Summary: Mrs X complained about the handling of her daughter's school admission appeal. We do not find there was unreasonable delay in holding the appeal. But we find that the appeal panel was at fault in failing to consider the appeal properly and give adequate reasons for its decision. The Council has agreed to offer a fresh hearing.

The complaint

1. Mrs X complained about the handling of her daughter's school admission appeal. She complained that:
1. there was unreasonable delay in holding the appeal hearing, which caused her daughter significant distress; and
2. the appeal panel did not properly consider her evidence or her reasons for wanting her daughter to attend the school.

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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 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 discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries, including the appeal papers and the Clerk’s notes of the appeal hearing. 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

5. 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.
6. 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.

7. If the panel finds there would be prejudice, the panel must then move to the second stage and consider each appellant’s individual arguments. It must take account of the appellant’s reasons for wanting a place at the preferred school, including what that school can offer the child that the allocated or other schools cannot. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
8. The panel must issue a written decision including the reasons for the decision. It must ensure the parties can easily understand the basis on which the decision was made. The decision letter must contain a summary of relevant factors that the parties raised and the panel considered. It must also give clear reasons for the panel’s decision, including how and why it decided any issues of fact or law. (School Admission Appeals Code paragraphs 2.24-2.25)

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'
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 temporary regulations also set out revised deadlines and timescales for appeals. Normally appeals must be heard within 40 school days of the deadline for submitting appeals. Under the temporary rules, hearings should take place and cases should be decided “as soon as reasonably practicable”. The decision letter should be sent within seven days of the hearing wherever possible.

What happened

12. Mrs X applied for a secondary school place for her daughter, D, at three schools. All three applications were unsuccessful and D was offered a place at a fourth school, School 4. Mrs X appealed for her second preference school, School 2. School 2 is a community school and so the Council is the admission authority.
13. There were over 600 applications for 270 places at School 2. D’s application was considered in the last of six categories in the admission criteria, as a pupil living outside the School’s geographical priority area without a sibling at the School. The last pupil offered a place in this category lives closer to School 2 than she does.
14. Mrs X submitted her appeal on 10 March 2021. The deadline was 26 March. The first stage hearing took place on 30 June as a group hearing by video conference. Mrs X’s second stage individual appeal was heard by teleconference the following day.
15. Mrs X gave her reasons for wanting a place for D at School 2. She explained D had been bullied at her primary school and had had to change school. None of the children who had bullied D would be attending School 2. She said D suffered from anxiety and panic attacks and did not like to be alone. She said the family’s transport arrangements and the facilities at Schools 2 and 4 would mean D would have to be left alone for long periods if she went to School 4. She explained the logistics of the travel arrangements. Mrs X also referred to the benefits to D’s mental health of studying music, and the better opportunities for this at School 2 than School 4.
16. Mrs X provided letters of support including from her MP, D’s primary school and her GP. The GP confirmed Mrs X had consulted the surgery about D’s anxiety, which Mrs X reported had increased since being allocated a secondary school place.
17. The appeal papers included copies of Mrs X’s original application for school places. On that form she explained that she did not want D to attend School 4 because siblings of the children who had bullied her went there.
18. The appeal was unsuccessful, by a majority decision of two to one against Mrs X. The appeal panel issued the decision letter on 6 July 2021. It said 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 detrimental to the education of children at the School. It did not consider D’s case was strong enough to outweigh the prejudice that would be caused to the School.
19. Mrs X complained to the Ombudsman about delay in holding the appeal and about the reasons for the decision. She said school places had been worked out incorrectly for School 2 and there were seven spare places. She also said she had withdrawn D from a test for a grammar school place and later found out that children who did not pass the test were able to change their school preferences. She said this meant children had obtained places at schools she had applied for. She felt this was unfair as she did not know she could change her school preferences.

Analysis – was there fault causing injustice?

20. Mrs X complained about the length of time she had to wait for a hearing and said the delay caused D anxiety and distress. The Council says that under normal circumstances, with an appeal deadline of 26 March all on-time appeals should be heard by 25 June. By my calculation, 40 school days would take it closer to 11 June. Either way, the delay was a maximum of three weeks.
21. The Council says it had over 2000 appeals to schedule for more than 600 schools over the summer. It says the extra delay was due to the high volume of appeals, availability of clerks and panel members, and the fact that appeals had to be held virtually because of COVID-19 restrictions. The Council says it is satisfied the hearing took place as soon as possible. The decision letter was issued within a week of the hearing.
22. I recognise this was a time of great anxiety for D. However given the extra leeway allowed by the temporary rules and the explanation the Council has given, I would not criticise the Council for delay in arranging the hearing.
23. I have also looked at the way the appeal panel reached and explained its decision. Looking at the Clerk’s notes of the hearing and the panel’s decision-making, as well as the decision letter, I have seen no evidence that the panel found there were any ‘spare places’ at School 2. The Council says the Clerk has no recollection of this issue being mentioned at any point in the hearing. It has confirmed that at the time of the appeal there were no vacancies in any year group. So I cannot say the appeal panel was at fault in the way it dealt with this matter.
24. Nor have I seen any evidence that the issue of the change of preferences for pupils who failed the grammar school exam affected D’s application or appeal. The appeal panel considered this matter and without evidence that D’s chances of getting a place at School 2 were affected, I cannot say the panel was at fault.
25. However I do not consider that the appeal panel’s decision letter adequately explains the reasons for its decision. The letter sets out Mrs X’s case and the Council’s case in detail. But when it starts to explain the reasons why it considers Mrs X’s case did not outweigh the Council’s, the further detail given is essentially a repeat of its findings on why admitting another pupil would cause prejudice to the School. The only reference to D’s own case is that it says the professional supporting documentary evidence submitted did not demonstrate School 2 was the only school that could cater for D’s needs, and that she had been offered a place at another school close to her home.
26. There is no reasoning given in the notes of the decision-making or the decision letter for why the panel rejected Mrs X’s arguments, and no mention of the connection of pupils at School 4 to those who had bullied D previously.
27. Also there is no record in the Clerk’s notes of the decision-making explaining why one panel member considered the appeal should be allowed.
28. I also have concerns about the consistency of the appeal panel’s decision-making. I have not seen the decision letters for other cases in the same set of appeal hearings, but I have seen the Clerk’s notes of the decisions made. I cannot provide details of these decisions as it would breach confidentiality. However I note there were cases where appeals were allowed where the record of the decision-making shows few points made about why the appellant wanted a place at the School, and none about why School 2 was the only school catering for the child’s needs. In some cases the notes also say the appellant did not appear at the hearing to ‘amplify their case’ and ‘no further information’ was provided.
29. Based on the evidence I have seen I do not consider the appeal panel met the requirement in the Code to give clear reasons for its decision in Mrs X’s case. So I cannot be satisfied it reached the decision properly. I do not know what the outcome would have been if the panel had considered the matter properly and given clear reasons for rejecting Mrs X’s arguments. But the uncertainty is an injustice to Mrs X.

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Agreed action

30. To remedy the injustice caused the Council has agreed to my recommendation to offer Mrs X a fresh appeal hearing with a different appeal panel and Clerk.

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Final decision

31. I have found that the appeal panel was at fault in the way it considered Mrs X’s appeal and explained its decision. The Council’s agreement to offer a fresh hearing of the appeal is a suitable remedy and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman