The Ombudsman's final decision:
Summary: Mr X complains about a school admission panel’s decision to hold his appeal for a place for his son at his preferred school by written submissions. There is no evidence of fault in the appeal panel’s decision to consider Mr X’s appeal by written submissions. There is fault in how the appeal panel considered Mr X’s appeal so he cannot be certain it was properly considered. The Council has agreed to remedy this injustice by offering a fresh appeal to Mr X.
- Mr X complains about the way the appeal panel considered his appeal for a place for his son at a primary school. In particular, Mr X complains it was unfair to hold the appeal by written statements as he could not fully present his case in the way he would have been able to do if the appeal was held by telephone or video.
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 panel followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to Covid-19’.
- 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)
How I considered this complaint
- 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.
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. 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.
- 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.
Appeal panel procedure
- 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.
- The Appeals Code says whilst the panel must take account of the school’s published admission number, the admission authority must be able to demonstrate prejudice over and above the published admission number has been reached. The panel must not reassess the capacity of the school but must consider the impact on the school of admitting additional children.
- 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 clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
- 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.
- Mr X applied for a school place in year four for his son as the family had recently moved to the area. The school’s published admission number for year 4 is 60. The Council refused a place for Mr X’s son as there were 62 pupils in year 4 and offered a place at another school. Mr X appealed against this decision.
- The Council arranged for Mr X’s appeal to be heard by an appeal panel in November 2020 by written submissions. The Council has said it had approximately 130 appeals to arrange at this time. In response to my enquiries the Council said that all appeals have been considered by written submission because the independent appeals panel was not satisfied the conditions set by the temporary regulation could be met as it was not possible to hold appeals fairly by video or telephone conference. This was because:
- The Council could not provide secure remote access platforms for all participants and the necessary equipment for panel members.
- The panel was not satisfied that all parties would have access to video or telephone facilities which would allow them to engage in the hearing at all times. It took into account the poor WIFI connections in rural parts of the Council’s area.
- The decision was taken after technological trials and discussions with the Appeals team, IT services and an education law barrister.
- It was also in the interests of consistency and fairness to all appellants to hear the appeals in the same way.
- The appeal panel continued to hear appeals by written submissions in the interests of consistency and fairness to all appellants.
- The Council will hold appeals by written submissions this year for the same reasons.
- The Council notified Mr X that his appeal would be considered by written submissions and the reasons for this. It explained the procedure for the written appeal and need for appellants to fully explain their case. It also asked appellants to contact the Council if they required any assistance in presenting their case. The Council sent a copy of the school’s case to Mr X and the panel to enable them to ask written questions which the school responded to. The panel also sent written questions to Mr X which he responded to.
- The panel considered the appeals by video conference and were assisted by the clerk. The clerk’s notes record the panel was not satisfied the conditions set out in the temporary regulations to hold remote hearing could be met and that the parties had the opportunity to fully present their case.
- The notes also record the panel was satisfied the admission arrangements complied with the school admissions code had been correctly and properly applied. The panel also found the admission authority had made its case for prejudice and to admit another child would prejudice the efficient education or use of resources at the school. The clerk’s notes do not record the panel’s consideration and reasons for the panel’s decision.
- The panel then considered if Mr X’s reasons for wanting a place for his son at the school outweighed the prejudice to the school of admitting another child. The clerk’s notes record the panel did not consider Mr X’s reasons were strong enough to outweigh the prejudice of admitting another child to the school. The panel refused Mr X’s appeal.
- The clerk notified Mr X of the panel’s decision by letter. The panel’s decision letter does not explain why the panel considered the admission authority had made its case for prejudice.
Decision to consider appeals by written submissions
- The temporary regulations provide appeal panels can consider appeals by written submissions if they consider all parties will not be able to present their cases fully, will not have access to video or telephone facilities and the appeal cannot be heard fairly and transparently. The Council has provided detailed reasons for why the appeal panel was not satisfied it could hold the appeals by video or telephone conference. I also note the Council had trialled holding appeals remotely. I am therefore satisfied the panel properly considered whether it could hold appeals remotely and there is no fault in its decision to hold them by written submissions.
- I am satisfied Mr X could fully participate in his appeal as he submitted his reasons for the appeal and answered the panel’s questions. Mr X was also given the opportunity to ask questions of the admission authority.
Panel’s decision making
- There is fault in how the panel made its decision on Mr X’s appeal. Appeal panels should not just accept the admission authority’s case for prejudice. Panels must satisfy themselves the admission authority has made the case and not simply accept the case.
- The Council has said the panel satisfied itself the admission authority made its case. But there is insufficient evidence to show the panel’s consideration. The clerk’s notes summarise the admission authority’s reasons for its case but there is no evidence to show what the panel made of the admission authority’s case. There is no record of why the panel was satisfied it had made the case for prejudice. The notes do not show the panel considered the impact of admitting additional children and why this would cause prejudice.
- The Appeals Code provides the clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions. The lack of record of the panel’s consideration could be down to poor record keeping. But the lack of records of the panel’s consideration means the Council cannot demonstrate proper consideration of Mr X’s appeal. This is fault. As a result, Mr X cannot be satisfied his appeal was properly considered. The Council should remedy this injustice by arranging a fresh appeal with a new panel and clerk.
- That the Council will:
- Arrange a fresh appeal to be heard by a new appeal panel assisted by a different clerk. The Council should take this action within eight weeks of my final decision.
- By training or other means, reminds panels and clerks of the need for panels to satisfy themselves the admission authority has made its case for prejudice and the effect of admitting another child to the school and for the clerk to record clear reasons for the panel’s decisions and these reasons are provided in the decision letter. The Council should take this action within one month of my final decision.
- There is no evidence of fault in the appeal panel’s decision to consider Mr X’s appeal by written submissions. There is fault in how the appeal panel considered Mr X’s appeal so he cannot be certain it was properly considered. The Council has agreed to remedy this injustice by offering a fresh appeal to Mr X.
Investigator's decision on behalf of the Ombudsman