Summary: There was no fault in either the way the school admissions panel appeal meeting was held or how it made its decision to refuse Mrs X’s child a school place.

The complaint

1. Mrs X complains the decision by the Council’s school admissions panel to refuse her child, Z, a place at School B, was flawed and Z was refused a place based on their ethnicity.
2. Mrs X says this has caused her and Z distress. She would like a fresh appeal.

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The Ombudsman’s role and powers

3. 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)
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 considered the information Mrs X provided about her complaint.
6. I made enquiries of the Council and considered the information it provided. This included the Council’s policy on school admission appeals and the clerk’s notes of the appeal hearing.
7. I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

School admissions

8. 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. 
9. Under the system of coordinated admissions, parents make a single application for a school place to their home council. This is the council the parent pays their council tax to. 
10. All schools must have a set of admission arrangements containing oversubscription criteria. The school’s admission authority uses these to decide which children will receive an offer of a place if there are more applications than places available. The school’s admission authority sets the admission arrangements.  
11. A school’s admission arrangements must also contain a Published Admission Number (PAN). This is the number of places the school will offer at each point of entry. The point of entry is when the school normally admits children. In an infant or primary school this is usually the reception year.  

School appeals

12. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.  
13. 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. 
14. A clerk supports the appeal panel. Parents/carers can submit 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. 
15. 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. 
16. Panels must follow a two-stage decision making process.
17. At Stage 1, the panel examines the decision to refuse admission. The panel must consider whether: 
• the admissions arrangements complied with the mandatory requirements set out in the School Admissions Code; 
• the admission arrangements were applied correctly; and if 
• the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.  
18. 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. 
19. At Stage 2, the panel must balance the prejudice to the school against the appellant’s case for the child to be admitted.  
20. 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. 
21. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions. 
22. The appeal panel must write to the parents/carers, the admission authority and the council with its decision and the reasons for it.  

Changes to the Code due to COVID-19

23. Paragraph 2.12 of the Code states that “appeal panels must allow appellants the opportunity to appear in person and make oral representations”.
24. In April 2020, temporary regulations came into force called the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These gave some flexibility when dealing with appeals during the COVID-19 pandemic. These temporary changes applied to the format of hearing admissions appeals. For instance, where it was not reasonably practicable to hold face-to-face hearings for reasons related to the COVID-19 pandemic, hearings could be conducted by telephone or video conference. Where telephone or video conference was not possible, appeals conducted entirely on the basis of written submissions were acceptable.

What happened

25. Mrs X submitted an appeal when her child, Z, did not get a place at School B.
26. The Council wrote to her in May with details of her appeal hearing which would take place the following month via a conference telephone call. The Council included details of the appeal process.
27. Mrs X submitted her case in writing for why Z should be given a place at School B. She made the following points:
• most of Z’s friends were going to School B and Z had become depressed and anxious after being refused a place;
• the school which had accepted Z was 2.7 miles from their home whilst School B was 1.9 miles distant. The longer school run would mean Mrs X would struggle to pick Z’s sibling up on time from their primary school;
• Z’s father and uncles were educated at School B and the family wished to keep the tradition going.
28. School B also presented its case in writing for the panel’s consideration. It made a significant number of points as to why admitting more pupils would be prejudicial to existing students. These included:
• the school was already over its pupil capacity;
• it was already under significant pressure to address the needs of its looked after children (LAC)and those with special educational needs – the school had one of the highest disadvantaged intakes in the area as well as one of the highest numbers of SEN and LAC pupils;
• many of the classrooms were undersized and the school as a whole urgently needed additional capital investment to accommodate the current number of pupils in school;
• the science labs were struggling to manage the existing number of existing pupils and did not have enough space or equipment; and
• the PE, technology and modern language departments were also struggling to accommodate the already existing additional pupils.
29. The clerk’s notes showed that at the hearing, both the school and Mr and Mrs X were able to attend (by telephone).
30. The school put its case to the panel. The clerk’s notes record this included the above details and the school also explained:
• the distance between Z’s home and the school was why Z had not been offered a place in the normal admissions round;
• Z’s appeal was one of 16 made in relation to the school; and
• pupils from Z’s primary school went to a number of secondary schools.
31. Mr and Mrs X and panel members then put questions to the school.
32. Following this, Mr and Mrs X put their case to the panel. The clerk’s notes record this was, like the school’s case, in line with their written submission. Mr and Mrs X explained the impact the situation had had on Z’s mental wellbeing. The panel then asked them a number of questions.
33. The panel then considered its decision in private. The clerk’s notes record it was agreed unanimously that the school had met the first test and demonstrated the admission of additional pupils would be prejudicial to existing students.
34. In relation to the second test, the clerk recorded the Panel’s considerations. The school Z had been offered was on a main bus route and Z already went into town with friends on the bus. The panel found Mr and Mrs’s case centred on Z’s friends and the logistics of getting both of their children to school and they had not demonstrated what School B offered that the other school did not. The clerk recorded the panel found that on balance, the school’s argument was stronger than Mr and Mrs X’s.
35. The Council wrote to Mrs X with the panel’s decision. The letter explained in more detail why the panel felt the first stage criteria had been met by the school. It also explained the basis on which it had balanced both side’s cases and concluded the prejudice to the school outweighed the parents’ case.
36. Mrs X remained unhappy and complained to us. She said they had been discriminated against because of their ethnicity.
37. In its response to my enquiries the Council told me it began to prepare for the admissions appeals process in March 2022. At that time, COVID-19 cases were increasing in the area. The Council consulted with the relevant officers, including the Director of Public Health, and schools and decided that due to the age and demographic of the panel members, as well as the wellbeing of staff and any vulnerable people appealing, it would be prudent to hold appeals remotely. The Council also felt it would be more equitable to apply this to all the appeals.

My findings

How the appeal was held

38. The emergency COVID-19 regulations state that the amended provisions for holding remote appeal hearings can only be made when it would not be reasonably practicable to hold an in-person hearing.
39. The Council has provided information to demonstrate it considered how appeals should be held in light of the pandemic. The decision it made to conduct appeals remotely was made without fault.

The panel’s decision

40. A clerk must take an accurate record of the hearing, including the reasons for decisions.
41. The clerk’s notes recorded the cases put by both sides. Their recording of the reasons why the panel considered stage 1 to be met by the school is scant but the decision letter provides sufficient detail to allow an understanding to be drawn as to the reasons why.
42. The clerk’s notes are sufficiently detailed in providing information on how the panel balanced the school’s case and Mr and Mrs X’s case.
43. On this basis, and on the evidence provided so far, the Council was not at fault.
44. Mrs X believes the Council was racist. There is no evidence of that.

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Final decision

45. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman