Summary: Mrs X complains that the appeal panel which dealt with her appeal for a grammar school place for her daughter ignored evidence she provided. Also she says because it was a paper-based appeal she did not have a chance to point this out to the panel. We do not find the Council at fault in deciding to continue holding appeals on written submissions only. We consider there was fault in the panel’s decision letter as it did not explain its reasoning fully. The Council has offered to write to Mrs X with a further explanation.

The complaint

1. Mrs X complains that the appeal panel which dealt with her appeal for a grammar school place for her daughter did not consider her evidence properly. The decision letter said she had not provided certain evidence when in fact she had. She also says because the panel decided the appeal on written submissions only, she did not get a chance to point this out to the panel.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making by a council or an admission appeal panel, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided, including the appeal papers and clerk’s notes of the hearing. I considered relevant law and guidance on admission appeals.
6. Mrs X and the organisation 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

Relevant law and guidance

School admission appeals – arrangements for appeal hearings

7. Statutory guidance about school admissions and appeals is in the School Admissions Code and School Admission Appeals Code, published by the Department for Education.
8. In 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 are due to remain 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’.
9. I outline below key points from the School Admissions Code and School Admission Appeals Code. I have identified where the emergency regulations introduced a temporary change to the admission appeal rules.
10. Parents and carers have the right to appeal an admission authority’s decision not to offer their child a school place. An independent appeal panel decides the appeal.
11. A clerk supports the appeal panel. Parents can send information in support of their appeal. The clerk must send all papers required for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority.
12. The School Admission Appeals Code says appeal panels must allow appellants the opportunity to appear in person and present their case. The emergency guidance in 2020 stated that face-to-face hearings should not take place, and appellants should be offered a hearing by telephone or video conference wherever possible.
13. The appeal panel could decide to hold the hearing remotely if it was satisfied that:
• the parties would be able to present their cases fully;
• each participant had access to video or telephone facilities allowing them to engage in the hearing; and
• the appeal hearing could be heard fairly and transparently in this way.
14. Where this was not possible, appeals could be conducted entirely based on written submissions. The guidance suggested a process for deciding appeals on this basis but said admission authorities and panels had to exercise their own judgement in each appeal to ensure parties were able to fully present their case.
15. For the panel to make a decision which is fair and transparent, they had to ensure the parties could fully present their case by written submissions. The emergency guidance suggested the following process:
• 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.
• 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 set out in the Appeals Code.
16. In September 2021 the government amended the guidance to say;

“Face-to-face appeal hearings can now take place where the admission authority considers it is safe to do so, unless a participant needs to self-isolate after a positive test or government guidelines indicate it is not safe to do so.”

“In line with the temporary regulations, where a face-to-face appeal is not possible for a reason related to the incidence or transmission of COVID-19, the appellant should be offered a hearing by telephone or video conference wherever possible.”

17. The guidance said admission authorities would need to review any arrangements they had put in place to ensure they comply with the temporary regulations.
18. The same conditions for deciding to hold remote hearings and the suggested process for written submission appeals applied as in the original guidance.
19. The guidance accompanying the emergency regulations urged admission authorities to settle appeals lodged in the main admissions round before the start of the September term wherever possible.

School admission appeals – decision-making

20. 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 admissions arrangements complied with the requirements set out in the School Admissions Code;
• the admission arrangements were applied correctly; and
• the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.
21. 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: balancing the arguments. The panel must balance the prejudice to the school against each appellant’s case for their child to be admitted.
22. In multiple appeals, the panel must not compare the individual cases when deciding whether an appellant’s case outweighs the prejudice to the school . However, where the panel finds there are more cases which outweigh prejudice than the school can admit, it must then compare the cases and uphold those with the strongest case for admission. Where a certain number of children could be admitted without causing prejudice, the panel must uphold the appeals of at least that number of children.
23. The appeal panel must write to the appellant with its decision and the reasons for it. The decision letter must be easy to understand and must 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.

Admission to grammar school

24. Children who wish to be considered for entrance to grammar school sit the ‘Kent Test’. Children receive three standardised scores – one for English, one for maths and one for reasoning, and a total score. For admission to grammar school in 2022, children needed a total score of 332 or more, with a score of 109 or more in each of the three tests. Approximately 20% of children are identified as suitable for grammar school through the test.
25. A further 5% of children are identified as suitable for grammar school through the Head Teacher Assessment Panel. The panel considers children who did not achieve the required score in the Kent Test but whose primary school believes they are of grammar school ability. Information provided by the Council suggests there may be a range of reasons for unrepresentative scores in the test, including extended personal illness, social or emotional problems affecting learning in the past year and having English as an additional language. A child’s school can ask for the child to be assessed by the panel and must provide evidence to support their case, including history of scores from standardised tests and relevant schoolwork.
26. The school in this case is a grammar school and admits children who reach the required scores in the Kent Test. The School Admission Appeals Code says panels may be asked to consider an appeal where the appellant believes the child did not perform at their best on the day of the test. In those cases, the panel must only uphold the appeal if:
• there is evidence to show the child is of the required academic standard. This may be in the form of school reports of test results or a supporting letter from their current school; and
• the appellant’s arguments outweigh the admission authority’s case that admitting further children would cause prejudice.

Council’s approach to appeals

27. The Council reviewed its approach to appeals after the government announced in February 2021 that it would be extending the amended arrangements for holding appeals. The Council considered the following factors:
• Almost a third of panel members had declined to participate in appeals in the 2020-2021 admissions round and it was concerned this could increase further.
• It was unclear if panel members and clerks would be eligible for vaccination against COVID-19 in time for the main appeals round.
• Officers continued to work from home and a return to the office was unlikely in the coming months.
• Schools were facing pressure because of ongoing closures relating to COVID-19.
• It had trialled the use of video-conferencing for in-year appeals but found panels were limited to hearing seven appeals a day (compared with 12 to 16 appeals a day when carried out face-to-face). Panel members had told the Council they would not be willing to conduct appeals this way in the main appeals round.
• The Council expected to receive over 2,000 appeals and it would not be possible to complete them all virtually in time for the new school term.
28. The Council considered the impact of following the process outlined in paragraph 15. It said the availability of Council officers and school staff to carry out the process would present difficulties. However, its main concern was the availability of panel members. It said even if the Council and schools could support an additional questioning stage, it had insufficient panel member capacity to hear those appeals in a timely way. It said this would mean appeals continuing into the next academic year. The Council considered such a delay would cause a greater disadvantage to appellants than failing to include a questioning stage as part of the appeal. It decided to continue with appeals based on written submissions.
29. At the same time the Council introduced some changes to its appeals process. Schools would publish their defence statement and accompanying documentation on their website on national offer day. Parents would be able to address any key points in the school’s defence in their appeal submission. A frequently asked questions document would accompany the school’s defence statement, which explained the appeal process, and included key questions a panel would usually ask a school and a parent. Parents who were unable to provide a written statement could ask for the appeal to be heard in a different format.
30. The Council said introducing these steps meant parents would have all relevant information available to them to include in their appeal submission. It believed it offered the best opportunity to hear all appeals in a fair and transparent way before the start of the new school year.
31. The Council reviewed the temporary arrangements in September, October and November 2021, in light of national COVID-19 infection rates and restrictions applying at each point. In January 2022 the Council reviewed the position again to decide on the appeal arrangements for the 2022-2023 academic year admission round due to start in March. It noted that some of the same issues applied as in last year’s appeals:
• There was still a high volume of appeals, over 2,000.
• A high percentage of panel members, who are volunteers, met the definition of being at risk from COVID-19 and the Council had a duty to them and all the parties to keep them safe.
• Any process of virtual hearings had to be consistent and fair to all. However the lack of consistent video equipment available for all appellants meant that some hearings would have to take place by video call and others by telephone. This would potentially disadvantage different parents in different ways.
32. The Council also considered other current factors:
• The arrival of the Omicron variant which was widespread and highly contagious, and the self-isolation rules that applied.
• Despite some restrictions being lifted, national guidance was still to work from home where possible.
33. The Council’s conclusion was that it should continue to hold main round appeal hearings for 2022-2023 as paper-based only, unless adjustments were needed in an individual case because of a parent’s disability. There would be the option of remote hearings for in-year appeals when there would not be the same number of hearings needed. The Council considered that the changes it had made to the process the previous year would give parents the chance to prepare their cases more effectively.
34. The Council reviewed the position again in March and May 2022. In March infection rates remained high and the Council decided paper-based appeals were the only feasible option. In May infection rates had reduced. But the Council considered, given the number of panel members available and the pressures schools were already facing due to COVID-19, it would not be possible to convert appeals that had already been arranged to virtual ones and still meet required deadlines. The Council decided the rationale for paper-based appeals still applied.

Ombudsman guidance

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

35. Mrs X applied for a grammar school place for her daughter, D, from September 2022. D sat the Kent Test in autumn 2021. She achieved a total score of 323, reaching above the minimum score on two of the tests, but with a score of 97 in the English test. The Headteacher of her primary school did not refer her case to the Head Teacher Assessment Panel. Mrs X says this was because a minimum score of 100 is required in each test to qualify for a referral.
36. The school did not offer D a place as she did not meet the entry requirement. Mrs X appealed the decision not to admit D. In her written appeal she said D’s score on the English test was uncharacteristically low and did not reflect the general pattern of results she had achieved previously. She said D was working in the top 10% in her year for English. She felt the low result in the test was due to nerves and lack of self-confidence as it was the first paper she took. Mrs X described D’s other achievements and why she felt she was suited for the school.
37. Mrs X also sent in supporting letters from the Headteacher of D’s primary school and the private tutor who had helped prepare her for the test and a school Year 5 progress report.
38. The Council wrote to Mrs X about the arrangements for the appeal in April. It said the panel was satisfied it was not possible to offer remote access for appeals for the school and had agreed to make their decisions based on written evidence. It provided a link to online document storage where she could find the school’s case and the FAQ document. It invited Mrs X to add any additional information. It said the appeal panel would meet by tele/videoconferencing in May. It outlined the two-stage decision-making process.
39. Mrs X sent in a further submission in which she referred to D’s Cognitive Abilities Test (CAT) scores and gave the details of her Year 5 CAT results. She expanded on her reasons for appeal and explained the difficult family circumstances D had faced in the weeks leading up to the Kent Test.
40. The appeal panel met remotely in May to consider the 42 appeals for the school. The record shows that the panel agreed that it had not been possible to arrange face-to-face or remote hearings and that parents had been informed, given proper notice, and offered a chance to submit extra information.
41. At stage one the panel considered the school’s case that admitting more pupils would prejudice its capacity to provide efficient education or use its resources. The panel decided the school could take a certain number of pupils without causing prejudice.
42. At the second stage, the panel considered Mrs X’s appeal. It decided that the evidence provided did not demonstrate that D was of the academic standard needed for grammar school.
43. The panel then carried out a ranking exercise to decide which pupils the school should admit. It gave individual pupils a score of between zero and four based on the strength of their case. A score of zero was for children the panel did not consider were of grammar school ability or those who were of the required standard but whose case did not outweigh the prejudice to the school. The panel gave D a score of zero as it did not consider her of grammar school ability. The panel’s ranking exercise identified those children it felt had made the strongest case for admission and it decided to uphold their appeals. It refused the remaining appeals.
44. The clerk wrote to Mrs X with the panel’s decision two days later. The letter said the panel had taken into account “everything submitted in the paperwork”. It referred to several points including:
• the description of D in the supporting letter from her Headteacher including that she had been working at greater depth since year 5, was on track to do so in her SATs, and was working in the top 10% in her year,
• the Year 5 school report,
• Mrs X’s argument about the impact of D’s nervousness on the day of the test and the family circumstances in the period leading up to it.
45. However the panel concluded:

“There was an absence of teacher assessment levels over KS2 (Key Stage 2), CAT scores or mock SATs (….) results, if any were available. Given that [D’s] English score was significantly below the required level, the Panel Members felt that it was simply too low to be outweighed by the mitigation and limited evidence presented. As a result, they were unable to admit D to [the school] via this appeal.”

Analysis – was there fault causing injustice?

Appeal hearing arrangements

46. The Ombudsman investigated several complaints about the 2021-2022 admission appeals round. We found that the Council had properly considered holding appeals remotely and decided it was not possible to do so fairly. We considered the Council had provided a detailed and robust explanation of its decision and the process used for holding appeals by written submissions only. We did not find fault in the way the Council decided on its approach to appeals.
47. The Council has provided detailed information about how it came to the decision to continue holding paper-based appeals for the 2022-2023 admissions round. Looking at the Council’s reasoning I do not consider it was at fault in how it arrived at its decision. It has considered relevant factors and explained the reasons for its decision. It has kept the situation under review. It has considered how it can give parents the maximum information about the school’s case, generally and in their individual appeal, and the opportunity to present their own information despite not being able to present their case in person and ask questions. Through the FAQ document the Council has given parents the opportunity to ask for an alternative method of holding the appeal if they have particular difficulties that would prevent them making a written submission and do not have support to do so.
48. The Council came to the conclusion that continuing to hold written-only appeals gave the best chance for hearing all appeals consistently and fairly in time to make decisions before the start of the next academic year. I recognise this means Mrs X was not able to discuss the panel’s view of the evidence she presented as she would have wished. But as I have not found fault in the way the Council reached the decision to hold main round appeals in this way, I cannot criticise it in this case.

Appeal panel’s decision-making

49. I have considered how the appeal panel reached the decision in Mrs X’s case. The clerk’s notes of the hearing and the panel’s decision-making as well as the decision letter show the panel considered a broad range of the arguments and evidence she provided. However one of the reasons the panel gave for deciding it did not have enough evidence that D was of grammar school ability was the “absence” of data including CAT scores. At first sight this appeared to have failed to take account of the information Mrs X provided about D’s CAT scores in her additional submission. However in response to our draft decision the Council obtained comments from the Chair and clerk of the appeal panel. They confirmed that the panel did consider the Year 5 CAT scores Mrs X provided. The Council explained that what the decision letter meant was that there was a lack of information from D’s school about more recent test scores. Overall the panel decided unanimously that without this information from the school, along with the lack of a Head Teacher Assessment Panel, there was not enough evidence to overturn the Kent Test score.
50. This was a decision the panel was entitled to make. It is for the panel to decide how to weigh up the evidence. But the decision letter should have been clear about the reasons for the decision. The lack of clarity caused confusion as Mrs X believed the appeal panel had not considered some of the information she had provided.

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Agreed action

51. The Council has accepted the appeal panel should have made it clearer what information it considered was absent. It has offered to write to Mrs X to explain the position. I consider this is a suitable remedy for the confusion caused.

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Final decision

52. I have found there was fault in the appeal panel’s decision letter as it was not clear what evidence it considered was missing. The Council’s offer to write to Mrs X with a further explanation is a suitable remedy for the confusion caused. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman