Summary: Mrs X complained that the independent appeal panel’s decision to refuse her appeal for a Year 4 place for her son was unfair. She says her circumstances were no different from that of another family who had won their appeal previously, and the Chair of the panel knew her husband but did not declare it. We have not found fault by the Council or the appeal panel in these matters.

The complaint

1. Mrs X complained that the independent appeal panel did not consider her appeal for a place for her son in Year 4 at Primary School 1 properly or fairly. In particular she says:
1. her circumstances were no different from another family's who won their appeal; and
2. when she joined the virtual hearing she found the Chair of the panel knew her husband but did not declare it.

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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 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

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 amended the existing regulations and remained 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. 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.
12. 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.
13. 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.”

14. The guidance said admission authorities would need to review any arrangements they had put in place to ensure they comply with the temporary regulations.
15. The same conditions for deciding to hold remote hearings and the suggested process for written submission appeals applied as in the original guidance.

Panel members

16. Certain people are not allowed to be members of an appeal panel. These include:
• members or employees of the local authority which is the admission authority for the school or where the school is situated;
• members or former members of the governing body of the school. (School Admission Appeals Code paragraph 1.7)
17. The clerk to the panel must send all the papers required for the hearing, including the names of the panel members, to both the parties and the members of the panel a reasonable time before the date of the hearing. The School Admission Appeals Code says this will allow an opportunity for any objections about impartiality of panel members to be notified to the clerk. (School Admission Appeals Code paragraph 2.10)

School admission appeals – decision-making

18. 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.
19. 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.

What happened

20. In September 2021 Mrs X made an in-year application for her son, D, to move from the school he currently attends to School 1 in Year 4. The Council rejected the application as it said the School was full. School 1 is a two-form entry school.
21. Both D and his younger sibling, E, were on the waiting list for School 1. In January 2022 a place became available for E in a lower year at the School and he transferred there. Having a sibling at the School meant D moved into a higher category in the admission criteria and moved to the top of the waiting list.
22. Mrs X asked for a place at the School but was told it was full. She appealed to the independent appeal panel. In her written appeal she said she had found out that a parent she knew who had a child on the waiting list had been offered a place in the same year as D. This took the number in the class to over 30. She said she expected to be offered a place for D in the other class in the same year, otherwise it would be unfair. She said she was having to take her children to different schools which she was finding very difficult.
23. The appeal hearing took place remotely by video-conference in May 2022. Mrs X attended with her husband. The appeal panel did not uphold the appeal. The decision letter said the panel had rejected the appeal by a majority of two to one. It said the panel was extremely sympathetic to her situation. However it found that the School was already over its planned admission number and prejudice would be caused to the School if it were to admit more pupils. It noted the difficulties Mrs X had in taking her children to different schools but decided that her case was not strong enough to outweigh the prejudice the school would suffer.
24. Mrs X complained to the Ombudsman. She said she felt the decision was unfair because her circumstances were no different to those of the other parent she knew whose child had been offered a place. She also felt the appeal was unfair because her husband realised when they joined the hearing that he knew the Chair of the panel as a customer of his business.

Analysis – was there fault causing injustice?

25. I have considered first whether the Council was at fault in holding the hearing virtually rather than face-to-face. By the time of the hearing in May 2022 face-to-face hearings were allowed if it was possible to hold them safely. The Council has explained that appeal hearings are usually held at the Town Hall but this was normally closed to members of the public at this point, which included panel members and appellants. The Council looked into the possibility of holding appeals in alternative venues such as school halls or church halls. However because of restrictions due to the COVID-19 pandemic these options were not available. As the Council considered the matter properly and explained its decision I have no grounds to criticise the decision made.
26. In any event Mrs X has not raised any concerns about how the hearing went. She said she could hear what everyone said and there were no technical hitches. I have not seen any evidence to suggest that she was disadvantaged by having the appeal heard virtually.
27. Mrs X says the decision on her appeal was unfair because her family circumstances are similar to those of another parent she knows whose child was offered a place at School 1. The Council has explained that the other child succeeded on appeal. The other appeal hearing took place on an earlier date with different appeal panel members. The fact that one appeal succeeded when another did not is not in itself evidence of fault. Each panel has to consider each case on its merits and come to its own decisions based on the evidence before it. Also by the time Mrs X’s appeal was heard, School 1 had had to admit the other child, taking the numbers on roll above the published admission number. The panel which heard Mrs X’s appeal would not have known the reasons why the other appeal succeeded and it is not its role to compare one appeal to another. But it would have had to take account of the fact that the School already had one child over the planned number in the same year group when it was considering the impact on the School of admitting another pupil at stage 1 and in the balancing exercise at stage 2. The fact that one appeal panel allowed an appeal and another did not does not amount to fault.
28. Mrs X also complains that the Chair of the panel and her husband knew each other but the Chair failed to point this out. I have looked into this issue but do not find fault. Both Mrs X and the Council confirm neither Mr X nor Mrs X mentioned that Mr X knew the Chair when they attended the hearing. The Council properly sent details of the panel membership to Mrs X in advance of the hearing. So it gave her an opportunity to object to any of the members if she felt there was a connection that would raise doubts about impartiality. Mrs X says she did not show the letter to her husband.
29. The Chair of the panel has said he did not recognise Mr or Mrs X and does not know them.
30. I am satisfied that if there is any connection between Mr X and the Chair of the panel the Chair was not aware of it and the evidence suggests it was a passing acquaintance only, as a business customer. This is not one of the grounds for disqualifying someone as a panel member. I do not consider the Council was at fault in including the Chair on the panel to hear Mrs X’s appeal. Also, as the Chair does not recall knowing Mr X and did not recognise him at the hearing, there is no evidence that the connection played any part in the panel’s decision-making.

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Final decision

31. I have not found fault by the Council or the independent appeal panel in the matters Mrs X complained about. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman