Summary: Mrs X complains about the way the appeal panel dealt with her appeal for a place at the School for her daughter. We find there was some fault in the appeal arrangements and information provided to Mrs X. The School has agreed to offer her a fresh hearing.

The complaint

1. Mrs X complains about the way the independent appeal panel dealt with her appeal for a place at St Paul’s School for Girls for her daughter. She complains that the panel:
• made a decision about the capacity of the school to take more pupils without discussing this at the hearing;
• did not give her a chance to put all her questions or make all the points she wanted to make, including about the school's capacity; and
• made the decision too quickly.
2. She says this shows the panel did not consider her case properly and she did not get a fair hearing.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with the actions or proposed actions of the body complained about, 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 discussed the complaint with Mrs X and considered the information she provided. I considered the information the School and Clerk to the appeal panel provided including the appeal papers, the Clerk’s notes of the hearing and the decision letter. I considered relevant law and guidance on school admission appeals.
6. 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

School admission appeals

7. Parents have the right to appeal against a decision to refuse admission to a school. The School Admission Appeals Code (‘the Appeals Code’) is statutory guidance for admission authorities and appeal panels to follow in arranging and deciding admission appeals. Under the Code appellants must have the opportunity to appear in person and present their case.
8. When making the decision, panels must follow a two-stage decision making process. At stage 1, the panel examines the decision to refuse admission. The panel must consider whether:

• the admission arrangements comply with the law;
• the admission arrangements were properly applied to the case;
• admitting another child would prejudice the education of others.

9. If the panel finds there would be prejudice, the panel must then move to the second stage and 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.

Impact of the COVID-19 pandemic

10. In April 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').
11. The temporary regulations say that where face-to-face appeals cannot take place safely, hearings can be conducted by telephone or video conference.
12. The Guidance advises that where appeals are decided on written submissions only, the admission authority may take the following approach.
• 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.
13. Decision letters should be sent within seven calendar days of the hearing, wherever possible. 

What happened

14. Mrs X applied for a place for her daughter, D, in year 7 at St Paul’s Catholic School for Girls. There were over 900 applications for 166 places. The first five categories in the admission criteria are for baptised Catholics. There are then two categories for non-Catholic girls, those in care or previously in care, and siblings. The eighth category is for other non-Catholics. Although D attended a Catholic primary school she is not a baptised Catholic and so she fell into category 8. D was refused a place because the last place went to an applicant in category 8 who lived closer to the school than her.
15. Ms X appealed against the decision. She explained her reasons for wanting her daughter to attend the School. She said she wanted an all-girls school and although she is not Catholic herself, she supports the values of the Catholic faith.
16. The Clerk wrote to Mrs X on 21 April 2021 giving her a date for her virtual hearing four weeks later. He provided information about the procedure, as follows.
• The School would send Mrs X its prejudice statement.
• Mrs X’s appeal papers would be sent to the School and the panel.
• Mrs X should think of questions for the panel, and the Clerk would ask the ask panel for any questions it had for her.
• The Clerk would then ask Mrs X to send questions to him to put to the School, send her the questions from the panel, and ask her to provide further information if she wished.
17. The Clerk explained the procedure on the day of the hearing as follows:
• Introductions by the Chair.
• Mrs X can put questions of the School.
• Mrs X can present her case.
• The panel can put questions to Mrs X.
• The Chair ends the appeal.
18. The procedure for the appeal hearing set out in the papers in the appeal pack was slightly different. Instead of starting with questions from Mrs X to the School, it said the School’s presenting officer would start by presenting the School’s case, followed by questions from the appellants and panel. The rest of the process was the same as described previously.
19. The School sent its case to parents and the panel in the form of a Governors’ Statement. The Panel sent written questions to the School. The School responded in writing and the Clerk sent the response to panel members and parents before the appeal hearing in the form of a ‘Q&A’ document.
20. A week before the hearing date the Clerk wrote to Mrs X to provide a link to join the online hearing. He also explained that panel members had read the papers she submitted, the School's paper in which they explained why they had not offered her child a place, and the Q&A document.
21. The Clerk described the sequence of events as follows:
• Introductions.
• The Chair will ask the School whether it has anything further to add to the documents and answers to questions it has already given.
• Mrs X will be invited to ask the School any questions she has.
• The Chair will then invite her to explain why she wants her child to have a place at the School.
• The Panel and the School will then have the opportunity to ask her questions.
• Once she has told the Panel everything she wants it to consider, the hearing will end.
• Once all the appeals had taken place, which would take several days, the panel would decide the appeals. It would send out the decision letter within five school days of the final appeal hearing.
22. Mrs X responded saying she would be sending the Clerk her questions for the school. The Clerk replied telling her not to send the questions to him as he would only send them on to the School. He went through the procedure again, referring to the panel inviting her to ask any questions she had for the School at the hearing. In her response Mrs X said she would wait for the hearing to put her questions forward.
23. The appeal took place by remote hearing. Mrs X had a friend accompanying her.
24. The appeal was unsuccessful. The decision letter was dated the day of the hearing and Mrs X received it the following day. It said the appeal panel was satisfied the admission arrangements were lawful and had been correctly applied in D’s case. It found the School had made out its case that admitting further pupils would be harmful to the education of children at the School. It said it took account of the information the School provided including the numbers of pupils and the physical space available in the School, and the way it organises the pupils into classes. The letter said the panel then moved to the second stage of its decision-making. It noted the points she made and sympathised with her position. But it said on balance it did not consider her case outweighed that of the School.

Analysis – was there fault causing injustice?

25. Mrs X’s complaint centres on stage 1 of the appeal. She says the question of the School’s capacity to take more pupils was not discussed at the hearing and she did not have a proper chance to ask questions or make her points about it.
26. In response to the Ombudsman’s enquiries, the Clerk explained that the panel examined the School’s case and responses to its questions in writing. Then parents questioned the School’s case live at their individual hearings. The panel made its decisions after hearing all the appeals. The School is not at fault in taking this ‘hybrid’ approach, with stage 1 considered on the papers and the individual cases heard at virtual hearings, as long as the process is transparent and parents get a proper opportunity to make points and ask questions at stage 1.
27. I have looked at the Clerk’s notes of the appeal hearing, the appeal papers including the Q&A document and the Governors’ Statement, and correspondence between the Clerk and Mrs X. The documents show, and Mrs X has confirmed, that she received the Governors’ Statement and the Q&A document. These refer to the School being over-subscribed and to pressures on space and resources if more pupils were admitted.
28. The Clerk’s notes show the following:
• At the beginning of the hearing, after introductions, the Chair asked Mrs X if she had any questions for the School. Her friend asked questions about how distances were measured.
• After questions and answers with the School’s representative the Chair said ‘if no further questions, now come to your case’. He then gave a further opportunity to put questions to the School: ‘just do quests for sch first’
• The friend accompanying Mrs X then asked further questions before the Chair said that concludes the first part of the appeal, ‘the school’s side’. He then moved onto giving Mrs X an opportunity to say why she wanted her daughter to attend the School.
• At the end of the hearing the Chair asked if anybody wanted to say any “final things you have not already introduced”. In response, Mrs X’s friend summarised her case.
29. So, based on the evidence I have seen, I find that the appeal panel did give Mrs X an opportunity to ask questions and present her case. Nevertheless I have some concerns about her ability to participate fully in the first stage of the appeal.
30. First, nowhere in the papers Mrs X received was the figure given for her home to school distance. The School provided me with the figure in response to my enquiries and confirmed it was given to the appeal panel. The Governors’ Statement gives the distance of the last child offered a place in category 8. But Mrs X said she did not know her own home to school distance. There was a discussion at the appeal hearing about how distances were measured under the admission arrangements. But there is no evidence to show the panel told Mrs X the distance in her case.
31. I consider this is fault and meant she was not fully aware of the reasons for the decision in her daughter’s case.
32. Second, there was some confusion and lack of clarity in the information provided to Mrs X before the hearing. At one point it says the process at the hearing would start with the School presenting its case. Elsewhere it tells Mrs X it would start with questions from her to the School.
33. Also the Clerk told Mrs X she could send in questions for him to pass on to the School. Then when she offered to do so, he advised her not to and referred to being able to ask questions at the hearing. Mrs X said she would raise them at the hearing. But she says although she noted them down, she did not manage to ask them.
34. Looking at the evidence as a whole, my view is that it was not entirely transparent to Mrs X that the appeal panel had already looked at the School’s prejudice argument on the papers and the School would not be setting out its case again at her hearing. Although the Chair gave her a chance to ask questions to the School, which her friend did on her behalf, there was no discussion about oversubscription and school capacity issues and so Mrs X felt she missed her chance to bring them up. There was no deadline given on the letters asking Mrs X to submit any questions or information she wanted to provide. If the Clerk had agreed to take her questions, as originally offered, the appeal panel would have been aware of them in advance.
35. On balance, I consider the concerns I have are enough to amount to fault. The Clerk’s notes of the hearing, the responses to my enquiries and the decision letter show the appeal panel did follow the two-stage decision-making process. However in my view the lack of clarity about the procedure and the lack of information about her child’s distance from the School placed Mrs X at a disadvantage in her appeal hearing. I do not know what impact this might have had on the appeal panel’s decision. But the uncertainty is an injustice to Mrs X.
36. Mrs X believes the speed of the decision indicates the appeal panel made up its mind beforehand. There is no evidence this is the case. The Clerk said the panel would issue its decision within five days of the final hearing and it did so. However I do not propose to look further into how and why the panel was able to issue decisions on the 32 appeals so quickly. This is because I have already found fault and any further finding on this point will not affect my recommendation.

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Agreed action

37. The School has agreed to my recommendation to offer Mrs X a fresh hearing of her appeal with a different appeal panel and Clerk.
38. Also, as long as the School continues to hold hearings under the temporary COVID-19 regulations in hybrid form, with stage 1 on the papers and stage 2 at individual hearings, it will make this process clear to appellants. It should explain that they will still have a chance to discuss the stage 1 issues at their own hearing.

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Final decision

39. I have found some fault in the arrangements for the appeal hearing and in the information provided to Mrs X. The School has agreed a suitable remedy and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman