Summary: Ms X complains that the independent appeal panel which heard her appeal for a school place for her son did not consider the appeal properly. We find that there was fault in the recording of the panel’s decision-making, rather than in how it reached its decision. The Council has agreed to remind panel chairs and clerks about the need to make a clear record of the panel’s deliberations especially when dealing with multiple appeals.

The complaint

1. Ms X complained that:
1. the independent appeal panel which dealt with the appeal for a place for her son did not consider all her evidence fully; and
2. she did not know how much information she could submit when she applied for a place at the School.
2. As a result she feels her application and appeal were not considered properly.

Back to top

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 by a council or an admission appeal panel, 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)

Back to top

How I considered this complaint

6. I discussed the complaint with Ms 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.
7. Ms X and the Council 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

School admission appeals – arrangements for appeal hearings

8. Statutory guidance about school admissions and appeals is in the School Admissions Code and School Admission Appeals Code, published by the Department for Education.
9. 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’.
10. 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.
11. 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.
12. A clerk supports the appeal panel. Parents can send 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.
13. 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.
14. 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.
15. 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.”

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

Council’s approach to appeal hearings

18. The Council decided not to hold face-to-face appeals at the time of Ms X’s appeal. The arrangement was that panel members, the clerk and a technical support officer met in a room together while the representatives from the admission authorities and the parents joined them by video-conference. The Council said it decided on this approach because:
• the COVID-19 infection rate was still high in the area at the time the hearings took place;
• many panel members were older and potentially vulnerable so it would limit the risks to them;
• many parents stated they preferred to have hearings held virtually;
• the set-up chosen mirrored face-to-face hearings most closely;
• no parents indicated they could not join a remote hearing, but there were arrangements for them to meet in a separate room on Council premises if they could not, with technical support available.
19. The Council sent a questionnaire to all appellants asking them about the technology they had available and whether they had suitable arrangements at home to enable them to take part in a hearing without being disturbed.

School admission appeals - decision-making

20. 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.
21. 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.
22. The panel must take into account the appellant’s reasons for wanting a place at the school, including what that school can offer the child that the allocated or other schools cannot. If the panel considers that the appellant’s case outweighs the prejudice to the school it must uphold the appeal.
23. In multiple appeals, the panel must not compare the individual cases when deciding whether an appellant's case outweighs the prejudice to the school. However, where the panel finds there are more cases which outweigh prejudice than the school can admit, it must then compare the cases and uphold those with the strongest case for admission. Where a certain number of children could be admitted without causing prejudice, the panel must uphold the appeals of at least that number of children. (School Admission Appeals Code 2012 paragraph 3.9)

What happened

24. Ms X applied for a Year 7 place at School 1 for her son, Y, from September 2022. On her on-line application form she said she was applying for a place at School 1 for medical and other exceptional reasons. She explained that Y had been suffering from poor mental health and was waiting for an assessment for Attention Deficit Hyperactivity Disorder (ADHD). She felt School 1 would be the best school for Y because of its standard of pastoral care. She attached a letter with further details which she said explained everything, and provided a supporting letter about the assessment.
25. There were over 1,000 applications for 300 places so the Council applied the over-subscription criteria. In order of priority these are:
1. Children in Council care
2. Compelling medical or other exceptional reasons
3. Sibling link
4. Living in the catchment area of the school.
26. School 1 is in a catchment area which contains another secondary school as well, School 2, which was Ms X’s second preference. In the admission year Ms X applied for there were not enough places at both schools for all pupils living in the catchment area. To accommodate the extra 29 children, the Council decided to allocate places for ten pupils at School 1 and 19 at School 2 above their Published Admission Number (PAN). The Council considered Y’s application under category 4. It allocated places within category 4 by random allocation. Y did not get a place.
27. Ms X appealed. She said she felt Y fell into category 2 of the admission criteria as there were “compelling medical or other exceptional reasons to attend the school”. She provided a letter setting out her reasons for appeal in more detail and several accompanying documents. These included a letter from Y’s primary school outlining his needs, and documents relating to his ADHD assessment.
28. There were over 50 appeals for School 1. The hearings took place remotely in two parts, with a plenary session for all appellants followed by individual hearings. Ms X attended both hearings by video-conference.
29. The appeal was unsuccessful. Ms X complained to the Ombudsman.

Analysis – was there fault causing injustice?

30. I do not consider there was fault in how the Council reached its decision to hold virtual hearings. It has explained its decision (see paragraph 18 above). It considered in each case whether the appellant had proper facilities to enable them to take part. Mrs X confirmed that she did. In any event she has not said she was disadvantaged in any way by not having an in-person face-to-face hearing.
31. Ms X complains that the panel did not consider all the information and evidence she provided properly. She sent a limited amount of information with her application for a place and provided a much larger folder of information when she appealed. The Council had to make a decision on the application, including which category in the admission criteria to place it in, on the basis of the information provided with it. The appeal panel considered whether the Council had applied the admission criteria correctly in this case. The clerk’s notes of the hearing show the panel agreed with the Council that the information Ms X provided at the initial stage of allocating places “did not demonstrate an exceptional and compelling reason why [Y’s] needs could only be met at [School 1] and no other school”. That was a decision the panel was entitled to make based on the evidence it saw.
32. Ms X complains that she did not know she could send more information with her initial application for a place. She feels if she had submitted more evidence the Council might have placed the application in category 2 rather than category 4. The Council has provided details and evidence of the advice and information it gives parents when applying for school places. It has an admissions guide on its website that explains how to apply under category 2. This says if there are medical reasons, diagnosed conditions or other exceptional reasons for wanting a place at a specific school, parents must provide supporting information from a relevant professional. This must make a ‘compelling case’ as to why the child’s needs can only be met at the preferred school. The on-line admission system requires parents to confirm they have read the admissions guidance before they submit an application.
33. The information on-line explains how applicants can upload supporting documents. It gives alternative methods of submitting documents by email or in hard copy with a paper application. It tells parents “it is up to you to provide this evidence” and “the decision will be based solely on the information you send in”. I am satisfied from the evidence I have seen that the Council gave Ms X an adequate opportunity to provide supporting evidence with her application for a school place.
34. When Ms X appealed, she hand-delivered a folder containing her appeal submission and supporting documents to the Council offices. She says the documents were labelled, and placed in a particular order to evidence the points in her argument. The Council then dismantled the folder and scanned the documents in order to send them electronically to the panel members and clerk. When Ms X received a copy of the scanned documents with the appeal papers she found her documents were out of order and no longer labelled. She wrote to the Council to query this. The Council replied explaining it had to scan the documents to distribute them for the appeal. It confirmed that the panel members would have a chance to read all the papers.
35. Ms X complains that because of the way the Council dealt with the documents, panel members did not have a chance to consider her argument properly. However she said she prepared well for the hearing in advance. The clerk’s notes of the hearing show she had an opportunity to draw attention to any particular points she wanted the panel to consider. Panel members asked her questions about the evidence she had submitted and she had a chance to sum up at the end. The decision letter and the notes of the hearing refer to points she made. I have not seen evidence that changing the order of the papers prevented the panel from considering her arguments.
36. However it is not clear from the papers how the appeal panel considered Ms X’s case in relation to others appealing in the same appeals round for School 1. The PAN for School 1 was 300. Because of the problem of some children not getting places at either of their catchment schools described in paragraph 26 above, the Council offered 310 places. This was ten above the PAN but it said it expected the numbers to drop. By the time of the appeal hearings there were 305 places allocated. At the plenary session the Council’s representative explained the unusual circumstances that had led to this decision and said it had taken legal advice. The appeal panel was satisfied with the legal basis of the Council’s approach. It accepted that the PAN should be “set at 300”. This means it agreed that there would be a detriment to the School if it admitted more than 300 pupils.
37. When the panel heard the individual appeals, it had to decide whether any of the cases were strong enough to outweigh the prejudice to the School. The panel upheld four of the appeals. Where there are multiple appeals for the same school, as here, the School Admission Appeals Code (‘the Code’) says the panel must not compare the individual cases when deciding whether an appellant's case outweighs the prejudice to the school. But where the panel finds there are more cases which outweigh prejudice than the school can admit, it must then compare the cases and uphold those with the strongest case for admission.
38. Based on the information the Council sent, it was not clear whether the panel followed the correct process as outlined in the Code. The evidence seemed contradictory.
39. The appeal decision letter Ms X received said the panel did not consider her reasons for wanting a place at School 1 were compelling enough to outweigh the prejudice to the School. Therefore the appeal was unsuccessful.
40. The clerk’s notes of the panel’s decision-making record that the panel felt Ms X had a strong case. However the notes go on to give the majority of the panel members’ views as follows:

“unfortunately there are a number of appeals where the issues are very similar this year and numbers are such that they cannot all be allowed”

“having discussed all of the appeals the 4 that have been allowed are above these and so compelling and have a high a weight of independent evidence”

“whilst this is a strong case in the light of the 4 very exceptional cases that we have allowed regretfully I do not think it outweighs the prejudice to the school.”

41. So the panel decided that Ms X’s case did not outweigh the prejudice to the School, as the decision letter says. But in reaching this decision it appeared to be comparing the individual cases, contrary to the guidance in the Code.
42. What the panel should have done, in line with the Code, is decide in each case whether it was strong enough to outweigh the prejudice, look at how many of those cases there were, and then decide how many the School could admit. Once it decided that number it would then need to rank the cases and allow the appeals of the strongest cases up to that number.
43. It is not clear from the information provided which of these two approaches the appeal panel took. In response to my enquiries the Council outlined the reasons for the four successful appeals. At one point it said it should be noted that the panel considered there were 12 cases where there was a strong case to attend School 1. However due to pressure on the School they felt the cases were not strong enough to override the prejudice to the school of taking additional pupils. Elsewhere the Council referred to Ms X’s appeal as being one of ten strong cases which nevertheless could not succeed because the school was so full and the four exceptional cases were “so truly exceptional”.
44. This account of the decision-making sounds more like the approach set out in the Code whereby the panel looks at how many cases outweigh the prejudice (although it is not clear if that was ten or 12) and then decides how many the school could admit.
45. But if that is the case it is not clear how the panel decided how many extra pupils the School should admit, in other words why it decided to allow the ‘top four’ appeals and not more or less. It has not explained, for example, why it did not consider the School could take one further pupil, bringing the number up to the 310 initially offered.
46. The Council has confirmed that the panel heard all the appeals before deciding which ones to uphold, as it should have done. However I could not be satisfied, based on the information I had seen, that the panel took the proper approach to deciding where to draw the line on the question of prejudice and whether Ms X’s case outweighed the prejudice or not. This lack of clarity is fault.
47. In response to my draft decision the Council acknowledged that the clerk’s notes were not as clear as they could have been when recording the panel’s discussions. However it explained the approach the panel actually took. It said there were forty-nine appeals for School 1 with several of them raising issues relating to the child’s specific educational needs. The panel considered all the evidence provided for all the appeals. But it felt that four of them were compelling enough to override the prejudice to the School.
48. The Council has provided brief details of the circumstances of these four other cases. While it is not for the Ombudsman to comment on the merits of the cases, I can say that they did provide evidence of circumstances that the panel legitimately took/was entitled to take/ into account in deciding whether to allow those appeals.
49. Having considered the evidence carefully, on balance my view is that the panel was not at fault in the way it determined Ms X’s appeal, but there was fault in the writing up of the panel’s discussions. The notes were not as clear as they should have been.

Back to top

Agreed action

50. The Council has agreed that within one month of the final decision on this complaint it will remind chairs and clerks of appeal panels about the importance of keeping clear notes of the panel’s decision-making, especially when dealing with multiple appeals.
51. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

52. I have found fault in the recording of the appeal panel’s decision-making. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman