Summary: Mrs F complains about an independent appeal panel’s decision to reject her appeal for a grammar school place for her son. We found no fault by the panel.

The complaint

1. Mrs F complains about an appeal panel’s decision to reject her appeal for a Dover Boys Grammar School place for her son, J. She says J was not given the same adjustments to access the tests as other children with the same additional needs and had therefore been discriminated against on the grounds of disability.
2. Mrs F says as a result he narrowly missed the pass mark and was now unable to attend the School.

Back to top

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. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the organisation followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. 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

7. I spoke to Mrs F about her complaint and considered:
• the admission appeal papers and the Clerk's notes of the panel
• the School Admission Appeals Code 2012 (“the Code”)
• the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the emergency regulations).
• Government guidance: ‘Changes to the admission appeals regulations during the coronavirus outbreak’ (the “COVID-19 guidance”)
8. Dover Boys Grammar School (“the School”) acts as its own admission authority, it relies on Kent County Council to provide independent appeal panels for its appeals process. We have received information from the Council about how the arrangements for appeal hearings were decided. However, the School retains responsibility for its admissions and appeals so the findings I make in this decision statement will be recorded against the School, not the Council.
9. Mrs F and the School had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Admission to grammar school

10. 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.
11. The School also has a test; it admits children who reach the required scores in the Kent Test or in its own school test.

Special arrangements for the Kent Test

12. If a child has a disability or special educational needs that may affect the way that they access the test, special arrangements may be requested. Parents should discuss this with their current school's Special Educational Needs Co-ordinator (SENCO). The school may then ask the Council to make request reasonable adjustments for the Kent Test.
13. If reasonable adjustments are provided, the primary school should notify the School so it can provide the same adjustments for its own test.

Reasonable adjustments for people with disabilities

14. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
15. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

School admission appeals

16. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place. Appeals are considered by an independent panel. The 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 the admission arrangements comply with the law and whether the admission authority properly applied those admission arrangements.
17. For grammar school appeals, where the child did not reach the required mark in the tests, 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.

(School Admission Appeals Code 2012 paragraph 3.13)

18. The panel must not devise its own methods to assess suitability for a grammar school place unrelated to the evidence provided to the appeal.

Appeal arrangements during the COVID-19 pandemic

19. In 2020, the government introduced emergency regulations and guidance because of the COVID-19 pandemic. These temporarily amended the existing regulations and were in force until 30 September 2022. In short, they say that panels could be held remotely or, where this was not possible, appeals could be conducted entirely based on written submissions.
20. In January 2022 Kent County Council reviewed its appeal arrangements for the 2022-2023 academic year admission. It noted:
• There was 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.
• 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.
21. The Council’s conclusion was that it should hold appeal hearings as paper-based only. 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.

What happened

22. Mrs F’s son, J, is awaiting assessment for ADHD and has anxiety. Mrs F applied for a grammar school place for him from September 2022. He sat the Kent Test and the School’s test.
23. J’s primary school SENCO requested special arrangements be made for him. These were to have a prompter, supervision in a smaller room and rest breaks. Mrs F told me she was concerned more time had not also been requested, as J’s teachers had always advised her that he needed more time to finish his work.
24. To be given a grammar school assessment, children needed a total score of 332 in the Kent Test. J achieved a total score of 300 and 111 in the School’s test. The pass mark for the school test was 116. The school did not offer J a place as he did not meet the entry requirement.
25. Mrs F appealed the decision not to admit J. The panel clerk wrote to Mrs F about the arrangements for the appeal. It said the panel 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. It invited Mrs F to add any additional information. It said the appeal panel would meet by tele/videoconferencing in May and outlined the two-stage decision-making process.
26. The appeal panel met remotely in May to consider 11 appeals. At stage one, the panel agreed that the admission arrangements complied with legislation and had been correctly and impartially applied in the cases in question.
27. At the second stage, the notes show the panel considered Mrs F’s written appeal. She said J was waiting for ADHD diagnosis and support. He had therefore not had the educational provision he was entitled to but was only just short of the pass mark. He had had a traumatic year due to family breakdown following domestic abuse and the pandemic lockdown. He was also a young carer for two siblings. Mrs F described why she felt he was suited for the school and sent in supporting letters.
28. The notes show the panel was aware that J had had special arrangements for the test, was bright and was on track to achieve the expected standard in all key areas of the curriculum.
29. The panel considered the evidence provided about J’s ability and any mitigating factors that might explain J’s low score in the tests. It decided that the evidence did not demonstrate that J was of the academic standard needed for grammar school. The panel was not confident J would be able to cope with the sustained pace and rigour of the accelerated curriculum in a grammar school. It therefore did not uphold the appeal.
30. The clerk wrote to Mrs F with the panel’s decision. Mrs F came to the Ombudsman.

My findings

31. The Ombudsman’s role is to consider whether the appeal panel followed the Code. We do this by examining the panel’s papers and the notes taken by the Clerk. We do not have the power to overturn the panel's decision and we cannot give a child a place at the school. It is for the panel to decide what weight to give the evidence. As long as it considered the evidence put forward properly, the Ombudsman cannot say what conclusion it should have come to. If we find fault which calls the panel's decision into question, we may ask for a new appeal.
32. I have therefore first considered whether the appeal was held properly. The Council had determined it should be paper-based. The COVID-19 guidance says appeals held entirely on the basis of written submissions are acceptable. The Council has set out its reasons for holding the panel as written submissions only and there was no fault with this decision.
33. I have then considered how the panel reached the decision in Mrs F’s case.
34. I am satisfied from the records of the panel and the panel’s decision letter that the panel followed the two-stage process for considering the appeal as required. At the first stage it decided that the admission arrangements complied with legislation and had been correctly and impartially applied. There is no evidence of fault in this.
35. As this was a grammar school appeal, the panel then had to determine whether there was evidence that J was of the required academic standard. The notes show the panel considered the evidence from the primary school head teacher, the School and Mrs F. It considered that special arrangements had been made for the test. The panel decided the evidence did not show that J was at grammar school standard. This is a decision it was entitled to make and, having reviewed the documents, I find there was no fault in this decision.
36. Mrs F complains that J was not given enough time to take the test, though this was not referred to in her appeal document. But it was not for the panel to determine what special arrangements should have been made for J. The panel cannot devise its own method to assess J’s ability or decide whether he would have passed the test if he had had more time. It can only consider the evidence of academic ability before it.
37. Mrs F’s view that J did not have sufficient reasonable adjustments made in the test is not evidence of fault or discrimination by the panel. If Mrs F was unhappy with the primary school’s request for special arrangements, this was a complaint she had to make to the primary school.

Back to top

Final decision

38. There was no fault. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman