Summary: Mrs B complained her appeal for a place for her daughter at School 1 was unsuccessful. We found fault with the Council for failing to record its decision not to hold appeals by telephone or video conference. The Council will remind relevant school admission appeal officers of the importance of recording procedural decisions to prevent causing injustice in the future.

The complaint

1. Mrs B complained her appeal for a place for her daughter at School 1 was unsuccessful. Mrs B said she would find it difficult to get her daughter to School 2 where she was offered a place.

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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. 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

4. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
5. Mrs B and the Council had the opportunity to comment on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and Guidance

6. Statutory guidance about school admissions and appeals can be found in The School Admissions Code and School Admission Appeals Code. Both are published by the Department for Education.
7. Parents have the right to appeal an admission authority’s decision not to offer their child a school place.
8. Appeal hearings must be held in private and conducted in the presence of all panel members and parties. Appeal panels must act according to the principles of natural justice.
9. A clerk supports the appeal panel. Parents can submit information in support of their appeal. The clerk must send all papers needed for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority.
10. The admission authority must provide a presenting officer at the hearing to explain the decision not to admit the child and to answer questions from the appellant and panel.
11. Appeal panels must allow appellants the opportunity to appear in person and present their case.
12. Panels must follow a two-stage decision making process.
13. Stage 1: the panel examines the decision to refuse admission. The panel must consider whether:
• admissions arrangements complied with the mandatory requirements set out in the School Admissions Code;
• admission arrangements were applied correctly; and if
• admission of additional children would prejudice the provision of efficient education or the efficient use of resources.
14. 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 of the process.
15. Stage 2: balancing the arguments. The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted.
16. 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 concerned.
17. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
18. The appeal panel must write to the appellant, the admission authority and the council with its decision and the reasons for it.

COVID-19 amendments

19. In April 2020, the government temporarily amended the School Admissions Appeals Code (the Appeals Code) and the School Admissions (Appeals Arrangements) (England) Regulations 2012 (the 2012 regulations) because of COVID-19. These amendments are in force until September 2022.
20. Outlined below are key points from the School Admissions Code and School Admissions Appeals Code. Where the emergency regulations introduced a temporary change to the admission appeal rules, it is identified.
21. Panels must allow appellants the opportunity to appear in person and present their case. The amended regulations state that where face-to-face hearings cannot take place, they should be conducted by telephone or video conference. The appeal panel can decide to hold the hearing remotely if they are satisfied:
• the parties will be able to present their case in full;
• each participant has access to video or telephone facilities allowing them to engage in the hearing throughout; and
• the appeal hearing can be heard fairly and transparently.
22. Where this is not possible, appeals can be conducted on written submissions. For the panel to decide which is fair and transparent, they must ensure the parties are able to fully present their case by way of written submissions. The emergency guidance suggests in these circumstances the admissions authority follow this process:
• The clerk should contact the appellant and presenting officer, in line with the amended timetable. The presenting officer should be provided with a copy of the appeal lodged and asked to submit the admission authority’s arguments and evidence; the appellant should be given the chance to submit additional 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 solicit further relevant information. They should bear in mind that appellants may be less familiar with the kind of information and arguments that are required and may have less experience preparing written submissions.
• The clerk should send the questions and all the papers to each of the parties.
• 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 told any information or evidence not submitted by the relevant deadline might not be considered in the appeal panel’s decision.
• 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.
23. The amended regulations state that decision letters should be sent within seven calendar days of the hearing or, in the case of an appeal conducted based on written submissions only, within seven calendar days of the appeal panel making their decision, wherever possible.
24. 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

25. This chronology includes key events in this case and does not cover everything that happened.
26. When the government introduced temporary changes to the school admissions appeal arrangements in April 2020, the Council reviewed its appeal arrangements and decided to hold them by written submissions. The Council recorded and justified its decision making. In January 2021, the government extended the temporary changes.
27. Mrs B applied for a place for her daughter C at School 1 for Year 3. The Admissions Authority gave C a place at School 2. Both schools are less than two miles from C’s home. The Council is the Admissions Authority.
28. Mrs B made an appeal for a place at School 1. C’s appeal was one of 13. In her appeal, she advised C lived in the school catchment area and attended School 1’s infant school. C was an in-catchment linked child. She explained she did not drive, had a medical problem which impacted her ability to walk and School 2 was further away than School 1. Mrs B said she may need to give up her job to get C to School 2.
29. The Council told Mrs B the appeal would be on 21 June 2021. It said the panel would consider all appeals on written submissions because panel members did not have the means to attend hearings using video technology. It told her she had until the 6 June to submit questions for the Admission Authority.
30. The Council sent her the final pack of paperwork for the appeal at the end of May 2021. This included:
• The Admission Authority's submission about its application of the admissions policy.
• Her written grounds of appeal and associated paperwork.
• Details of the appeal panel.
31. The Admission Authority's submission advised School 1’s published admission number (PAN) was 90 plus five children with an Education, Health and Care (EHCP) plan admitted to specialist Special Educational Needs provision. It offered 90 places plus four to children with an EHCP. It advised further admissions would have implications on overall class management as well as adding to overcrowding and prejudice efficient education and the efficient use of resources. The Admission Authority advised C would not be eligible for assistance with school transport to School 2.
32. Questions raised by Mrs B, the Admission Authority and the panel were disseminated. The Admission Authority confirmed some in-catchment linked children did not get a place at School 1. It advised School 1 was 29 children above its net capacity. Mrs B gave the panel information about her medical problem.
33. The panel met virtually using Microsoft Teams on 21 June 2021. The panel decided admitting a further 13 children would cause prejudice to School 1.
34. The panel considered Mrs B’s case, including:
• difficulties Mrs B would have getting C to a school further away than School 1;
• C was socially anxious, and her close friends were moving to School 1; and,
• written information she provided.
35. It decided:
• the admission arrangements complied with the School Admissions Code and Part 3 of the School Standards and Framework Act 1998; and
• the admission arrangements had been correctly and impartially applied.
36. The appeal panel decided admitting 13 further children would prejudice efficient education and the efficient use of resources at School 1. The panel then considered the prejudice to the school of admitting each child against each of the appellant’s cases. The panel decided the prejudice to School 1 outweighed C’s case. The panel considered four of the 13 appellants cases outweighed the prejudice to the school and their appeals were successful.
37. The Council sent Mrs B the result of her appeal on 28 June 2021. It explained the procedure and summarised the factors and evidence the panel considered and the decisions it came to. It advised School 1 was heavily oversubscribed and not all in-catchment applicants, including some attending a linked school, got places. It explained why School 1 could not accommodate an extra Year 3 class. It advised, the appeal panel decided not to allow her appeal because it did not consider C’s case outweighed the degree of prejudice the school would suffer, because of admission.

Response to enquiries

38. The Council said it reviewed its appeal procedure in response to the COVID-19 restrictions in April 2020 and carried out a light touch review at the beginning of 2021. The Council said not all panel members had access to electronic means to engage in a virtual hearing or a private room to work from. It advised it did not have the resources to provide panel members with laptops. It decided it would not be fair, or logistically possible to offer some, but not all, parents a remote hearing. It was also not confident virtual appeals could be heard fairly and transparently. The Council did not record its decision making.
39. The Council advised it administers more than 600 appeals each year and resources were strained because of the impact of COVID-19, it was necessary to hold appeals by written submissions.
40. In July 2021, the Council decided to resume in-person hearings from September 2021.

Analysis

41. In January 2021, the temporary changes to the school admission appeal arrangements were extended. At this point, the Council should have reviewed its appeal arrangements to consider whether it could hold in-person appeals or appeals by video or telephone conferencing. The Council said it reviewed its appeal arrangements in April 2021 but did not record its decision making, this was fault. Failure to keep records of procedural decision making was poor administrative practice. Although this did not cause Mrs B or C injustice, I have recommended action to prevent future injustice to others.
42. Given the volume of appeals the Council had to administer and the impact of COVID-19, I found no fault with the Council’s decision to hold appeals by written submissions.
43. The panel decided admitting a further 13 children would cause prejudice to School 1. This was the wrong test. The panel should have decided whether the school could admit any additional children without causing prejudice. The test was not whether admitting all 13 appellants would cause prejudice. Using the wrong test was fault. However, I do not consider this impacted on the result of the appeal for C. Again, although this did not cause Mrs B or C injustice, I have recommended action to prevent future injustice to others.
44. It is positive the Council decided to resume in-person hearings from September 2021.

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Agreed action

45. Within one month of the final decision, the Council will:
• remind relevant school admission appeal officers of the importance of recording procedural decisions.
• issue guidance to panel members that stage two of the appeals procedure requires them to decide whether admitting any further children would prejudice the provision of efficient education or the efficient use of resources.
46. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

47. I have completed my investigation and uphold Mrs B’s complaint. This fault did not cause Mrs B injustice. The Council has agreed to make service improvements to prevent causing injustice in the future.

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Investigator's decision on behalf of the Ombudsman