Summary: Mrs X complains about frequent interruptions and inappropriate comments in her school admission appeal hearing. The appeal was heard remotely by appeal panel members working from home. As a result she says she did not get a fair hearing. We find there was fault in the way the hearing was conducted. The Council has offered a fresh in-person hearing with a different appeal panel and clerk. It has also agreed to draw up guidelines for the conduct of virtual hearings. This is a suitable remedy.

The complaint

1. Mrs X complained that the appeal hearing which heard her appeal for a school place for her son was not conducted fairly. The hearing took place by video-conference. She says there were interruptions, problems with technology and inappropriate remarks which meant the appeal panel did not give her case its full attention and did not consider her appeal properly.

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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 and its response to my enquiries. I considered relevant law and guidance on school admission appeals. 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

6. Statutory guidance about school admissions and appeals is in the School Admissions Code and School Admission Appeals Code, published by the Department for Education.
7. 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’.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.”

13. The guidance said admission authorities would need to review any arrangements they had put in place to ensure they comply with the temporary regulations.
14. The same conditions for deciding to hold remote hearings and the suggested process applied as in the original guidance.
15. Appeal panels must operate according to the principles of natural justice. One of these is that each side “must be given the opportunity to state their case without unreasonable interruption”. (School Admission Appeals Code paragraph 2.21)

Arrangements for appeal hearings from October 2022

16. The School Admission Appeals Code 2022 applies to all appeals lodged on or after 1 October 2022. It allows admission authorities to hold appeal hearings by video conference. It says where appeal hearings are held remotely,

“admission authorities must be satisfied that the appeal is capable of being heard fairly and transparently. In doing so they must be satisfied that the parties will be able to present their cases fully and that each participant has access to video or telephone families allowing them to engage in the hearing at all times.

School admission appeals - decision-making

17. When making the decision on an appeal, 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.
18. 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.

Ombudsman guidance

In May 2020, the Ombudsman issued guidance for Councils, ‘Good administrative practice during the response to COVID-19’. This guidance stated that basic record keeping was vital during crisis working. It advised there should always be a clear audit trail of how and why decisions were made, particularly summarising reasons for departing from normal practice.

What happened

19. Mrs X has a child, C, who was due to move to secondary school in September 2022. She applied for a place for C in Year 7 at School 1. There were 550 in-time applications for 300 places in Year 7. There are eight categories in the admission criteria for School 1. C’s application was considered in category 8. The application was not successful as C lives further away from the School than the last child offered a place in category 8.
20. Mrs X appealed against the decision refusing a place. The Council wrote to her in March 2022 with details of the appeal arrangements. The letter referred to the temporary regulations and guidance issued in April 2020 which meant that appeal hearings could take place remotely. It said it would therefore arrange a remote hearing in May or June. It explained how she would be able to access the hearing. The Council wrote to Mrs X again in May with the date of the hearing and further details about how to access it remotely.
21. Mr and Mrs X submitted further detailed information in support of the appeal. They referred to C’s anxiety, lack of friends at the allocated school and the difficulty of taking him there.
22. They attended the hearing virtually from different places. Directly after the end of the hearing and before she had received the appeal panel’s decision, Mrs X wrote down an account of what had happened at the hearing. She said the conduct of the hearing had left her and her husband “in dismay”. She set out some of the problems as follows:
• a panel member walked off camera to answer the doorbell to take delivery of a parcel;
• the same panel member spent much of the meeting adjusting her equipment, causing it to fall on the floor with the camera showing a sideways view;
• the clerk stopped the meeting to answer the door which she thought was for a parcel delivery;
• this prompted a discussion about the difficulties of working from home, in which one panel member made inappropriate comments about how participants might be dressed.
23. Mrs X said she felt the behaviour was unprofessional, interrupted the flow of the meeting, and made her feel like she was “an inconvenience”. She said with all these distractions it did not feel like a fair appeal.
24. The appeal was unsuccessful. The decision letter said the panel found the Council had made out its case that School 1 could not admit further pupils without causing prejudice to those at the School. It considered Mrs X’s reasons for wanting C to attend School 1 were not strong enough to outweigh the prejudice.
25. Mrs X complained to the Ombudsman about the conduct of the hearing. As well as the problems she had noted, she said at one point in the hearing her husband had lost connection. She said the clerk had assumed Mr X had deliberately left the meeting, but this was not the case and she had to explain that he wanted to re-join. So he missed a section of the hearing. Mrs X said the interruptions had disrupted her flow when she was presenting her case. She said she was explaining sensitive issues but felt the panel members were not taking her case seriously or giving it their full attention. She explained she was reluctant to make any objections during the hearing in case it had any impact on the panel’s decision.
26. In response to our enquiries on the complaint the Council said it had not been aware of the problems Mrs X described. It said it was sorry to hear of her experience and confirmed it considered the type of interruptions she referred to were unacceptable. It offered to arrange a new in-person appeal hearing, with a different clerk and panel members.

Analysis – was there fault causing injustice?

27. I have no reason to doubt Mrs X’s account of the hearing. She wrote down her thoughts immediately after the hearing finished. The Council has not denied there were problems with the hearing. It has explained that one of the interruptions Mrs X referred to was not to take delivery of a parcel but to answer persistent knocking at the door from someone wanting to report a COVID-19 related health issue. It said the clerk explained the situation and apologised for the interruption. Nevertheless I am satisfied on balance that there was fault in the way the hearing was conducted.
28. I do not know if this affected the decision. I have decided I do not need to investigate the panel’s decision-making as the Council has offered to arrange another hearing. But whether or not it did affect the decision, the problems with the hearing left Mrs X with a feeling of distress and anxiety about whether the panel considered her case properly. That is an injustice to her.
29. I also have some concerns about whether the Council properly considered the format of the hearings held for School 1 in June 2022. By this time face-to-face hearings were allowed to take place again. The letter to Mrs X about the appeal arrangements referred only to guidance from April 2020, with no details of any more recent review. However I do not need to investigate this issue further as the Council has offered Mrs X an in-person hearing, and the new Admission Appeals Code allows admission authorities to conduct hearings remotely. So further investigation into the decision-making around the June 2022 appeal arrangements would not achieve any more for Mrs X.

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Agreed action

30. The Council has offered to arrange a fresh in-person hearing with different panel members and a different clerk to re-hear Mrs X’s appeal. The Council should make the arrangements within one month of the final decision on this complaint.
31. The Council has also agreed to produce guidelines for panel members about the conduct it expects during virtual hearings, to ensure they act professionally. It should do so within the next three months and include advice for appeal panel clerks in the guidelines. The Council says it will circulate the document with school appeal papers for future hearings.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have found there was fault in the conduct of the appeal hearing in Mrs X’s case. I am satisfied with the action the Council has agreed to take to remedy the injustice to Mrs X and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman