Summary: Ms X complained that she did not receive any notice of the hearing date for her appeal for a place for her daughter at the school. She says this meant she missed the hearing which took place by conference call. We find that the school did send her a notice of the date and time of the hearing. So although Ms X did not receive a letter with further details about the arrangements, she did not miss the hearing because of fault by the school.

The complaint

1. Ms X complained that she did not receive any notice of the hearing date for her appeal for a place for her daughter at the school. This meant she missed the hearing and did not have a chance to present her case in person.

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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 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)
3. 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

4. I discussed the complaint with Ms X and considered the information she provided. I considered the information the school provided in response to my enquiries. I considered relevant law and guidance on school admission appeals.
5. Ms X and the school 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

6. 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.
7. 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 admission arrangements comply with the law;
• the admission arrangements were properly applied to the case;
• admitting another child would prejudice the education of others.

8. 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

9. 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').
10. The temporary regulations say that where face-to-face appeals cannot take place safely, hearings can be conducted by telephone or video conference.
11. 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.
12. The temporary regulations set out revised deadlines and timescales for appeals. Appellants must be given at least 14 calendar days’ written notice of an appeal hearing (although they may waive their right to this in writing).
13. Admission authorities may set new or revised reasonable deadlines relating to the parties submitting evidence and for the clerk to send the relevant appeal papers to the appeal panel and parties. These deadlines may take account of the circumstances of each appeal case. The Guidance recommends notifying all parties of deadlines as soon as is reasonably possible.

What happened

14. Ms X applied for a place for her daughter, R, in year 7 at St Paul’s Catholic School. She already had an older child attending the school. There were nearly 700 more applications than there were places available. The first six admission criteria are for baptised Catholic children. The eighth is for pupils with a sibling at the school. As R is not a baptised Catholic, she fell into category 8. All places were filled from within the first four categories and so R did not get a place.
15. Ms X appealed in early 2021. She ticked the box on the form to say she wished to attend the hearing. She explained her reasons for wanting a place for R. These concerned:
• R’s state of anxiety since hearing the new she had not got a place,
• the support she could give to her sister with her medical condition if she went to the same school,
• the difficulties it would present for Ms X having all her children at different schools,
• the children’s Catholic upbringing.
16. The declaration Ms X had to sign on the appeal form confirmed:

“I understand that if I do not attend the hearing and I do not send a representative my appeal will be heard in my absence using the information I have supplied on this form along with any other information I have sent to the School Appeals Service before my hearing date.”

17. Surrey County Council runs and manages admission appeals on behalf of the school. The Council’s Appeals Team has provided a copy of an email sent to Ms X on 26 April 2021 with information about the appeal. It explained it had decided to run appeals as audio appeals using a conference call system. But where there were several appeals for the same school, as in this case, the Appeal Panel would hear stage one on paper and stage two by conference call.
18. The email gave the following details about the appeal arrangements.
• The deadline for sending in questions on the school’s general case was 10 May. The Appeals Team would collate all the questions from the parents and the Appeal Panel and send them to the school for a response. It would then send the combined questions and answers to all parties. The Appeal Panel would use this information to make a decision at stage one.
• Ms X’s individual second stage hearing would take place on 27 May. It gave the time. She would be sent details, including the telephone number and codes needed nearer the date of the hearing.
• If not already enclosed, the papers for her appeal including the school’s case would be sent to all parties before the hearing. She should read this carefully and make a note of any questions she may want to ask.
• Before her hearing she should read the attached guidelines for parents on audio-only appeal hearings and on the appeal hearing procedure.
• She should check the appeal papers when she received them and contact the Appeals Team as soon as possible if she thought there was anything missing.
• It gave a deadline of 14 May for submitting further evidence.
19. At the end of the email there were the following warnings in bold type:
• “If you do not receive your appeal papers in advance in order to respond as above, please contact us as soon as possible.”
• “Please note that if you do not join the appeal hearing audio conference call and have not notified us, your appeal will go ahead in your absence and be decided on the written information submitted.”
• “If you are unable to join your appeal hearing at the notified time ….please contact me as soon as possible…to discuss this”. This should be by telephone or email.
20. I am not clear whether the Appeals Team actually sent the appeal papers and guidance notes with this email.
21. Ms X replied by email the following day asking whether the Appeal Team had received two supporting letters she had sent in and whether the second appeal would be “on phone or … zoom”.
22. The Council says it sent the appeal papers to Ms X on 27 April with a covering letter including a conference call guide and details of the procedure for the day. The letter gave the relevant telephone number and code for joining the conference call. The Council says it sent this by first class post. Ms X says she did not receive it.
23. On 18 May the Appeals Team sent an email to all parents attaching a ‘Q&A’ document with questions to the school and its responses. It said the Appeal Panel would consider this information in deciding stage one of the appeal. If parents had any questions they should contact the Appeals Team.
24. The hearing took place on 27 May. Ms X did not join the conference call. The clerk’s typed notes show the appeal started at the scheduled time, the Panel waited for five minutes, and when Ms X did not call in it proceeded to deal with the case.
25. The appeal was unsuccessful. The Appeals Team sent Ms X a letter by post on 27 May telling her the result. The letter said she would receive a more detailed letter shortly setting out the reasons for the decision. There would be a delay in sending this out because of the national COVID-19 situation.
26. Ms X received the detailed decision letter through the post on 10 June.
27. She contacted the Appeals Team to say she did not know about the hearing. Ms X says the Appeals Team told her it had sent her a letter through the post about the arrangements. When she said she had not received it, she says the Council suggested she contact Royal Mail if she was having problems with her post, but there was nothing it could do now as her appeal had been heard.
28. Following the conversation, the Appeals Team sent Ms X an email on 14 June referring to its previous email of 26 April notifying her of the date and time of her appeal. It forwarded her a copy of that email and Ms X’s reply the following day. I have seen copies of this correspondence.

Analysis

29. Ms X complained to the Ombudsman that she had never received the letter from the Appeals Team telling her about the stage two hearing. She says she did not hear anything more from the school or the Appeals Team after she submitted her appeal. She says she did not receive any invitation to supply extra evidence or questions, although she does remember receiving one email from the Appeals Team.
30. Ms X did not receive the letter of 27 April. The Council says it sent it by first class post. It sent the decision letters by the same method, which Ms X did receive. I do not know why Ms X did not receive the 27 April letter. But I do not have enough evidence to say it was a result of fault by the school (through the Council), in failing to send it out. There were problems with the post across the country at the time for reasons related to the COVID-19 pandemic. Given this it might have been good practice to send the information by email at the same time as well. But I could not say the failure to do so amounts to fault. There is no requirement to send the information by any particular method.
31. In any event there is evidence that Ms X received the email on 26 April giving her the date and time of the hearing. The copy I have seen shows it was sent to Ms X’s email address. Her email the following day used the same subject heading as in the email from the Appeals Team, indicating it was a direct response. So the School met the requirement in the Appeals Code to give Ms X at least 14 days’ notice of the hearing. The email explained what to do if she did not receive the expected information. It also explained what would happen if she could not join the conference call at the scheduled date and time. I consider it reasonable to expect that if Ms X had not received the details for how to join the call she would have contacted the Appeals Team to find out what to do. She had received warnings that if she did not do so the hearing would go ahead without her.
32. It is very unfortunate that Ms X did not attend the hearing. But in the circumstances I could not say this was primarily a result of any fault by the school.
33. I have also looked at how the Appeal Panel reached its decision. The detailed decision letter shows the Panel followed the two-stage decision-making process properly. It found the admission arrangements were lawful and had been correctly applied in R’s case. It found the school had made out its case that admitting further pupils would be detrimental to the education of children at the school and it explained why. The decision letter set out the list of points Ms X made in her written appeal and referred to the further evidence she provided. It explained why the Panel did not consider this evidence strong enough to outweigh the prejudice to the school. Based on the evidence I have seen I do not find fault in the Appeal Panel’s decision-making and so I cannot question the decision it reached.

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Final decision

34. Based on the evidence I have seen I have found that Ms X was notified of the date of the hearing. The fact that she missed the hearing was not the result of fault by the school. So I have no grounds to recommend a fresh hearing. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman