Summary: Mr X complains that an appeal panel did not properly consider his appeal. There is no evidence of fault in how the appeal panel considered Mr X’s appeal for a place for his daughter at the school. The panel’s decision letter did not contain sufficient information for Mr X to understand why his appeal was refused which is fault. However, this did not cause sufficient injustice to Mr X to warrant a remedy.

The complaint

1. Mr X complains that an appeal panel which heard his appeal for a place for his daughter at Madani Girls School did not consider his reasons for wanting a place at the school. As a result, Mr X considers he did not receive a fair hearing.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

3. 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”.
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 and the information provided by Mr X;
• Made enquiries of the school and considered the information provided;
• Invited Mr X and the school to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

6. 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 2022. The government published guidance to accompany the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’ (‘the Guidance’).
7. The temporary regulations say that where face-to-face appeals cannot take place safely, hearings can be conducted by telephone or video conference.

Appeal panel procedure

8. 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.

9. 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.
10. 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.
11. 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.

What happened

12. Mr X applied for a place for his daughter, Y, in year 7 at Madani Girls School. The school refused a place for Y as it had allocated the places up to its published admission number to children who had higher priority under its admissions criteria. The Council offered a place at another school for Y.
13. Mr X appealed against this decision. The appeal panel conducted stage one of the appeal by written statements as it was not satisfied all participants would have access to video or telephone facilities. The panel also wanted to ensure appellants could access stage one in their own time due to the difficult circumstances caused by the COVID-19 pandemic.
14. The school sent a copy of the school’s case to the panel and appellants. This set out its reasons why the school had not offered a place and why it could not admit more pupils without prejudicing the efficient education and use of resources at the school. The school then circulated the answers to the questions to the panel and appellants.
15. The appeal panel made its decision at stage one of the appeal. The clerk’s record of the decision making shows the panel was satisfied the admission arrangements complied with the law and had been properly applied in each case. The panel was also satisfied the school had made its case and the admission of additional children would prejudice the provision of education and resources at the school. The panel listed several factors which it considered showed the school was full.
16. The panel conducted the second stage of the appeal by video conference. Mr X and a representative from the school attended the appeal. The clerk’s record of the appeal shows Mr and Mrs X presented their reasons why they wanted Y to attend the school. This included their concerns about harm to Y’s faith if she was in a non Islamic environment and due to her family heritage. The panel asked Mr and Mrs X questions about why they did not want a place at the allocated school. The record of the panel’s discussion noted the reasons why Mr and Mrs X wanted a place at the school, including the reasons why they considered the allocated school to be unsuitable.
17. The panel refused Mr X’s appeal. The record of the panel’s decision making shows it considered the school offered to be suitable and that all schools must cater for students needs and protected characteristics. The panel decided Mr and Mrs X’s reasons for wanting a place at the school did not outweigh the prejudice caused to the provision of education and use of resources at the school by admitting another pupil.
18. The clerk to the appeal panel wrote to Mr X to notify him of the appeal panel’s decision. The letter noted some of Mr X’s reasons for wanting a place at the school including Mr X’s preference for a Muslim school and included incorrect details about Mr and Mrs X’s family heritage. The letter set out the panel’s decision at stage one including its decision that to admit another pupil would prejudice the provision of education and use of resources at the school due to the extra class size and increased strain on facilities. The panel therefore decided Mr X’s ground of appeal did not outweigh the prejudice to the provision of education and use of resources at the school caused by admitting another pupil.
19. Mr X considers the appeal panel did not properly consider his appeal as the decision letter misidentified Y’s family heritage. He also considers the appeal panel did not give adequate consideration to the harm caused to Y by not attending a Muslim school.

Analysis

20. There is no evidence of fault in how the appeal panel considered Mr X’s appeal. The clerk’s records show the appeal panel considered the appropriate tests at stage one. This included the panel satisfying itself that the school had made its case for why the admission of further pupils would prejudice the provision of education and use of resources at the school.
21. The clerk’s records also show Mr X was able to present his case and the panel considered his reasons for wanting a place for Y at the school. The clerk’s records refer to Y’s correct family heritage. The records also show the panel considered Mr X’s reasons, including that he wanted Y to attend a Muslim school. So, I am satisfied the panel considered Mr X’s reasons for wanting a place at the school and it did not rely on incorrect information when reaching its decision to refuse the appeal.
22. I consider the clerk’s letter notifying Mr X of the panel’s decision to be inadequate. The letter did not clearly set out the panel’s decision making at stages one and two. Its wording suggested the panel refused Mr X’s appeal at stage two simply because it decided the school had made its case at stage one. The letter should have clearly explained how the panel had considered Mr X’s appeal at stage two including his reasons for wanting a place and why they were not sufficient to outweigh the prejudice to the school. The letter also misidentified Y’s family heritage. The letter therefore did not contain sufficient information for Mr X to understand why his appeal was refused which will have caused some frustration to him. However, I do not consider this to be sufficient injustice to warrant a remedy from the school, particularly as there is no fault in how the panel considered his appeal.

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Final decision

23. There is no evidence of fault in how the appeal panel considered Mr X’s appeal for a place for his daughter at the school. The panel’s decision letter did not contain sufficient information for Mr X to understand why his appeal was refused which is fault but this did not cause significant injustice to him. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman