Summary: Mrs B complains that the independent appeal panel failed to properly consider her appeal against the refusal of a place for her son, C, at his preferred school. The Ombudsman finds the appeal panel was at fault in that it disregarded information provided by C’s head teacher and by medical professionals. The Council has agreed to remedy for the injustice caused by offering Mrs B a new appeal.

The complaint

1. Mrs B complains that the appeal panel failed to properly consider her appeal against the refusal of a place for her son at his preferred school.

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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 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)

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How I considered this complaint

4. I have considered:
• Mrs B’s comments;
• all the information presented to the appeal panel, the notes taken by the clerk during the appeal hearing and the panel’s decision letter following the appeal; and
• the current School Admission Appeals Code.
5. I have written to Mrs B and the Council with my draft decision and given them an opportunity to comment.

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What I found

6. Independent appeal panels must follow the law when considering an appeal. The panel must consider whether:
• the admission arrangements comply with the law; and
• the admission arrangements were properly applied to the case.
7. The panel must then consider whether admitting another child would prejudice the education of others.
8. If the panel finds there would be prejudice, it must then consider the appellant’s arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
9. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgement about the evidence it hears.

The application

10. Mrs B made an on-time application for a place for her son, C, in Year Seven. School X was her first preference. C was offered a place at his fourth preference school, School Y. Mrs B appealed.

The appeal

11. The Council’s written case stated that the published admission number (PAN) is 195. The Council had offered places up to the PAN. It stated all available places had been allocated in accordance with the admission rules. It argued that any additional child would place more pressure on teaching time and school facilities and would prejudice efficient education and the efficient use of resources at the school. The Council explained that: there were health and safety risks because of overcrowding in corridors and social spaces; science and technology practical lessons were often taught in standard rooms without proper facilities due to lack of specialist rooms; and there was insufficient space in the dining room which meant that pupils had to consume food in many areas of the school.
12. At the first stage of the appeal hearing the Council presented its case. The clerk’s notes record the panel members and parents then asked questions of the presenting officer.
13. The appeal panel then heard individual appeals. Mrs B attended the hearing and put forward her case. She explained she was concerned about C’s psychological welfare and well-being because he was in a small class at primary school and one of his classmates had died which had been extremely traumatic for all the children. She said she had sought independent advice from a clinical psychologist who had written a letter in support of the appeal. Several of his peers would be attending School X in September and it was important for him to be with them. None of his friends would be attending School Y. Mrs B explained C had become extremely withdrawn and isolated since discovering he would not be moving to secondary school with his friends. The panel asked Mrs B questions.
14. Mrs B had submitted supporting evidence with her appeal including a letter from C’s current head teacher and letters from two medical professionals, one of which was involved with the care of C’s sibling and the clinical psychologist whom she had consulted for advice.
15. Mrs B says the presenting officer stated during the hearing that C’s head teacher should not have written a letter of support and this was unacceptable. The clerk’s notes state Mrs B “was not aware couldn’t provide letter from head teacher”.
16. The clerk’s notes of the decision-making show the panel was satisfied the admission arrangements comply with the law and that they had been correctly and impartially applied. The panel was satisfied the admission of an additional child would prejudice the provision of efficient education or efficient use of resources at the school. In reaching this decision it noted: there were already several children over PAN across the school; the lack of adequate dining facilities; and the fact that science and technology subjects were taking place in non-science rooms.
17. The panel then went on to consider Mrs B’s case for C to be admitted to the school even though it is full. This is known as the ‘balancing stage’ where the prejudice to C if he is not given a place is balanced against the prejudice to the school if he is.
18. The clerk’s notes show the panel considered Mrs B’s arguments but state that the panel gave no weight to the head teacher’s letter or the doctors’ letters. The panel noted School Y was close to the family home and that other pupils from C’s class had been offered places there. The panel decided the prejudice to C did not outweigh the prejudice to the school.
19. The clerk’s decision letter to Mrs B states that the panel was “unable to take the additional evidence you provided into account because neither doctor has [C] under their care and, as the local authority representative explained to you, we are unable to take head teacher’s letters of support into account”.
20. This is incorrect. The code of practice states at paragraph 2.13 “Panels must not allow representatives of schools to support individual appeals for places at their school, or by providing letters of support for appellants. Such support could create conflicts of interest and in fairness to other appellants”. This refers to representatives supporting appeals for places ‘at their school’ i.e. the school for which the child is appealing. This does not apply in this case because the letter of support was from C’s current head teacher, not the head teacher of School X. There is nothing in the code of practice which states that information from the child’s current school cannot be submitted as evidence in support of the appeal.
21. I find the panel misunderstood the code and disregarded the letter from C’s head teacher because of this misunderstanding. This was fault.
22. In addition, I find the panel was at fault in disregarding the medical evidence submitted by Mrs B in support of her case. It is for the panel to decide how much weight to give to the medical evidence. But the panel was wrong to decide that it could not take the evidence into account at all because the doctors did not have C under their care. The information was still relevant to C’s appeal. The panel should have considered this evidence and then decided how much weight to give to it.

Injustice

23. The failure to consider the evidence submitted by Mrs B in support of her case caused her a significant injustice. She will never know whether the outcome would have been different if the panel had considered this information.

Agreed action

24. The Council has agreed that, within one month of the Ombudsman’s final decision, it will offer Mrs B a new appeal which will be considered by new panel and a new clerk.

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Final decision

25. I have found evidence of fault in that the panel disregarded the evidence Mrs B provided in support of her case. This causes her a significant injustice because it raises doubt as to whether the outcome of the appeal could have been different if the panel had considered this information.
26. I have completed my investigation as the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman