The Ombudsman's final decision:
Summary: Mr X complains there was fault in how an appeal panel considered his appeal for a place for his son at Madani Boys School. This was a fresh appeal following a previous Ombudsman’s investigation. We consider there is fault in how the appeal panel considered Mr X’s appeal as it did not consider his appeal on the basis of the original papers which disadvantaged him. The School has agreed to remedy this injustice by arranging a further fresh appeal with a different appeal panel and clerk.
- Mr X complains that there was fault in how the Independent Appeal Panel considered his appeal. In particular he considers:
- The decision to hold the appeal by telephone prevented the appeal panel from verifying the information given by the school to demonstrate it could not admit further pupils;
- The appeal panel did not give adequate consideration to the fact his daughter attended the girls school when reaching their decision.
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 authority and 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 admission authority’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;
- Made enquiries of the admission authority and considered the information provided;
- Invited Mr X and the admission authority to comment on the draft 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.
- Independent appeal panels must follow the law when considering an appeal. The panel must consider whether:
- the admission arrangements comply with the law;
- the admission arrangements were properly applied to the case;
- The panel must then consider whether admitting another child would prejudice the education of others.
- If the panel finds there would be prejudice the panel must then 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.
- 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.
- In October 2019, Mr X applied for a place for his son, Y, at Madani Boys School in year 8. The school refused a place for Y as year 8 was oversubscribed. Mr X appealed against this decision and his appeal was heard by an appeal panel in March 2020. The appeal panel refused Mr X’s appeal.
- Mr X complained to the Ombudsman that the appeal panel did not properly consider his appeal. We found fault in the way the appeal panel considered Mr X’s appeal which could call into question its decision on his appeal. The school agreed to hold a fresh appeal hearing for Mr X.
- Leicester City Council, on behalf of the school, arranged the fresh appeal for November 2020. By the time of the appeal Y had moved into year 9 so the appeal panel heard the appeal for a year 9 place.
- The appeal was conducted by telephone. The clerk’s notes show the presenting officer outlined the reasons why the school had not offered a place for Y and why it considered additional pupils would prejudice education and resources at the school. These reasons included that Y’s year group was oversubscribed, the school was at or above its maximum capacity and its facilities would be compromised by the admission of additional pupils. The presenting officer also explained the school had increased the published admission number (PAN) for year 7 from 60 to 90 in September 2020.
- The clerk’s notes record Mr X asked questions about the accuracy of the number of pupils in the school and the presenting officer confirmed the accuracy.
- Mr X presented his case. The clerk’s notes show he again questioned the accuracy of the admission figures. Mr X also considered the school could cope with the admission of Y as it had previously managed with more pupils in his year group. He explained his reasons why he wanted a place at the school for Y including that his daughter had a place at the girls school. The presenting officer answered Mr X’s concerns about the accuracy of the admission figures and the appeal panel also asked questions of Mr X.
- The appeal panel refused the appeal. The clerk’s record of the appeal panel’s decision making shows it considered the admission of a further pupil would prejudice the efficient education and use of resources at the school. In making this decision the panel noted the school had agreed to take an additional 30 pupils in September 2020. It also noted years 8 and 9 were either at or over their admission numbers. It also considered the school had a limited site and was stretched in terms of physical space.
- The record of the appeal panel’s decision making shows the panel then considered if Mr X’s reasons for wanting a place at the school outweighed the prejudice of admitting another pupil. The appeal panel noted Mr X’s reasons for wanting a place including that his daughter attended the girls school and his view the school had previously admitted more pupils into his son’s year so could admit his son. The appeal panel decided Mr X’s reasons did not outweigh prejudice to the school. The notes record the panel looked at the school’s figures as a whole and had to take into account all areas, not just Y’s year group.
- The clerk to the appeal panel notified Mr X of the appeal panel’s decision and reasons for its decision by letter. These included that the admission of additional pupils in year 7 meant there was little flexibility on the school site.
- Mr X made a complaint to the Ombudsman as he considers the appeal panel did not properly consider his appeal. He considers the appeal panel could not verify the information provided by the school as the appeal was held remotely and it did not properly consider his case. He also considers the appeal could have been held face to face as schools were open.
- I asked the School why it had not considered Mr X’s appeal on the figures applicable at the time of his previous appeal in March 2020. The School said it was appropriate to consider the appeal as a year 9 appeal as Y was in year 9. The class numbers for year 9 were the same as year 8. It did not consider the increase in the admission number for year 7 from September 2020 had disadvantaged Mr X’s appeal as the appeal panel had considered the data and information relating to Y’s year group.
- There is no evidence of fault in the appeal panel’s decision to hold the appeal by telephone. This was in accordance the temporary regulations for appeal hearings. The appeal was heard during a period of lockdown due to the COVID-19 pandemic. So, I am satisfied it would not have been appropriate to hold the appeal face to face.
- Mr X considers the appeal panel should have visited the school to verify the information presented at the appeal hearing. Appeal panels are not expected to visit schools as part of an appeal hearing. The clerk’s notes and appeal panel’s decision letter show the appeal panel considered Mr X’s concerns about the accuracy of the information provided by the school when reaching its decision.
- The School arranged the appeal to remedy the injustice caused by the faults in Mr X’s appeal of March 2020. When making recommendations to remedy a person’s injustice we aim to put the person complaining back into the position they would have been in had the fault not occurred. The appeal panel should therefore have heard Mr X’s appeal on the original papers presented to the appeal panel in March 2020.
- On balance, I consider this fault has caused injustice to Mr X. The situation at the school had changed significantly from March 2020 as it had increased its by PAN by 30. The clerk’s notes and appeal panel’s decision letter show the increase in the PAN was a factor in the panel’s decision to refuse Mr X’s appeal. Mr X was therefore disadvantaged by the decision to hold the appeal on the admission figures of November 2020. This calls into question the appeal panel’s decision to refuse Mr X’s appeal and Mr X cannot be certain his appeal was properly considered.
- The School should therefore offer a further fresh appeal to Mr X with a different appeal panel and clerk. The appeal should be heard on the papers presented to the March 2020 appeal panel.
- The School will offer a fresh appeal with a different appeal panel and clerk and the appeal should be heard of the papers presented to the March 2020 appeal panel. The School should arrange the appeal to be heard by early September 2021.
- The appeal panel is at fault as it did not consider Mr X’s fresh appeal hearing on the original papers from March 2020. This disadvantaged Mr X’s appeal and he cannot be certain his appeal was properly considered. The School has agreed to remedy this injustice by offering a fresh appeal with a different panel and clerk. This is an appropriate and proportionate remedy so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman