Summary: Mrs X complains that an appeal panel did not properly consider her appeal for a place at a school. We find the School is at fault as there is no evidence to show the appeal panel made a decision on whether the admission arrangements were lawful. This fault did not cause significant injustice to Mrs X.

The complaint

1. Mrs X complains that an appeal panel did not properly consider her appeal for a place at a high school for her daughter as it did not take account of the impact on her daughter of moving to a school without her friends.

Back to top

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 cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I have:

• considered the complaint and the information provided by Mrs X;
• discussed the issues with Mrs X;
• considered the information provided by the Council on behalf of the School;
• invited Mrs X and the School to comment on the draft decision. I considered any comments received before making a final decision.

Back to top

What I found

School admission appeals – arrangements for appeal hearings

5. Statutory guidance about school admissions and appeals is in the School Admissions Code and School Admission Appeals Code, published by the Department for Education.
6. 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 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’.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.”

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

15. 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 and the School Standards and Framework Act 1998: and
• 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.
16. 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.
17. The clerk must ensure an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting and reasons for decisions.
18. 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.

School/Council’s approach to appeals.

19. The Council administered the appeals on behalf of the school so in this statement I will refer to the Council.
20. In response to our enquiries the Council said it made a decision in conjunction with the schools, volunteer panel members and clerks to hold the appeals for 2022 by written submission. This was due to a number of factors including:

• lack of panel members wiling to hear face to face appeals,
• lack of ability of other panel members to cover if there was sickness amongst panel members,
• the lack of staff to cover sickness absence,
• the inconvenience to appellants if appeals needed to be rescheduled due to sickness and the ability to hold all main entry appeals for 2022/23 in a timely manner.

I asked the Council to explain why it had not offered video or telephone appeals to appellants. The Council has said that at the start of the COVID 19 pandemic, panels considered if there were the facilities for all parties to use video or telephone to hold appeals remotely. Panels considered that the conditions set out in the temporary regulations could not be met and appeals could not be held fairly and transparently in this way.

What happened

21. Mrs X applied for a place in year 7 for her daughter at her preferred school. The school refused a place as it was oversubscribed and other applicants had greater priority under its admissions policy.
22. Mrs X appealed against the school’s decision. In her appeal said her daughter’s mental health had been adversely by an earlier school move and she was distressed by the thought of not transferring to the same school as her friends.
23. The Council acknowledged Mrs X’s appeal and sent her a booklet which explained the appeals process. The Council notified Mrs X of the date of the appeal. It later sent a link to the school’s statement which set out why it was not possible to offer a place. Mrs X was given the opportunity to ask questions on the school’s case. The school was given the opportunity to ask Mrs X’s questions on her case and the appeal panel could ask questions of both the school and Mrs X. The Council circulated the answers to the questions to all parties.
24. The panel asked why Mrs X’s daughter was not offered a place as Mrs X lived closer to the school than the last child who was offered a place. The school said Mrs X’s application was late. In response to other questions the school clarified that the child who had been offered the last school place lived 2.118 miles from the school. Mrs X lives farther away from the school than this.
25. The appeal panel met remotely to consider the appeals. the stage one hearing was a grouped appeal there were a number of appeals for the school. The clerk’s notes show the panel confirmed they agreed to hold the appeal by written submissions. The clerk’s notes record the panel’s discussion on whether the school had made its case that the admission of additional pupils would prejudice the efficient education and use of resources at the school. The panel considered the school had made its case. There is no record of whether the appeal panel considered the admission arrangements complied with the requirements of the school admission’s code.
26. The clerk’s notes suggest the appeal panel considered if the admission arrangements had been properly applied to Mrs X’s daughter when it went on to consider stage two of the appeal. The clerk’s notes show the appeal panel considered Mrs X’s reasons for wanting a place at the school. This included the impact on Mrs X’s daughter of not being with her friendship group. The appeal panel decided that Mrs X’s reasons for wanting a place at the school did not outweigh the prejudice to the school.
27. The clerk to the appeal panel wrote to Mrs X notifying her of the appeal panel’s decision. The letter said the appeal panel had satisfied itself that the admission arrangements complied with the school admission code and School Standards and Framework Act and had been properly applied. It also explained the panel found the school had made its case that admission of another pupil would prejudice the efficient education and use of resources at the school. The letter noted Mrs X’s reasons for wanting a place at the school and explained that the panel considered the prejudice to the school outweighed her case.

Analysis

28. I have, firstly, considered if there is evidence of fault in the Council’s decision to hold the appeals by written submission as the guidance permitted face to face appeals at this time.
29. The guidance accompanying the amended temporary regulations of September 2021 provides admission authorities should review their arrangements to ensure they comply with the temporary regulations. The Council has demonstrated that it reviewed whether it could offer face to face hearings and concluded it could not. It has explained the reasons why it could not offer face to face hearings. The Council has also demonstrated that it reviewed whether it could hold appeals by video or telephone conference in late 2021. I therefore do not consider there is fault in how the Council reached its decision to hold the appeals by written submission.

Appeal panel’s consideration of the appeal

30. The school admission appeals code provides the clerk must ensure an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting and reasons for decisions, The clerk’s notes in this case do not record the appeal panel’s decision on whether the admission arrangements complied with the school admissions code and the School Standards and Framework Act 1998. There is also no clear record of the panel’s decision on whether the panel found the admission arrangements had been properly applied to Mrs X’s daughter. This is fault.
31. The clerk’s notes show the appeal panel had some discussion about the admission arrangements but the notes do not give sufficient information to show whether the appeal panel considered the admission arrangements to be lawful. So, I cannot know, on balance, if the panel considered and made a decision on whether the admission arrangements were lawful.
32. The appeal panel questioned the school on the home to school distance for the last child admitted to the school in order to see whether Mrs X’s daughter should have been admitted to the school. The school clarified the last child admitted lived closer to the school than Mrs X. This was also noted in the clerk’s notes. So, on balance, I am satisfied the panel considered whether the admission arrangements were properly applied despite its decision not being recorded in the clerk’s notes.
33. The clerk’s notes show the appeal panel considered whether the school had made its case that the admission of additional children would prejudice the efficient education and resources at the school and whether Mrs X’s case outweighed that prejudice. The clerk’s notes record the panel’s reasons for the decision. So, I am satisfied the appeal panel properly considered these tests.
34. I do not consider the appeal panel’s failure to consider whether the admission arrangements complied with the law has flawed its decision on Mrs X’s appeal. There is no evidence to show the admission arrangements were unlawful. So, I cannot say any failure of the panel to consider this question or the failure to record the decision calls into question the panel’s decision on Mrs X’s appeal.
35. The Council has provided templates for clerk’s notes which guides them on the decisions the appeal panel should make at stages one and two. But the School and Council when acting on its behalf should ensure clerks clearly record the appeal panel’s decisions and reasons for those decisions to ensure such errors do not recur and cause injustice to future appellants.

Back to top

Final decision

36. Fault no injustice.

Back to top

Investigator's decision on behalf of the Ombudsman