Summary: Mrs X complains that an appeal panel did not properly consider her reasons for wanting a place at a school for her son. There is no fault in the appeal panel’s decision to hold Mrs X’s appeal by written submission or in its consideration of her appeal. There is fault in the panel’s decision letter as it did not give sufficient information to Mrs X for her to be satisfied the panel had considered her reasons for her appeal and for her to understand the basis of its decision. This did not cause sufficient injustice to Mrs X to warrant a remedy from the Council.

The complaint

1. Mrs X complains that an appeal panel did not properly consider her reasons for wanting a place for her son at a high school. As a result, Mrs X considers she did not receive a fair hearing.

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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. 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 Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

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What I found

Law and administration

COVID-19 amendments

6. In April 2020, the government temporarily amended the School Admission Appeals Code (the Appeals Code) and the School Admissions (Appeals Arrangements) (England) Regulations 2012 (the 2012 regulations) because of COVID-19. Amendments are in force until September 2022.
7. 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.
8. 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 can fully present their case by 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 ask for further relevant information. They should bear in mind that appellants may be less familiar with the 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.

Appeal Procedure

9. 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.

10. 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.
11. 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.
12. 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 easily comprehensible, 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

13. Mrs X applied for a place at a high school for her son, Y. On the application form she placed school 1 as their first preference and school 3 as their third choice. The Council allocated a place for Y at school 3.
14. Mrs X submitted an appeal against the Council’s decision not to allocate a place for Y at school 1. In her appeal Mrs X said they had been penalised for putting school first as other people had been offered the school as a second preference. She also said school 3 was unsuitable due to distance and their family’s circumstances.
15. The Council sent a questionnaire to all appellants for the school 1 to establish whether the appellants would be able to join a remote hearing. A number of appellants reported they were not able to attend a remote hearing.
16. The clerk to the appeal panel reported the results of the questionnaire to the three members of the panel. She asked the panel to decide if the hearings should be held remotely, by written submission or by considering stage one of the appeals by written submission and stage two by remote hearings. Emails from two of the panel members record they considered the fairest approach would be to hold the appeals by written submission. This was to ensure all appellants could participate. The third panel member also considered the appeals should be held by written submission. The Council does not have a record of this panel member’s decision as it was given by telephone.
17. The Council wrote to Mrs X to advise the appeal would be heard by written submissions to ensure all cases are treated fairly and equally. It advised Mrs X of the procedure to be followed including how she could submit questions of the admission authority’s case. The Council’s records show the panel also asked questions of Mrs X and of the admission authority, including about Mrs X’s concerns about how her ranking of her preferred schools affected the school offered. The answers to these questions were circulated to Mrs X and the panel. In answering the questions from the panel, Mrs X raised her dissatisfaction about the appeal being considered by written submissions.
18. The panel made its decision on Mrs X’s appeal. The clerk’s record of the panel’s decision making notes it was satisfied the admission arrangements complied with the School Admissions Code and that the arrangements had been properly applied to Y. The notes also record the panel considered the admission authority had proved its case that the admission of another pupil would prejudice the efficient education and use of resources at the school.
19. The panel then considered whether Mrs X’s reasons outweighed the prejudice to the school of admitting another pupil. The clerk’s notes show the panel considered the points raised by Mrs X. The notes also record the panel considered the reasons were not sufficiently compelling to override the prejudice to the school. The panel refused Mrs X’s appeal.
20. The clerk to the panel notified Mrs X of the panel’s decision by letter. The letter explained the panel’s reasons why it considered the admission arrangements complied with the school admissions code. It also explained why the panel was satisfied the admission authority had properly applied the arrangements for Y. The letter then explained why the panel were satisfied the admission of another pupil would prejudice the efficient education and use of resources at the school. The decision letter also stated that the panel fully considered the issues Mrs X put forward for the appeal but did not feel those these were compelling enough to outweigh prejudice to the school.
21. Mrs X complained to the Ombudsman as she considered the admission authority’s decision not to allocate a place at school 1 was unfair. She also considered the appeal panel did not properly consider her reasons for wanting a place at the school and failed to explain why her appeal was refused. I understand Y is now settled in another school.

Analysis

22. There is no evidence of fault in how the appeal panel made its decision to hold the appeals by written submission. The panel made the decision after considering the outcome of the questionnaires and it was satisfied the conditions for holding the appeals remotely could not be met. The Council should have ensured it had a record of all the panel members’ decisions on the method for considering the appeal but this did not flaw its decision to hold them by written submissions.
23. There is no fault in how the appeal panel considered Mrs X’s appeal. The clerk’s notes show the panel considered the appropriate tests at stage one. This included the panel satisfying itself as to whether the admission arrangements were properly applied to Y. The clerk’s notes also show the panel considered Mrs X’s reasons for wanting a place at the school when making its decision that these did not outweigh prejudice to the school.
24. The School Admissions Appeals Code provides the panel’s decision letter be easily comprehensible to the parties can understand the basis on which the decision was made. It must also contain a summary of the relevant factors raised by the parties and considered by the panel. The panel’s decision letter gave a detailed explanation of the factors it considered and reasons for its decisions at stage one of the appeal. However, it did not do the same at stage two. It did not summarise the reasons put forward by Mrs X for wanting a place at the school or explain why her reasons were not compelling enough. As a result, Mrs X considered the panel did not consider her reasons for wanting a place at the school and did not understand the basis for its decision. I do not consider this fault caused significant injustice to warrant a remedy from the Council. But I have recommended action to prevent injustice to future appellants.

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Agreed action

25. That the Council:
1. by training or other means, reminds clerks to ensure decision letters meet the requirements of the School Admission Appeals Code and contain sufficient information for appellants to understand the basis of the panel’s decision.
2. keeps a proper record of an appeal panel members’ decisions on the method for holding appeals.
26. The Council should take this action within two months of my final decision.

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Final decision

27. There is no fault in the appeal panel’s decision to hold Mrs X’s appeal by written submission or in its consideration of her appeal. There is fault in the panel’s decision letter as it did not give sufficient information to Mrs X for her to be satisfied the panel had considered her reasons for her appeal and for her to understand the basis of its decision.

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Investigator's decision on behalf of the Ombudsman