The Ombudsman's final decision:
Summary: Mrs B alleged fault in the way a school admission appeal was managed and run. She says it did not take account of her disabilities when deciding whether to give her child a place. There is no evidence of fault.
- The complainant, whom I shall call Mrs B, says there was fault in the way the school admission appeals panel considered her case for her child to have a place at the school.
- She says the reason for the fault relates to its failure to make reasonable adjustments for her disabilities, which meant she could not make her case as effectively as she wished.
The Ombudsman’s role and powers
- 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)
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended). Disability discrimination is a matter for the court. I am considering the actions of the appeal panel.
- If we are satisfied with a panel’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)
How I considered this complaint
- I considered the information sent by Mrs B. I also made enquiries of the school and assessed its response. I looked at the Equality and Human Rights Commission’s website and at the School Admissions Appeals Code (2012), which is statutory guidance setting out how admissions appeals should be managed. I sent Mrs B and the school a copy of my draft decision and took their comments into account before issuing a decision.
What I found
- Mrs B argues that the appeal panel acted in error when it failed to give a place at a school to her child.
- She says she was unable to access the education appeal, to the extent she would wish, because of her disabilities. She says this meant she was unable to put her views across as to why C should have a place at the school.
- According to the Equality and Human Rights Commission’s website, care should be taken to ensure disabled people are not placed ‘at a substantial disadvantage compared with a person who is not disabled’. If they do, changes to processes and procedures should be made if they are reasonable and proportionate. However, allegations that someone has been discriminated against are court matters. I am looking at the actions of the appeal panel and whether there was fault in the way it decided not to give her son a place.
- Appeals for school places are held in two stages. The first stage of an appeal is where, after assuring itself the law was followed, the panel decides whether the school is full or more pupils could attend. It does this by listening to, and challenging, the school’s case and hearing the arguments from parents and guardians. In this case, the panel decided the school was full. Once it agreed the school was full, it moved on to the second stage. This is where the panel considers the case for an individual child to be admitted. The panel must decide whether the prejudice caused to the school for having to take an additional child is outweighed by the prejudice caused to the child for not attending.
- The panel looked at Mrs B’s case but decided that her child should not be given a place. Mrs B complained to the Ombudsman.
Mrs B’s case
- Mrs B says the application process was unfair as the application had to be written. Criticisms of the application process should be presented to the admission appeals panel for them to consider.
- Mrs B criticises the venue chosen for the appeal. This would suit the majority of appellants because it was accessible for those with disabilities and in a convenient location. Mrs B says she discussed her difficulties with the clerk the day before the panel. On the balance of probabilities, there would not have been enough time to make any alternative arrangements even if those were requested or thought reasonable. The medical letter submitted to the panel does not provide any detail. There is no evidence of fault. Mrs B says this meant she could not attend the first part of the hearing in case it made her so anxious she could not return to present her individual case. I question whether this would have been any better had other arrangements been made for her participation – she would still have been anxious by the outcome.
- Mrs B is also critical of the amount of information sent to her for the appeal. This was to support the school’s case that it was full and the admission of another child, or children, would cause prejudice. The paperwork would be backed up by verbal argument at the hearing. A representative telephoned her beforehand to explain the process and could, on the balance of probabilities, have gone through the paperwork with her. I do not find the school at fault for sending Mrs B written information; Mrs B has told me that someone was able to read for her. Mrs B also made a written submission to the panel. There is no evidence of fault.
- Mrs B feels the appeal panel process was not handled correctly. When she wrote to the panel she said; ‘I may need to take additional breaks’. If she had asked at the time for additional breaks, I would expect the panel to arrange them but there is no evidence she did. The written material does not say she had to take breaks. She also said she ‘may appear extremely anxious and upset’. The panel felt Mrs B was able to put her points across and was not ‘extremely anxious and upset’. If panel members had felt she was too ‘anxious and upset’ to be able to participate in the process then I would have expected them to suggest a break. Mrs B says she was very anxious and upset before the panel hearing. There is no evidence of fault. Hearings are stressful for all parents because they want a place at the school of their choice. Mrs B also thought having the appeal take place over a period of time would have been helpful (she says she told the panel she would think of questions when she was at home and ‘may come back’). It is not clear that her needs required that and it would have been difficult for the panel to be this responsive as there would only be a fixed time allocated for all appeals. There is no evidence of fault.
- Another extract from Mrs B’s appeal letter was that she ‘may find it difficult to process information within the appeal process’. It is not clear what this means in practice. The doctor’s letter she circulated with the information did not say she would not be able to attend the appeal or would have problems understanding it. It did not say she should be invited to participate on the telephone in advance of Mrs B telling the clerk the day before the panel that she would find this difficult. There is no evidence of fault.
- Mrs B said she wanted to share confidential information with the panel but did not have the chance to do so. She says she shared this with the clerk and thought the clerk would inform the panel but she did not. The confidential information, which she shared with me, relates to a family matter; it is not something that would ‘guarantee’ a place at the school, as Mrs B suggested. Although I would expect the clerk to share this with the panel, as she was apparently asked to do so, given the information was not relevant there is no evidence of fault. Mrs B had a number of opportunities to say what she wanted and inform the panel of issues that were important to her. There is no evidence of fault.
- I disagree with Mrs B’s contention that she was not asked what the negative effects would be on her child not having a place at the school. There are several entries in the notes when Mrs B explains why C should have a place and what the negative effects would be if he did not. This comes through strongly in her written submission too. This was a majority (2:1 decision) on the part of the panel showing one member agreed it was important for C to have a place at the school.
- Mrs B did not feel the panel was representative of the wider community. This is not an allegation of administrative fault and I am not looking at it further.
- There is no evidence of fault in the way the admission appeals panel considered her appeal and decided not to give her child a place at the school.
Investigator's decision on behalf of the Ombudsman