Summary: Mr X complained his school admissions appeal panel hearing was flawed because it failed to take relevant information into account and it failed to apply the admissions criteria correctly. The Council failed to properly record the reasons for the panel’s decisions at both stage of the process which means it is not possible to determine whether there were flaws in the decision-making process. The Council agreed to offer Mr X a fresh appeal with a new panel and clerk to remedy the uncertainty this has caused Mr X.

The complaint

1. Mr X complains his school appeal panel hearing was flawed because it failed to take relevant information into account and was not independent or transparent. He also says it failed to apply the admissions criteria correctly and did not properly consider the number of children the school could accept into his child, Y’s, school year.
2. He says Y needs support and stability to manage their health condition which will decline if she cannot attend their preferred placement.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke to Mr X and considered his view of the complaint.
7. I made enquiries of the Council and considered the information it provided. This included the documentation relating to the appeal, including the clerk’s notes.
8. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made my final decision.

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What I found

School admissions

9. 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. 
10. 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. 
11. 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.  
12. The criteria for the school in this case (School D) are, in order:
• children who have an education, health and care plan.
• looked after, or previously looked after children.
• children subject to a child protection plan.
• children with older siblings already at the school.
• children who have a medical condition or disability which makes it better for them to attend the school rather than another. The child’s health would have to be seriously exacerbated if a place was not offered and would need to show strong supporting medical evidence.
• children for whom School D is their nearest school, using a straight line.
13. 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

14. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.  
15. 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. 
16. In 2020, the government introduced emergency regulations because of the COVID-19 pandemic. These temporarily amended the existing regulations. (School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020).
17. The emergency regulations allow appeals to be conducted using ‘remote access’ (such as telephone conference or video calling), as opposed to in-person hearings. Under these regulations, appeals can be held entirely by written submissions. However, the accompanying guidance states this should only be allowed when it is not ‘reasonably practicable’ to hold an appeal in-person, because of issues relating to COVID-19.
18. A clerk supports the appeal panel. Parents 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. 
19. 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. 
20. Panels must follow a two-stage decision making process.
21. 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.  
22. 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. 
23. At Stage 2, the panel must balance the prejudice to the school against the appellant’s case for the child to be admitted.  
24. 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. 
25. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions. 
26. The appeal panel must write to the appellant, the admission authority and the council with its decision and the reasons for it.  

What happened

27. Following the 2022 school admissions round, Mr X’s child, Y, was allocated a place at School Z.
28. Mr X appealed to the Council, which was the admissions authority, and requested a place at School D. Mr X said Y experienced anxiety and other related conditions and it would affect their mental wellbeing if they could not go to School D.
29. In May, the Council wrote to Mr and Mrs X to inform them their appeal would be held the following month. The letter informed them the appeal would not be held in-person and they could choose either a telephone conference or agree that the panel could decide on the basis of the written submissions from them and the school. Mr and Mrs X selected the telephone conference option.
30. School D’s case made the following points:
• its PAN for each school year was 270. This had been increased from 240 in 2017 and as a result, the school was “desperately short of space with many overcrowded areas”.
• some classrooms could only accommodate 20 pupils maximum and most of the others were not big enough or equipped for more than 30 pupils.
• pupils’ learning was affected by the overcrowding and shortness of space.
• the school did not have sufficient budget to employ more teachers to enable smaller class sizes to accommodate the small classrooms.
• information technology, music, science and PE in particular did not have the equipment to cope with more than the current class sizes and there were health and safety implications if additional pupils were accepted.
• there were insufficient dining facilities.
• the pastoral care support team was already overstretched.
31. The school concluded by saying that the admittance of Y would prejudice the provision of efficient education or resources to others. Y’s year group was already full and there were other schools in the area which had surplus places.
32. Mr X made the following points in support of his appeal:
• Y had complex mental health issues, which were made worse by stress.
• all of Y’s friends were going to School D and Y relied on her friends for support.
• their other child went to a primary school near School D. He and Mrs X worked and relied on family close to School D to provide childcare. If the two children were in schools eight miles apart, this would cause a breakdown in this support network.
33. Mr X also challenged the school’s case. His points included the following:
• School D had capped pupil admissions at 30 per class when there were other schools in the country which had higher levels.
• School D reported pupil absence levels at 4.9% which meant on any given day there would be 66 pupils absent. This would allow for class sizes to be increased to 31.47 pupils.
• School D had a lower than average number of pupils with special educational needs.
• a rota would enable all children to have a reasonable amount of time to eat lunch.
34. Mr X said the admissions authority had failed to consider Y’s condition. In addition, Y should have been placed at School D under the medical category. Mr X said that if this had happened, Y would have had priority over 182 of the 270 children offered places at the school.
35. The clerk’s notes record the appeal was attended by a school representative, Mr X and his mother-in-law, Mrs M. The school put its case and Mr X and Mrs M were able to respond to this. The clerk recorded that the panel agreed unanimously that the school had been able to demonstrate it would be prejudicial to accept an additional child.
36. The panel then went on to consider the second stage of the appeal which was whether Mr X’s cases outweighed the school’s case of prejudice.
37. Mr X put his case which was along the lines of the issues listed above. He also presented a GP’s letter which confirmed Y’s condition and requested they be admitted to the school.
38. The panel then considered the matter in private. It was agreed by two votes to one to refuse Mr X’s appeal on the basis that there were insufficient grounds on which Mr X’s reasons outweighed the school’s case. The panel noted Y’s medical condition.
39. The Council wrote to Mr X with the outcome and Mr X complained to us.
40. In relation to my enquiries about how it held the appeal hearings, the Council said that it decided to hold them remotely because the room used for appeals was small and was not well ventilated. In addition, there was some reluctance from panel members to return to face-to-face meetings because of their vulnerable circumstances. As a result, to ensure fairness, all appeals were held remotely.

My findings

How the appeal was held

41. 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. The Council considered the relevant information before concluding it would not be practical to hold the meetings in person. There was no fault in how the Council made this decision.

The panel’s decision

42. A clerk must take an accurate record of the hearing, including the reasons for decisions.
43. Although the clerk’s notes provide a record of both side’s cases, and it correctly considers the appeal in two stages, there is little information to explain why the panel made the decisions it reached.
44. In these cases, we consider the decision letter issued to the parents to establish more detail. In this case, the letter too provides little detail. Therefore, it is not possible to say conclusively why the panel reached its decision. This is fault.
45. As a result, Mr X cannot be satisfied the panel properly considered his appeal. The Council should, therefore, hold a fresh appeal with a new appeal panel and clerk. It may decide to come to the same conclusion as the previous panel, but if that is the case, it should record and give details for why it made its decisions.

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Agreed actions

46. Within one month of the date of my final decision, the Council agreed to:
• arrange a fresh appeal with a new panel and clerk for Mr X; and
• remind all clerking staff of the need to record the reasons for the panel’s decisions at both stages of the deliberations and explain them to the parents in the decision letter.

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Final decision

47. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the faults.

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Investigator's decision on behalf of the Ombudsman