Summary: Mrs X complains that her appeal for a place for her son at the School was wrongly heard by written submissions. The School is at fault as it did not give Mrs X at least 28 days in which to lodge her appeal. This denied her the opportunity of a face to face hearing. The appeal panel is also at fault as there is no evidence to show why it considered Mrs X’s reasons for wanting a place at the School outweighed prejudice to the School. The School has agreed to remedy the injustice to Mrs X by offering a fresh face to face appeal.

The complaint

1. Mrs X complains that her school admission appeal for a place for a son at the school was wrongly heard by written submissions rather than at a face to face hearing. Mrs X considers this disadvantaged her as she was not able to present her reasons for wanting a place at the school in person and she was not given the same opportunity as other appellants who were able to attend a face to face appeal in October 2022.

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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 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)

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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 my draft decision. I considered any comments received before making a final decision.

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What I found

Law and Guidance

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 (DfE).
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.
10. 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.”

11. The guidance said admission authorities would need to review any arrangements they had put in place to ensure they comply with the temporary regulations.
12. The same conditions for deciding to hold remote hearings and the suggested process for written submission appeals applied as in the original guidance.
13. The emergency regulations state the admission authority must include a deadline for lodging an appeal which is at least 28 days from the date of the notification of the decision to refuse a place.
14. The DfE issued a new School Admission Appeals Code which is effective from 1 October 2022. This again provides that admission authorities must offer the opportunity appellants the opportunity to appear in person and present their case. Appeals lodged on or before 30 September 2022 should be heard under the previous School Admission Appeals Code and emergency regulations. Appeals lodged on or after 1 October 2022 are heard under the new Code.

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.

What happened

18. Mrs X applied for a place for her son at the School in Year 3. On 15 September 2022, the School wrote to Mrs X to notify her that the governors could not offer a place for her son as Year 3 was full. It advised Mrs X that if she wished to appeal this decision she must do so by 30 September 2022. Mrs X appealed by the deadline set by the School and set out her reasons for her appeal.
19. In her appeal Mrs X explained the family had recently moved to the area. Her older child had a place at the School but her son was attending a school a significant distance away. Mrs X explained the problems this was causing.
20. The Council administers the appeals on behalf of the School. It notified Mrs X that her appeal would be held on 20 October 2022 and that it would be considered by written submissions from both Mrs X and the admission authority. This was due to the COVID-19 pandemic. The Council advised Mrs X that she and the panel would be able to submit questions before the hearing for the admission authority to answer.
21. The panel considered Mrs X’s appeal by video conference. The clerk’s notes record the panel were satisfied the admission arrangements were lawful and correctly applied to Mrs X’s son’s application. The panel also decided the admission of another child would prejudice the interests of the other children at the school. The clerk’s notes record the panel’s reasons for this decision.
22. The clerk’s notes record Mrs X’ reasons for wanting a place at the School, including her son’s long journey to and from his current school. The clerk’s notes show the appeal panel refused Mrs X’s appeal. The notes record the circumstances outlined by Mrs X in her appeal which it did not consider sufficient to justify allocating a place.
23. The clerk notified Mrs X of the appeal panel’s decision by letter.
24. Mrs X considers that the Council should have offered her a face to face appeal and it was unfair to consider her appeal by written submissions. She considers this was unfair when appeals lodged in October 2022 were offered face to face hearings.

Analysis

25. The School is at fault for only allowing Mrs X a period of two weeks in which to submit her appeal. The emergency regulations provided that admission authorities must set a deadline at least 28 days from the date of the notification of the admission decision. So, the School’s deadline was not in accordance with the emergency regulations which were applicable at this time. This fault denied Mrs X the opportunity to submit her appeal in October 2022 so she could have a face to face hearing. Mrs X may also have been able to argue her case more effectively at a face to face hearing. The panel could have further explored her circumstance and reasons for her appeal at a face to face hearing.
26. The panel did not properly consider Mrs X’s reasons for wanting a place at the School. The clerk’s notes record the factors considered by the panel when reaching its decision that Mrs X’s reasons did not outweigh prejudice to the School. But they do not show what the panel made of Mrs X’s reasons or why the panel considered her reasons did not outweigh prejudice to the School. On balance, this is fault. As a result, Mrs X cannot be satisfied that her appeal was fairly considered.
27. In order to remedy the injustice to Mrs X, the School should offer a fresh hearing to Mrs X to be heard by a different panel and assisted by a different clerk. The appeal should be a face to face hearing and heard on the admission numbers applicable at the time of the appeal in October 2022. This will put Mrs X back in the position she would have been in if the faults had not occurred.
28. It is possible the School’s error in giving appellants two weeks to submit their appeal will have affected and disadvantaged other appellants by denying them the opportunity to attend a face to face hearing. The School should therefore offer fresh face to face appeals any other appellants who were refused a place in September 2022 and who would have been offered a face to face appeal if they had been given at least 28 days in which to lodge their appeal.

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Agreed action

29. That the School will:
1. offer a fresh appeal to Mrs X to be heard by a different panel assisted by a different clerk. The appeal offered should be face to face and heard on the admission numbers applicable at 20 October 2022 when Mrs X’s previous appeal was considered.
2. offer a fresh face to face appeal to other appellants who were denied the opportunity to have a face to face hearing by the School’s failure to give them at least 28 days in which to lodge their appeal. Such appeals should be heard by a different panel assisted by a different clerk and heard on the admission numbers applicable at the time of their previous appeals.
3. by training or other means, remind appeal panels and clerks that panels must record brief reasons for why an appellants’ reasons for wanting a place at a school do not outweigh the prejudice of admitting another pupil.
30. The School (or Council on behalf of the School) should take the above action within one month of my final decision.
31. The School should provide us with evidence it has complied with the above actions.

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Final decision

32. The School is at fault which causes injustice to Mrs X. The School has agreed to remedy the injustice to Mrs X in an appropriate and proportionate way so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman