Summary: We upheld part of Mrs X’s complaint about an unsuccessful school appeal for her son. There was no fault in the Council’s decision to hold appeals based on written submissions or in how the panel considered the evidence Mrs X provided. However, there was fault in the decision letter following the appeal. While this did not cause Mrs X an injustice, the Council has agreed take action to prevent future injustice to others.

The complaint

1. Mrs X complains about an unsuccessful school appeal for her son, Y. She says the appeal panel failed to explain why the reasons she gave for her son’s under-performance in the Kent Test were not sufficient. She is also unhappy the appeal was decided on written submissions only and she did not have an opportunity to present her case. She would like the panel to reconsider its decision.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’s or appeal panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 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 have considered the complaint made by Mrs X and the documents she provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legislation and guidance

School admission appeals

8. Statutory guidance about school admissions and appeals is in The School Admissions Code and School Admission Appeals Code, published by the Department for Education.
9. 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 are due to remain 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’. This decision reflects the version of the guidance published on 1 February 2021.
10. Outlined below are key points from the School Admissions Code and School Admission Appeals Code. Where the emergency regulations introduced a temporary change to the admission appeal rules, it is identified.
11. Parents and carers have the right to appeal an admission authority’s decision not to offer their child a school place. An independent appeal panel decides the appeal.
12. A clerk supports the appeal panel. Parents can send information in support of their appeal. The clerk must send all papers required for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority.
13. The School Admission Appeals Code says appeal panels must allow appellants the opportunity to appear in person and present their case. The emergency guidance stated that face-to-face hearings should not take place, and appellants should be offered a hearing by telephone or video conference wherever possible.
14. The appeal panel could decide to hold the hearing remotely if it was satisfied that:
• the parties would be able to present their cases fully;
• each participant had access to video or telephone facilities allowing them to engage in the hearing; and
• the appeal hearing could be heard fairly and transparently in this way.
15. Where this was not possible, appeals could be conducted entirely based on written submissions. The guidance suggested a process for deciding appeals on this basis but said admission authorities and panels had to exercise their own judgement in each appeal to ensure parties were able to fully present their case.
16. For the panel to make a decision which is fair and transparent, they had to ensure the parties could fully present their case by written submissions. The emergency guidance suggested in these circumstances the admissions authority may follow this process:
• The clerk should contact the appellant and presenting officer. The presenting officer should have a copy of the appeal lodged and be asked to submit the admission authority’s arguments and evidence. The appellant should be given the chance to send more evidence if they wish. All submissions should be in writing.
• The panel and clerk should meet by telephone or video conference to consider the submissions and draw up questions for the appellant and presenting officer. The aim should be to clarify points made and seek further relevant information. They should bear in mind that appellants may be less familiar with the information and arguments required, and may have less experience preparing written submissions.
• The clerk should send the questions and all the papers to each of the parties. For example, the presenting officer’s submission will be sent to the appellant with both sets of questions, and vice versa.
• Both parties should reply with answers to the questions, and any further points they wish to make. On receipt, the clerk should send each party’s submission to the other party. The parties should be informed that any information or evidence not sent by the relevant deadline might not be considered by the panel.
• 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 prescribed in the Appeals Code.
17. 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 admissions arrangements complied with the requirements set out in the School Admissions Code;
• the admission arrangements were applied correctly; and
• the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.
18. If a panel decides that admitting further children would prejudice the provision of efficient education or the efficient use of resources, they move to the second stage: balancing the arguments. The panel must balance the prejudice to the school against each appellant’s case for their child to be admitted.
19. Appeal panels must either uphold or dismiss an appeal and must not uphold an appeal subject to any conditions. Appeals must be decided by a simple majority of votes cast. A panel’s decision that a child shall be admitted to a school is binding on the admission authority.
20. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
21. The appeal panel must write to the appellant 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.
22. The guidance accompanying the emergency regulations urged admission authorities to settle appeals lodged in the main admissions round before the start of the September term wherever possible.

Admission to grammar school

23. Children who wish to be considered for entrance to grammar school sit the ‘Kent Test’. Children receive three standardised scores – one for English, one for maths and one for reasoning, and a total score. For admission to grammar school in 2021, children needed a total score of 332 or more, with a score of 108 or more in each of the three tests. Approximately 20% of children are identified as suitable for grammar school through the test.
24. A further 5% of children are identified as suitable for grammar school through the Head Teacher Assessment Panel. The panel considers children who did not achieve the required score in the Kent Test but whose primary school believes they are of grammar school ability. Information provided by the Council suggests there may be a range of reasons for unrepresentative scores in the test, including extended personal illness, social or emotional problems affecting learning in the past year and having English as an additional language. A child’s school can request the child is assessed by the panel and must provide evidence to support their case, including history of scores from standardised tests and relevant schoolwork.
25. The school in this case is a grammar school and admits children who reach the required scores in the Kent Test. The School Admission Appeals Code says panels may be asked to consider an appeal where the appellant believes the child did not perform at their best on the day of the test. In those cases, the panel must only uphold the appeal if:
• there is evidence to show the child is of the required academic standard. This may be in the form of school reports of test results or a supporting letter from their current school; and
• the appellant’s arguments outweigh the admission authority’s case that admitting further children would cause prejudice.

Council’s approach to appeals

26. The Council reviewed its approach to appeals after the government announced in February 2021 that the amended arrangements for holding appeals would be extended. The Council considered the following factors:
• Almost a third of panel members had declined to participate in appeals in the 2020-2021 admissions round and it was concerned this could increase further.
• It was unclear if panel members and clerks would be eligible for vaccination against COVID-19 in time for the main appeals round.
• Officers continued to work from home and a return to the office was unlikely in the coming months.
• Schools were facing pressure because of ongoing closures relating to COVID-19.
• It had trialled the use of video-conferencing for in-year appeals but found panels were limited to hearing seven appeals a day (compared with 12 to 16 appeals a day when carried out face-to-face). Panel members had told the Council they would not be willing to conduct appeals this way in the main appeals round.
• The Council expected to receive over 2,000 appeals and it would not be possible to complete them all virtually in time for the new school term.
27. The Council considered the impact of following the process outlined in paragraph 16. It said the availability of Council officers and school staff to carry out the process would present difficulties. However, its main concern was the availability of panel members. It said even if the Council and schools could support an additional questioning stage, it has insufficient panel member capacity to hear those appeals in a timely way. It said this would mean appeals continuing into the next academic year. The Council considered such a delay would cause a greater disadvantage to appellants than failing to include a questioning stage as part of the appeal.
28. The Council did introduce some changes to its appeals process. It said schools would publish their defence statement and accompanying documentation on their website on national offer day. Parents would be able to address any key points in the school’s defence in their appeal submission. A frequently asked questions document would accompany the school’s defence statement, which explained the appeal process, and included key questions a panel would usually ask a school and a parent. Parents who were unable to provide a written statement could request the appeal be heard in a different format.
29. The Council said introducing these steps meant parents would have all relevant information available to them to include in their appeal submission and offered the best opportunity to hear all appeals in a fair and transparent way before the start of the new school year.

Ombudsman guidance

30. In May 2020, the Ombudsman issued guidance for Councils, ‘good administrative practice during the response to Covid 19’. This guidance stated that basic record keeping was vital during crisis working. It advised there should always be a clear audit trail of how and why decisions were made, particularly summarising reasons for departing from normal practice.

What happened

31. At the time of the Kent Test, Mrs X and Y lived in London. Mrs X says Y had to travel approximately 80 miles to take the Kent Test in Dover.
32. Y sat the Kent Test in autumn 2020. He scored 316 in total and did not achieve the required score of 108 or more in English or maths. The Council sent Y’s school information about how to refer cases to the Head Teacher Assessment Panel, but the school did not refer Y.
33. Mrs X applied for a grammar school place for Y in the normal admissions round. The school did not offer Y a place as he had not met the school’s entry requirement.
34. Mrs X appealed the decision not to admit Y. In her appeal to the Council, she referred to Y’s academic ability and extra-curricular activities. She said he fell short of the required mark in the Kent Test by a small margin. Mrs X said she had been very unwell with COVID-19 in the Spring of 2020 and this had affected Y and his preparation for the test. She said Y had to travel two hours to sit the test and this meant he was tired which had also affected his performance. Finally, she referred to the opportunities offered by the school and that in her view Y was of grammar school ability. She said she looked forward to meeting with the panel and answering its questions.
35. Mrs X provided a reference from Y’s primary school which he was achieving the expected level of attainment in maths and writing, and exceeding expectations in reading.
36. The Council wrote to Mrs X in April. It said the panel was satisfied it was not possible to offer remote access for appeals for the school and had agreed to make their decisions based on written evidence. It provided a link to online document storage and invited Mrs X to add any additional information. It said the appeal panel would meet by tele/videoconferencing at the end of the month.
37. The panel met remotely in April. At stage one the panel considered the school’s case that admitting more pupils would prejudice its capacity to provide efficient education or use its resources. The school’s case said it could accommodate an extra 20 pupils. The clerk’s notes show the panel was satisfied the school had applied its admission arrangements correctly and impartially. Due to children taking up places elsewhere, the panel decided there were 49 places available without causing prejudice to the school.
38. At the second stage, the panel considered Mrs X’s appeal. The panel noted Y had not been assessed as being suitable for admission to a grammar school and it was not satisfied evidence had been provided to demonstrate he was of the required academic standard. The panel noted the points Mrs X raised in her appeal, particularly her ill health, the long journey to take the test and Y having English as an additional language. The chair noted the reference from Y’s primary school did not provide evidence of his academic ability. The panel concluded there was insufficient evidence to indicate Y would be able to cope with the challenge, rigour and pace of the academic curriculum in grammar school and refused the appeal.
39. The panel carried out a ranking exercise to decide which children to admit. Panel members individually scored the strength of each child’s case out of four and provided reasons for their score. Children considered not to be of the required standard for grammar school, or who were of the required standard but whose case did not outweigh prejudice to the school, received a score of zero. Children who were of the required standard for grammar school and whose cases outweighed prejudice to the school were given a score between one and four, depending on the strength of their case. Y received a score of zero.
40. The panel’s ranking exercise identified 49 children it felt had made the strongest case for admission and it decided to uphold their appeals. It refused the remaining 32 appeals.
41. The clerk wrote to Mrs X with the panel’s decision in May. This said the school was oversubscribed and could not take additional pupils without causing prejudice. The letter said the panel recognised Y had a number of strengths in terms of academic ability but it was satisfied the admission authority had shown the criteria for transfer to a grammar school had not been met. It said it took account of Mrs X’s arguments but could not justify making an exception in Y’s case as there was insufficient evidence of his suitability for grammar school.

Analysis

42. The Council considered holding appeals remotely and decided it was not possible to do so fairly. I have seen no reason to question this decision. Therefore, there is no fault in the decision to hold appeals based on written submissions in this case.
43. The Ombudsman expects admission authorities to follow non-statutory guidance unless they can provide evidence for any decision to depart from it. In this case, the Council has provided a detailed and robust explanation of its decision to depart from the process outlined in paragraph 16 including changes it made to its process from the previous year. I consider that while the process limited the ability of the panel to ask questions, on balance it offered a fair outcome to families, enabling their appeal to be heard in time to plan for the next academic year. Therefore, there is no fault in the process the Council used to decide its appeals.
44. The role of the Ombudsman is to consider procedural fault. We do not question the professional judgement of the appeal panel unless there is evidence of procedural fault. Provided the panel made its decision in a way which is procedurally sound, I cannot criticise the judgment it eventually reached.
45. The clerk’s notes show the panel took account of the information Mrs X provided and concluded there was a lack of evidence to show Y was of the required academic standard. As a result, it had to refuse Mrs X’s appeal. I do not find fault with the panel’s decision making.
46. However, the decision letter sent following appeal panel was incorrect when it said the school was oversubscribed and could not admit any further pupils. Both the school’s case and the panel’s deliberations at stage one show it could admit 49 pupils without causing prejudice. This is fault. While there is no injustice to Mrs X or Y by this fault, it is important that decision letters accurately reflect the discussion and decision making at panel. The Council has agreed to take the action below to address this.

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Agreed action

47. Within one month of my final decision, the Council will remind clerks their decision letters should be an accurate reflection of the discussion which took place during the appeal hearing.

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Final decision

48. I have completed my investigation with a finding of fault, though this did not cause an injustice to Mrs X or Y. The Council has agreed to take action to prevent future injustice to others.

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Investigator's decision on behalf of the Ombudsman