Summary: Mr B complains that the Council failed to make reasonable adjustments for his son, C, when taking the Kent Test which determines eligibility for grammar school places in Kent. He also says that the independent appeals panel did not properly consider his claim of disability discrimination. The Ombudsman has found no fault in the way the Council considered reasonable adjustments for C or the way the panel considered his appeal for a place at his preferred school.

The complaint

1. Mr B complains that the Council failed to make appropriate reasonable adjustments for his son, C, who has dyslexia, when taking the Kent Test. He considers that, as a result, C was disadvantaged when taking the test, and this affected his chances of getting a place at his preferred grammar school.
2. Mr B also complains that the independent appeals panel then failed to properly consider his claim of disability discrimination with regard to the Equality Act 2010, and Government guidance.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by “maladministration” and “service failure”. I have used the word “fault” to refer to these. We cannot question whether a council’s or appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’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)
5. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
6. However, we can consider complaints about the handling of school admissions appeals and admissions arrangements. The Kent Test, including any reasonable adjustments for that Test, forms part of the admissions arrangements. Moreover, the school’s involvement in the reasonable adjustments process also forms part of the admissions arrangements and so, as set out below, is in part within the Ombudsman’s jurisdiction.

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How I considered this complaint

7. I have considered Mr B’s written complaint and supporting papers and discussed his complaint with him. I have made enquiries of the Council and considered its response and Mr B’s comments on that response. I have had regard to the relevant law and guidance and sought legal advice. I have also sent Mr B and the Council a draft decision and invited their comments.

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What I found

8. Pursuant to Section 29(6) of the Equality Act (the Act), a person must not, in the exercise of a public function, do anything that constitutes discrimination, harassment or victimisation. A duty to make reasonable adjustments applies to a person exercising a public function, i.e. to take such steps as it is reasonable to have to take to avoid a substantial disadvantage caused to a disabled person by a provision, criterion or practice or by the absence of an auxiliary aid or service.

School admissions

9. All schools must have admission arrangements that clearly set out how they will admit children, including the criteria they will apply if there are more applications than places at the school (oversubscription criteria). In some cases, the Council will be the admissions authority for the school. In other cases, the admissions authority will be the school itself.
10. The School Admissions Code 2014 (the admissions code) is statutory guidance which provides both mandatory requirements and guidelines for admissions authorities, local authorities, schools adjudicators and independent appeal panels.
11. The admissions code says that:

“1.8 Oversubscription criteria must be reasonable, clear, objective, procedurally fair, and comply with all relevant legislation, including equalities legislation. Admission authorities must ensure that their arrangements will not disadvantage unfairly, either directly or indirectly, a child from a particular social or racial group, or a child with a disability or special educational needs…”

“1.9 It is for admission authorities to formulate their admission arrangements, but they must not…h) discriminate against or disadvantage disabled children, those with special educational needs…

“1.31 Tests for all forms of selection must be clear, objective, and give an accurate reflection of the child’s ability or aptitude, irrespective of sex, race, or disability. It is for the admission authority to decide the content of the test, providing that the test is a true test of aptitude or ability.”

“1.32 Admission authorities must

a) ensure that tests for aptitude in a particular subject are designed to test only for aptitude in the subject concerned, and not for ability;

b) ensure that tests are accessible to children with special educational needs and disabilities, having regard to the reasonable adjustments for disabled pupils required under equalities legislation; and

c) take all reasonable steps to inform parents of the outcome of selection tests before the closing date for secondary applications on 31 October so as to allow parents time to make an informed choice of school – while making clear that this does not equate to a guarantee of a selective place.”

Admissions appeals for grammar schools

12. Parents / carers have the right to appeal to an independent appeals panel (appeals panel) against an admissions authority’s decision to refuse admission.
13. Some admission authorities for grammar schools operate a “local review” process to consider whether children who, for example, have not reached the required level in the entrance test should be deemed as being of grammar school standard. The local review process does not replace a parent’s right of appeal against the refusal of a place at a school for which they have applied. (Kent County Council operates such a process in the form of the Head Teacher Assessment Panel, the arrangements for which are described below.)
14. When considering an admissions appeal, an appeals panel must first consider whether:
• the admission arrangements comply with the law;
• the admission arrangements were properly applied to the case.
15. In the case of an appeal for a grammar school place, the appeals panel may be asked to consider an appeal where the appellant believes that the child did not perform at their best on the day of the entrance test. In such cases:
1. where a local review process has not been applied, the panel must only uphold the appeal if it is satisfied:

1. that there is evidence to demonstrate that the child is of the required academic standards; and
2. where applicable, that the appellant’s arguments outweigh the admission authority’s case that admission of additional children would prejudice the education of others.
2. where a local review process has been followed, the panel must only consider whether each child’s review was carried out in a fair, consistent and objective way. If there is no evidence that this has been done, the panel must follow the process in paragraph (a) above.

Admissions arrangements specific to Kent

The Kent Test

16. The Council has grammar schools within its authority area. It administers the Kent Test which is used to assess suitability of a child for a grammar school place. The test is taken in September, while the child is in Year 6. The results are then made available to parents before the closing date for secondary school applications.
17. Children taking the test are awarded a numerical score and must achieve a specific score to be considered suitable for grammar school.
18. There are three standardised multiple-choice tests which produce the scores. No writing is required in these papers; answers are given by marking the correct box on an answer sheet. The English test comprises a comprehension plus technical exercises testing spelling, punctuation and grammar. The English and Maths tests are timed at 25 minutes. The third test is a reasoning test with a 20-minute section testing verbal reasoning, followed a series of separately timed and administered non-verbal and spatial reasoning sub-tests which last between four and five minutes.
19. There is also a writing task. This is not marked and does not contribute to the test scores. Children are asked to complete this task so that there is one “reference” piece of extended writing (based on common prompts and completed under test conditions) should a child’s assessment be referred to the Head Teacher Assessment Panel (headteachers panel).

Special arrangements for the Kent Test

20. If a child has a disability or special educational needs that may affect the way that they access the test, special arrangements may be requested via the following process.
21. Parents registering their child for testing are asked on the form to confirm whether their child has special needs and that they have discussed the matter with the school special educational needs coordinator (SENCO). The following advice was also provided on the Kent Test registration page of the KCC website.

“If your child has a disability or special educational need that may affect the way they access the test, you need to discuss this with your current school's Special Educational Needs Co-ordinator (SENCO) as soon as possible. Any proposal for alternative access requirements must be made by the school by 10 July 2018.”

“When you register your child for the Kent Test online, you will need to confirm if you have discussed a request for access arrangements with your child's school."

22. As part of the general guidance about the 11+, the Council sends primary schools a standard form, with guidelines about what special arrangements can commonly be made. Schools making an application for special arrangements are invited to share the guidelines with the parents.
23. There is no single source of applicable guidance for reasonable adjustments in 11+ selection tests. However, the Council’s current guidelines take account of the number, design and type of its tests, advice over time from its test providers and other published access arrangements (such as for SATs).
24. In the summer term, the Council invites schools to identify Year 5 children who have their normal day-to-day schooling adapted to meet their particular needs. If it is known that a child intends to take the Kent Test, the Head and SENCO should formally consider what arrangements may be needed to accommodate them in the context of 11+ assessment.
25. If a school wishes to seek reasonable adjustments, it returns a form which:
• confirms the child’s SEN status;
• provides details of the nature of the child’s disability and supporting evidence;
• if the child is not disabled under the terms of the Act, clarifies why the child should be considered for adjustments and provide supporting evidence;
• indicates the support the child currently receives in school to enable access to the curriculum and includes details of recent assessments relevant to the application, confirming the conditions in which any tests were taken; and
• suggests reasonable adjustments to enable the pupil to access the 11+ tests, which would normally be based on the current support.
26. The deadline for making an application for special arrangements is normally set in the second week of July, once registration for testing has closed and primary schools are aware of who has registered.
27. A Special Access Panel of education professionals (specialist panel) then considers cases on an individual basis, with regard to the above information, supporting evidence from other professionals involved with the child, and other relevant information.
28. Specialist panels are composed of lead officers from the Specialist Teaching and Learning Service, covering physical and sensory difficulties, autistic spectrum disorders, cognition and learning, social, emotional and mental health. They are assisted by members of the SEN Provision Evaluation Team and the former Senior Adviser on SEN provision.
29. The specialist panels use the guidelines sent to schools but will consider a request for different or additional adjustments if they are clearly reasonable in the context of a selection test and do not give the candidate an unfair advantage. The panels use the guidelines and form for reference, discussing as necessary any cases which are not straightforward, and use a proforma sheet and tick boxes to record their decisions.
30. Specialist panels consider several hundred applications at meetings during July and August and decisions are sent out as they are processed. The time frame allows for each request to be considered only once.

The headteachers panel

31. Once the tests have been marked, but before sending the results to parents, test scores are sent in confidence to participating schools with a provisional assessment and explanation of the threshold scores. At this stage, head teachers may refer cases to the headteachers panel if they feel the assessment is not representative of a child’s ability.
32. The Council provides guidelines to primary school headteachers on referral to the headteachers panel, and a form to be sent to the panel. The guidelines provide examples of the type of reason why a referral might be made, and the type of supporting evidence required.
33. The decision whether to refer to the headteachers panel is at the discretion of the headteacher of the child's primary school. Parents do not have input into that decision but may see the referral form in connection with any admissions appeal.
34. The Council does not consider it practical to undertake routine monitoring of headteachers’ referrals. It has explained that in the two-week period after C took the Kent test, it marked and processed sets of tests for 15,925 pupils. 2,240 referrals were then made and 1,246 resulted in a changed assessment decision, and these were then notified to schools on 6 October before all 11+ results were released to parents on 12 October. Referrals come from schools and academies inside and outside Kent, in the state and private sector, and principally reflect the headteacher’s view that the test scores are not representative. The Council will however follow up if a specific concern is raised.

What happened

35. Mr B and his family live in Kent. In the 2016/17 school year, Mr B’s son, C, was in Year 5 at primary school. Mr B applied online for C to take the Kent Test. The Council says that Mr B’s online application confirmed that he had discussed the request for access arrangements with his son’s school.
36. The school identified C as having severe dyslexia and requested reasonable adjustments for him to take the test. The specialist panel considered the school’s request and agreed to several adjustments for C.
37. The school received the panel’s decision on 29 August 2017 and forwarded the panel’s decision to Mr B. He replied the next day and thanked the school for its help and support.
38. C then took the Kent test, but unfortunately did not reach the score required for grammar school. The provisional assessment was passed to C’s school. However, the headteacher did not consider it appropriate to refer C’s case to the headteachers panel.
39. Mr B applied for a place for C at his preferred grammar school, for which the Council is the admissions authority. As he did not meet the admissions criteria, his application was unsuccessful.
40. Mr B then appealed to the independent appeals panel. The panel considered the school’s prejudice case at a grouped hearing. The school put its case and was questioned on this. The panel concluded that admitting further children would cause prejudice. It then went on to consider the appellants’ cases and whether they outweighed the prejudice to the school.
41. The Council set out in writing the process by which it considered reasonable adjustments for C, those requested and those agreed. It also explained that it considered that C’s educational needs would best be met in a high school.
42. Mr B also set out in his written appeal why he considered the grammar school to be the most suitable school for C. He explained that both of C’s siblings had attended the school and had achieved excellent grades in their public examination results. C’s school also supported his appeal, explaining the progress that he had made in Year 6 and that the school considered that he needed to be in a grammar school environment.
43. At the appeal, Mr B presented his appeal as a claim of discrimination under the Equality Act 2010. He said that C should have been allowed to use the adjustments he currently uses in class. He said the onus was on the Council, as the admissions authority, to demonstrate that it had not discriminated against C by failing to make reasonable adjustments for him when taking the Kent Test.
44. The clerk’s notes show that the panel considered Mr B’s case. Panel members questioned him on the arrangements made for C to take the test. They also questioned the Council representative who explained that it was not feasible to undertake individual visits to assess each child given the time constraints and number of children involved in the process, but that the headteacher could apply to the panel if they felt that the test had not properly reflected a child’s ability.
45. The panel considered that the admissions arrangements had been correctly applied. It noted that the school had applied for special arrangements for C and provided copies of his SENCO’s reports. It noted the adjustments requested and agreed to and that some adjustments were either not requested or permitted. The panel was satisfied that the requested reasonable adjustments had been made.
46. The appeals panel considered the letter of support from C’s school but was not persuaded that C would cope with the pace and level of work at the school. Accordingly, it refused his appeal.
47. Mr B then complained to the Ombudsman that the appeals panel had not properly considered his claim of discrimination.

My assessment

Failure to follow departmental advice on the Equality Act

48. Mr B has suggested that the Council, as the school’s admissions authority, must follow the advice on reasonable adjustments set out in The Equality Act 2010 and schools - Departmental advice for school leaders, school staff, governing bodies and local authorities May 2014.
49. However, this is non-statutory advice. The Council must have “regard to the reasonable adjustments for disabled pupils required under equalities legislation” as set out in the admissions code, but there is no requirement for the Council to follow the departmental advice.

Reasonable adjustments made for C

50. Mr B considers that the process by which the Council considers reasonable adjustments is inadequate. He said the process did not assess C individually, involve the parents or offer the possibility of an appeal.
51. He considers that the starting point should have been the reasonable adjustments the school was making at the time of the test - Clicker 7 Software (which includes a spellcheck function, a record and speak back function, as well as adjustable font size and colour), table squares, key words, coloured overlays and 1:1 scribe. He says when C took his SATs, he had 25% extra time, a scribe, table squares and overlays.
52. The Council is exercising two functions in respect of C’s application to the grammar school. It is the local education authority coordinating admissions, and the admissions authority for the school. It is under a duty not to discriminate and to make reasonable adjustments in both capacities. I have therefore considered what aspects of this process are within the Ombudsman’s jurisdiction.
53. The Council’s procedures for making reasonable adjustments for the Kent Test involves inviting primary schools to apply using a form, asking parents to confirm that they have discussed requests with the school and arranging for a specialist panel to consider those requests. I consider that this overall procedure is within the Ombudsman’s jurisdiction because this is the exercise of a Council function.
54. I appreciate that Mr B does not consider this process to be adequate, but there is the opportunity for parental input into the process, as indicated by the Kent Test application form asking parents if they have discussed the special arrangements with their child’s’ school. The process also takes into consideration the child’s individual circumstances as explained by their school and SENCO.
55. The decision on what arrangements to put in place is also taken by a panel of individuals who appear suitably qualified to make such a judgement. The panel may decide with a reasonable degree of flexibility what adjustments to put in place to remove any substantial disadvantage, while not allowing adjustments which it considers might provide an unfair advantage in respect of abilities or aptitudes that the tests are designed to measure.
56. While there is no right of review, due to time constraints, there is the backstop of the child’s headteacher requesting a review by the headteachers panel, if they feel that a child’s result does not fully reflect their ability.
57. I consider that the Council has put in place reasonable measures to consider what reasonable adjustments may be needed. I see no fault here.
58. In considering reasonable adjustments for the Kent Test, the Council asks schools to apply rather than parents. I consider this a reasonable approach. The Council has a limited timetable in which to consider and decide on what adjustments are appropriate. The Council cannot know the specific circumstances and needs of each individual child who might apply, so it is reasonable for it to seek information from the school / SENCO who are likely to be best placed to understand the child’s needs.
59. I have therefore considered whether the primary school’s actions are within the Ombudsman’s jurisdiction. Although the school is assisting the Council in its duties to make reasonable adjustments, I do not consider that the school is undertaking a function on behalf of the Council; it is not a function of the Council to complete the application form on the child’s behalf.
60. As the Ombudsman has no jurisdiction to consider internal school matters, I consider that the Ombudsman has no jurisdiction to consider the completion of the form and the adjustments requested by the school.
61. I have also considered whether the specialist panel considered the requested adjustments appropriately. I note that the school requested that C sit in a quiet room, with extra time and rest breaks, and to be able to type his writing task.
62. The specialist panel agreed to each of these requests. It granted C 20% extra time, compared with the maximum 25%. There is no record of why the panel did not grant 25% extra time, but the Council considers it likely that this was because rest breaks and extra time are not often offered together.
63. I see no fault here on the part of the specialist panel. It has clearly considered the school’s request and agreed to each adjustment requested, as it considered appropriate.

Decision not to refer C to the headteachers panel

64. Mr B considers that C’s score should have been referred to the headteachers panel for review, but the school told him that there would be no point in appealing when the written test would contain errors due to C’s dyslexia.
65. I have again considered whether the school’s actions are in jurisdiction.
66. The appeal to the headteachers panel forms part of the Kent Test procedure as this is the process by which an assessment may be amended prior to being finalised. The Council has decided that it should be for headteachers rather than parents to have the right to appeal, if they consider that the test result does not property reflect a child’s ability. It appears therefore that the Council is effectively delegating part of the Kent Test process to schools in this respect.
67. I have therefore considered whether these general arrangements appear reasonable. Firstly, it seems to me that this is a reasonable and practical approach for the Council to follow. There are significant time pressures for the Council, given the need to review many cases and notify parents of the assessments before the closing date for secondary school admissions. Schools are likely to have knowledge of a child’s abilities and circumstances and to be well positioned to decide whether the provisional assessment properly reflects a child’s ability.
68. Although the decision to appeal or not rests with individual headteachers, the Council provides guidelines to headteachers to assist them in deciding whether to appeal and what supporting information to provide. It also seems reasonable to expect that headteachers will seek to act in a child’s best interests when deciding whether to appeal.
69. Overall, I do not consider the arrangements that the Council has put in place here are unreasonable.
70. As to the decision whether to appeal in this case, the headteacher has explained that he did not appeal against C’s provisional assessment for several reasons:
• C’s historic test scores;
• the difficulty for a panel to change the test outcome when a child has not passed despite reasonable adjustments having been made;
• his understanding that C’s written task was not likely to have been strong enough to overturn the test outcome; and
• his concerns that a failed headteachers panel referral might weaken C’s case at appeal which he felt would likely be the best route to try and get a place (he subsequently felt able to write a supporting letter in March 2018 for C’s appeal on the basis of his recent good progress).
71. The headteacher has provided clear reasons why he felt it was not in C’s best interest for him to make a referral to the headteachers panel. I see no grounds to question his professional judgement not to appeal.

The appeals panel and disability discrimination

72. Mr B has questioned the way the appeals panel considered his complaint about disability discrimination. He has referred to section 3.20 of the School Admission Appeals Code 2012 (the Appeals Code) which says:

“In considering whether a child was refused admission because of their disability, panels must have regard to the Equality and Human Rights Commission’s Code of Practice for Schools when it comes into effect… In the interim, non-statutory guidance is available on the Equality and Human Rights Commission’s website.”

73. The non-statutory guidance referred to above is the Technical Guidance for Schools in England (technical guidance). Section 8.27 of the technical guidance says that:

“Admission appeal panels are independent appeal panels set up, by the admissions authority for the school, to hear appeals against admissions decisions for maintained schools and academies. They also deal with disability discrimination claims in relation to admissions decisions for maintained schools and academies.”

74. Mr B therefore considers that an appeals panel has a specific additional role as a Disability Discrimination Tribunal. He considers that this means that a claim can be made to an appeals panel irrespective of whether the application was upheld as it is the proper body to hear claims about disability discrimination in admissions.
75. The Equality and Human Rights Commission (EHRC) explains on its website that it had originally planned to produce statutory codes of practice on the Public Sector Equality Duty. However, as the Government decided not to lay codes before Parliament, the EHRC decided to produce the original text of these codes as non-statutory technical guidance.
76. The technical guidance is non-statutory guidance, so there is no requirement for an appeals panel to have regard to that guidance.
77. Mr B considers that the appeals panel should be bound by the burden of proof referred to in section 136 of the Equality Act 2010.
78. However, appeals panels are not included in the list of Tribunals to which section 136 of the Equality Act applies. So, I do not consider that the burden of proof referred to in that section applies to appeals panels.
79. Mr B has also suggested that appeals panels are subject to the Council on Tribunals. However, this body is no longer in existence.

The appeals panel’s consideration of C’s appeal

80. Mr B says that the appeals panel did not properly consider C’s appeal.
81. An appeals panel is constituted, under the School Standards and Framework Act 1998, to hear appeals against the refusal of a school place, and whether there was disability discrimination in the admission process.
82. I consider that it was for the appeals panel to follow the usual procedures for an admissions appeal, even though Mr B presented his case as a claim for disability discrimination. That said, it was for the panel to take into consideration Mr B’s complaint that the Council has failed to make reasonable adjustments for C.
83. I have summarised above the matters that the panel considered in the course of the appeal. This included Mr B’s and the school’s case that the school would be suitable for C and that he was of grammar school ability. It also included the details of the process by which the reasonable adjustments were made, the adjustments themselves and Mr B’s arguments as to why these were inadequate.
84. It is clear from the clerk’s notes of the panel’s discussions that it considered that the Council had suitable procedures in place to consider reasonable adjustment. The panel also considered that the Council had agreed to the adjustments that had been requested. Unfortunately, in the panel’s judgment, it did not consider there was sufficient evidence for it to decide that C would cope with the pace and level of work at the grammar school.
85. I do not consider there was fault in the way the appeals panel considered the appeal, so I cannot question its decision to refuse the appeal.

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Final decision

86. I have closed my investigation into Mr B’s complaint because I have not found fault on the part of ether the Council or the appeals panel.

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Investigator's decision on behalf of the Ombudsman