulations set out revised deadlines and timescales for appeals. The regulations provide appeals should be determined as soon as is reasonably practicable. Admission authorities were urged to determine appeals lodged as part of the main admissions round before the start of the September term, wherever possible.
  4. Appellants must be given at least 14 days notice in writing of an appeal hearing, although they may waive their right to this in writing.

Appeal Panel Procedure

  1. Independent appeal panels must follow the law when considering an appeal. The law says the size of an infant class must not be more than 30 pupils per teacher. There are only limited circumstances in which more than 30 children can be admitted. There are special rules governing appeals for Reception and Years 1 and 2. Appeals under these rules are known as “infant class size appeals”. The rules say the panel must consider whether:
     
  • admitting another child would breach the class size limit;
  • the admission arrangements comply with the law:
  • the admission arrangements were properly applied to the case:
  • the decision to refuse a place was one which a reasonable authority would have made in the circumstances.
  1. What is ‘unreasonable’ is a high test. The panel needs to be sure that to refuse a place was “perverse” or “outrageous”. For that reason panels rarely find an admission authority’s decision to be unreasonable.
  2. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.
  3. The School Admission Appeals Code provides 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. The temporary regulations provide decision letters should be sent within seven calendar days of the hearing, wherever possible.

What happened

  1. Mr and Mrs X applied for a place for their child, Y, in reception at their local school. Mr and Mrs X’s elder child attends a school near to their preferred school for Y.
  2. The Council received a large number of applications for Mr and Mrs X’s preferred school so it applied its over subscription criteria. It did not allocate a place for Y at the school as she lived farther away than the last pupil to be admitted. The Council offered a place for Y at the nearest available school which is in a different town and approximately four miles away.
  3. In April 2020 Mr and Mrs X appealed against the Council’s decision. Their reasons for their appeal included that the decision to allocate a school four miles away was not reasonable. This was due to the difficulties in taking both children to different schools at the same time. Mr and Mrs X later submitted additional information for their appeal.
  4. Mr and Mrs X have said they sent emails chasing the Council for an appeal date but these were unanswered. In response to my enquiries the Council has said it has no record of emails from Mr and Mrs X chasing an appeal date.
  5. The Council arranged the appeal for a date in early September 2020 which was after the start of the school term. The appeal was heard by telephone call. The clerk’s notes show the presenting officer for the Council outlined the reasons why it had not offered Y a place at the school. The panel and Mrs X asked questions. The clerk’s notes also show Mrs X presented her reasons why she wanted a place at the school for Y. This included the difficulties caused by having to take two children to different schools at the same time.
  6. The record of the panel’s decision making shows it considered the Council’s reasons for not admitting Y and Mr and Mrs X’s reasons for wanting a place at the school. It decided that admitting another child would breach the infant class size limit, the admission arrangements complied with the law and had been properly applied to Mr and Mrs X’s application. The panel also decided that the Council’s decision not to offer a place for Y was not unreasonable. The panel refused Mr and Mrs X’s appeal.
  7. The following day the clerk sent a letter to Mr and Mrs X notifying them that their appeal was unsuccessful. The letter said the detailed decision letter would be sent shortly. The clerk sent the detailed decision letter to Mr and Mrs X approximately six weeks later.
  8. In response to my enquiries the Council has explained why it did not hold Mr and Mrs X’s appeal before early September 2020. Its reasons are:
  • The revised code of guidance and regulations were not published until the end of April 2020 and the Council needed time to understand it and decide how to proceed.
  • Following a canvass of panel members it decided the most timely way to hear appeals was by conference call which required the purchase of equipment and producing new guidance and processes for the appeals.
  • It was required to give appellants 14 days notice of the hearings so could not start the appeals until June 2020.
  • There were delays caused by difficulties in setting dates due to schools’ commitments and with the Council working remotely with only a limited number of officers allowed into the offices.
  • It continued to hear appeals throughout the summer holidays in order to minimise the number of appeals outstanding by the start of the new term.
  1. The Council has also said the delay in sending the detailed decision letter was caused by the above factors and its decision to prioritise hearing appeals rather than the decision letters and the volume of appeals.

Analysis

Time taken to schedule Mr and Mrs X appeal

  1. The Council took several months to arrange Mr and Mrs X’s appeal and did not hold it until after the start of the September term. On balance, I do not consider this to be fault. The Council was operating under difficult circumstances due to COVID -19. This will inevitably have caused some delays particularly when the Council was implementing the new appeal arrangements. The guidance provides the Council should hold appeals as soon as reasonably practicable and before the start of the September term, if possible. The Council has explained the barriers to holding the appeal sooner and why it was not able to hold it before the start of the September term. I acknowledge the length of time taken to arrange the appeal will have been frustrating for Mr and Mrs X. But given the circumstances under which it was operating, I do not consider Council to be at fault.
  2. I have not seen evidence to show Mr and Mrs X chased the Council for an appeal date and that the Council did not respond. But I do not consider it is proportionate to investigate the matter further. This is because any failure by the Council to respond to Mr and Mrs X’s email would not cause significant injustice to them.
  3. However, the Council should have notified Mr and Mrs X and other appellants of the delays in hearing their appeals and given them an indication of when their appeal would be heard. This would have enabled them to understand the timescale for their appeal. But this fault did not cause significant injustice to Mr and Mrs X to warrant further action from the Council.

Appeal

  1. There is no evidence of fault in how the panel considered Mr and Mrs X’s appeal. The clerk’s notes and panel’s decision letter shows it considered the appeal in accordance with the rules for infant class size appeals. The evidence shows the panel also considered Mr and Mrs X’s reasons for wanting a place at the school, including the difficulties of taking their children to two different schools. As there is no evidence of fault in how the panel considered Mr and Mrs X’s appeal, I do not have grounds to question its decision.
  2. The Council notified Mr and Mrs X of the panel’s decision within seven days of the appeal. However, the Council did not send the detailed decision letter for a further six weeks. I note the Council’s position that the temporary regulations state decision letters should be sent within seven days wherever possible and it was concentrating on hearing the appeals. But the delay of six weeks to send the detailed letter was excessive. I also note Mr and Mr X consider the delayed caused significant injustice to them. I acknowledge the wait will have been frustrating for Mr and Mrs X but this is not significant injustice to warrant further action from the Council. Furthermore, the Council had notified Mr and Mrs X of the outcome of their appeal in a timely way.

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Final decision

  1. The Council is not at fault for the time taken to hold Mr and Mrs X’s appeal for a place for Y at their preferred school. There is also no evidence of fault in how the appeal panel considered Mr and Mrs X’s appeal. However, the Council is at fault for the delay in providing the appeal panel’s detailed reasons for its decision and for not notifying Mr and Mrs X of the delays in holding their appeal. But these faults did not cause significant injustice to Mr and Mrs X to warrant further action from the Council. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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