Summary: There was no fault in how an independent appeal panel considered an appeal against the refusal of a school place. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mr B. Mr B complains an independent appeal panel has refused his appeal, against the Council’s decision to refuse his daughter a place at a particular school.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

4. I reviewed the full set of appeal paperwork.
5. I also shared a draft copy of this decision with each party for their comments.

Back to top

What I found

6. Mr B applied for his daughter (‘P’) to enter Year 3 in September 2021 at his preferred school. The Council (the admissions authority) refused this because there were no places available in that year group, but placed P on the waiting list and offered her a place at a different school instead.
7. In December 2021, Mr B submitted an appeal against the Council’s decision. His appeal was on the basis that P had previously attended the school, before he had decided to withdraw her because of concerns about COVID-19. P had two younger siblings who were both attending the school, and was familiar with the teachers and had friends there. P also had another older sibling, who was attending a different school, meaning her mother would now have to travel to three different schools to drop off and collect the children, which she did not have the time to do.
8. Mr B also explained P was currently being home educated, and that her mental health was suffering at being unable to attend the school.
9. Mr B’s appeal was considered by an independent appeal panel (IAP), using written submissions from each party, and decided unanimously to refuse it in March 2022. The IAP upheld the school’s case that year 3 was at capacity, and found that any prejudice to P by not gaining a place was outweighed by the prejudice to the school and its existing pupils by having to accommodate another child.
10. In April Mr B complained to the Ombudsman about the IAP’s decision.

Back to top

Legislative background

School admissions appeals

11. The School Admission Appeals Code 2012 (the Appeals Code) states admission authorities must ensure that appellants receive at least 10 school days’ notice of their appeal hearing.
12. The Appeals Code sets out a two-stage process for considering appeals. In the first stage the panel examines the decision to refuse admission and considers whether it was made properly. It also has to decide whether the admission of additional children would “prejudice the provision of efficient education or the efficient use of resources” for those already at the school.
13. If a panel decides that prejudice would be caused it goes on to the second stage. In this stage the panel must balance the prejudice to the school against the appellant’s case for the child to be admitted. It must decide whether the appellant’s case outweighs the prejudice.
14. The School Admissions (England) (Coronavirus) (Appeals Arrangements) Regulations 2020 (the 2020 regulations) temporarily amend the 2012 regulations due to COVID-19, and are due to be withdrawn in September 2022. The 2020 regulations say appeal hearings should be conducted by telephone or video conference. It also says that appellants must be given at least 14 calendar days’ written notice of an appeal hearing.
15. Where the relevant authority decides it is not practical to hold telephone or video hearings, the guidance says they can instead decide appeals based solely on written submissions.
16. The guidance provides an example of how a ‘written submissions only’ appeal may work. The example says the appeal panel should ‘meet’ (by phone or video), in advance of the substantive hearing, to discuss both parties’ submissions. It should decide whether to ask any questions of the school and/or the appellant, to elicit further information or clarify their respective positions. The panel should send these questions to the relevant parties and give them the opportunity to respond, before meeting again to make a decision on the appeal.
17. The guidance also says:

“The [example] process may be used to decide an appeal on the basis of written submissions only, however admission authorities and appeal panels must exercise their own judgement in the circumstances of any particular appeal being considered. This is to determine that the approach ensures the parties are able to fully present their case and allow the panel to make a decision which is fair and transparent.”

Back to top

Analysis

18. The Ombudsman’s role is to review authorities’ adherence to procedure. Where the authority in question – in this case, the IAP – has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally will not criticise it. We do not provide a further route of appeal against the panel’s decision, or make our own decisions about the merits of an appeal, and we cannot uphold a complaint simply because a person disagrees with the panel’s decision.
19. In the initial part of the appeal process, the IAP decided it would make its determination on a ‘written submissions’ only basis. I will return to this point presently. It then formulated questions both for Mr B and for the school, and considered the additional information it received as part of its deliberation.
20. At stage 1 of the appeal, the IAP considered the school’s case for not accepting another pupil above the published admission number of 30 for Year 3, which was based on teacher numbers and the size of its facilities. The IAP accepted the school’s case, and also that the admissions authority had correctly applied the admissions criteria.
21. Having done so, the IAP then moved on to stage 2 of the appeal, where it decided whether the prejudice to P in not being admitted to the school outweighed the prejudice to the school in admitting another pupil. It considered all the points raised by Mr B, but each of the three members of the panel concluded his case was not strong enough to justify requiring the school to admit another pupil, given the difficulty the school would then face in accommodating her. It therefore refused the appeal.
22. The IAP handled Mr B’s appeal precisely at it was supposed to and gave proper consideration to the supporting information he submitted. The IAP was entitled to make the decision it did and there is no evidence of fault here.
23. In his complaint to the Ombudsman, Mr B made several specific points, which I will address here.
24. First, Mr B alleges the school did not give a “valid reason” for rejecting P’s application. However, the school’s reason for not accepting her was that Year 3 was full. This is a valid reason and was considered, and upheld, by the IAP during the appeal process.
25. Second, Mr B says he asked why the school accepted other children after P but did not receive a response.
26. I have not seen any correspondence where Mr B asked this question of the school. Either way, each application and each appeal are considered on a case-by-case basis, and so the fact other children may have successfully applied to the school does not mean there was fault in how P’s application was dealt with.
27. Third, Mr B says the school “lied” about P’s position on the waiting list and this was not checked by the IAP. However, a child’s position on the waiting list is not relevant to the appeal process and this is not something the IAP would need to check.
28. Finally, Mr B says the IAP only considered existing students’ mental health and not P’s. This is not accurate – the IAP did not consider existing students’ mental health, it considered how accepting another pupil might affect their education. This is what the IAP was required to do.
29. Although I am satisfied there is no fault in how the IAP considered the specifics of Mr B’s appeal, I did make enquiries with the Council into how the panel had decided to hold a ‘written submissions only’ hearing.
30. The Coronavirus regulations introduced in 2020 allow councils to replace traditional face-to-face appeal hearings with telephone hearings, or ‘virtual’ hearings using video conferencing technology. The regulations also allow hearings to be held on written submissions only, where there are practical obstacles to using technology.
31. In response to my enquiries, the Council said (in summary):

• there had been a large volume of appeals at the time, and it did not have the resources or equipment to facilitate telephone or virtual for all of them;
• it had had concerns about the security and reliability of video conferencing software;
• some IAP members lived in rural areas and had experienced difficulty with maintaining a stable internet connection where they had attempted to meet this way;
• some appellant parents also lived in rural areas and would likely have the same problem; and
• some parents would not have the equipment to participate in a virtual hearing, placing them at a disadvantage compared to others.

32. The Council explained it had consulted with its IAP members about this in 2021 and the majority agreed appeals should be ‘written submissions only’. In the interests of practicality and fairness, it had therefore decided to apply this across the board, with IAPs noting during each individual appeal they were satisfied with the arrangements. The Council said IAPs ensured they formulated and sent questions to parents, where necessary to clarify their written submissions, and that it included information and advice about the process on its website and in letters, and offered support to any parents who needed help, such as translation.
33. The Council also noted it had now purchased a number of electronic devices for IAP members and given them training in how to use them, which had allowed it to start holding virtual appeals in May 2022.
34. Again, the decision to hold ‘written submissions only’ appeals was one for the Council to make. I am satisfied it gave proper consideration to the criteria set down in the regulations and has fully explained why it made the decision it did.

Back to top

Final decision

35. I have completed my investigation with a finding of no fault.

Back to top

Investigator's decision on behalf of the Ombudsman