Kent County Council (19 003 784)

Category : Education > School admissions

Decision : Upheld

Decision date : 18 Nov 2019

The Ombudsman's final decision:

Summary: Mrs B says the admissions appeal panel failed to properly consider her daughter’s appeal or explain its decision. The appeal panel failed to keep notes of its scoring when awarding places at appeal and the decision letter failed to properly explain the appeal panel’s decision. That did not affect the decision not to offer Mrs B’s daughter a place at the school. An apology, agreement to ensure the appeal panel keeps notes of the reasons for its scoring in future and to ensure decision letters properly explain the appeal panel’s reasoning is satisfactory remedy.

The complaint

  1. The complainant, whom I shall refer to as Mrs B, complained the admissions appeal panel failed to properly consider her daughter’s appeal or explain its decision.

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The Ombudsman’s role and powers

  1. 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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and section 34(3)
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and Mrs B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided; and
    • gave Mrs B and the Council an opportunity to comment on my draft decision.

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What I found

School Admission Appeals Code

  1. For appeals for grammar schools the code says those schools can select children for admission based on academic ability and may leave places unfilled if there are insufficient eligible applicants. It says some admission authorities for grammar schools offer places to those who score highest, others set a pass mark and then apply oversubscription criteria to those applicants that reach the required standard.
  2. Some admission authorities for grammar schools use a ‘local review’ process to decide whether children who have, for example, failed the entrance test ought to be deemed as being of grammar school standard. Such review will be completed before allocating places so children who are consequently deemed to be of grammar school standard can be considered at the same time as others. 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.
  3. An appeal panel may be asked to consider an appeal where the appellant believes the child did not perform at their best on the day of the entrance test. In such cases:
    • a) where a local review process has not been applied, the panel must only uphold the appeal if it is satisfied:
    • i) there is evidence to show the child is of the required academic standards, for example, school reports giving Year 5/Year 6 SAT results or a letter of support from their current or previous school clearly indicating why the child is considered to be of grammar school ability; and
    • ii) where applicable, the appellant’s arguments outweigh the admission authority’s case that admission of more children would cause prejudice.
  4. Panel must not devise its own methods to assess suitability for a grammar school place unrelated to the evidence provided for the hearing.

Background

  1. Mrs B’s daughter applied for a place at a grammar school but did not achieve a place. The school was not oversubscribed but the Council granted places to those who had scored 323 or more with no score lower than 107 for any individual test. Mrs B’s daughter scored 317 overall with a score of 95 in Mathematics, 103 in English and 119 in Reasoning. Mrs B appealed the decision.
  2. At the appeal the panel considered the fact Mrs B’s daughter had only recently moved to the primary school, her expected level, the lack of evidence from the school and the results of her test for another grammar school, which she had passed. Panel decided it was likely Mrs B’s daughter would cope with grammar school. Panel also decided the school could admit 29 more pupils without causing prejudice. Panel then had to consider which of the 36 appellants could take those 29 places.
  3. The Council’s procedure says appeal panel members must consider all the evidence and each member must give a score between 1 and 4. 1 is for children with a borderline case, 2 for those with a strong case, 3 for those with a very strong case and 4 for those with exceptional grounds. The Council does not guide panel members on what warrants a score of 1 compared with a score of 4. That is because the Council considers panel members need to make an independent decision based on the evidence before them. In Mrs B’s daughter’s case each panel member gave a score of 1, meaning they all considered her a borderline case. Panel gave places to appellants who scored 6 and above. As Mrs B’s daughter’s total score was 3 she did not gain a place on appeal.
  4. The Council wrote to Mrs B to tell her the outcome of her appeal. That decision letter told Mrs B panel had accepted her daughter would suit grammar school. The letter explained panel’s view the school had admitted as many as it could sustain without causing prejudice. The letter explained panel considered other appellants had a greater claim to a place based on their mitigating circumstances, test scores and/or academic suitability. The letter told Mrs B panel had considered the points she made in her appeal but did not consider that overrode the prejudice to the school.
  5. Since the appeal Mrs B’s daughter has received a diagnosis of autism.

Analysis

  1. Mrs B says the admissions appeal panel failed to properly consider her daughter's appeal or explain its decision. Mrs B says panel ignored the points she raised at the appeal and there is evidence of prejudice for the fact her daughter is autistic.
  2. I have considered the notes from the appeal panel hearing. In particular, I have considered the notes from the closed part of the hearing where the panel members considered Mrs B's daughter's case. I am satisfied panel referred in its discussions to Mrs B's daughter’s scores, her expected level and the fact she had achieved a higher score on a test for a different school. I am satisfied panel considered Mrs B's argument her daughter was suitable for grammar school given panel accepted Mrs B's daughter could cope with the pace of work at the school and was therefore suitable for admittance. So, I could not say panel failed to consider the case put forward by Mrs B. I have seen nothing in the panel's notes to suggest whether Mrs B's daughter was autistic influenced the decision. In any event, I note at the time of the appeal Mrs B's daughter did not have a diagnosis of autism. So, I am satisfied panel properly considered the appeal.
  3. There is, however, an issue with the way the decision letter explained panel's decision. The decision letter only said panel had listened to the case put forward and although it accepted Mrs B had shown her daughter would suit the school and could cope with the education offered, other appellants had a greater claim to a place based on their mitigating circumstances, test scores and/or academic suitability. The letter does not refer to the specific information panel considered. That is fault. As I said in the previous paragraph though, I am satisfied the notes from the appeal panel hearing show panel properly considered the appeal reasons put forward by Mrs B before reaching its conclusion. The issue is therefore with the way in which the decision letter is written, rather than with how panel considered the appeal.
  4. It is clear panel accepted the school could admit a further 29 pupils. In accordance with the school admissions appeals code panel therefore went on to compare the 36 pupils and upheld the 29 it considered had the strongest case. I am satisfied panel followed the right process in deciding which pupils had the strongest case by giving scores of between 1 for a borderline case and 4 for an exceptional case. Each panel member gave Mrs B's daughter a score of 1. That was not enough for her to gain a place at the school. The difficulty here though is although panel members scored each child individually they did not keep a record to explain why they had given a particular score to a child. Failure to keep a record of why panel considered Mrs B's case only a borderline one or why other cases warranted a higher score is fault. I do not criticise the Council for not providing detailed guidance to panel members on what makes up a borderline, strong, very strong or exceptional case. That is because, as the Council has noted, the panel members are independent and it is for each panel member to give the score they consider appropriate. However, I would expect each panel member to explain why they had given a score in each case. Failure to record those reasons is fault.
  5. As part of my investigation I have obtained an explanation from the three panel members about why they considered Mrs B's daughter a borderline case and what convinced them other cases should receive a higher score. Each panel member scored Mrs B's daughter as borderline and said they considered:
    • the low scores in English and Mathematics compared to the other applicants;
    • the fact Mrs B's daughter had completed two of the three subject matter papers in full which raised concerns about her ability to cope with the pace and pressure of a grammar school rather than suggesting there was an issue with time constraints in the tests;
    • the difficulty in bridging Mrs B's daughter's knowledge in the failed test subjects to gain the minimum required academic level;
    • the fact other children who had applied were of a higher academic ability than Mrs B's daughter and would therefore be more able to cope with grammar school learning;
    • there was no formal diagnosis of ADSD;
    • evidence from their primary schools that other appellants were working at greater depth whereas Mrs B's daughter's primary school evidence was that she was working at the higher end of expected, rather than greater depth; and
    • the evidence presented for Mrs B's daughter was not compelling enough to offer a place compared to other applicants.
  6. In light of the information now provided I am satisfied panel members properly considered what score to give to Mrs B's daughter and why other appellants received a higher score. As I said in paragraph 2, it is not the Ombudsman's role to comment on the merits of a decision that has been reached without fault. As panel members properly considered Mrs B's daughter's appeal and what score should be allocated to her when deciding which children to admit on appeal I cannot say the decision to refuse the appeal was reached with fault. The fault I have found concerns the content of the decision letter and failure to keep detailed notes of the scoring process. In those circumstances I do not consider the outcome for Mrs B would have been different but for the fault. I therefore recommended the Council apologise to Mrs B for the faults identified in this statement and ensure in future panel members record the reasons for giving specific scores to children who are to admitted to grammar school on appeal. The Council has agreed those recommendations.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mrs B;
    • remind appeal panel members of the need to keep a record of their reasoning when giving scores to appellants; and
    • remind clerks to appeal panels the decision letter following appeal must explain panel’s reasoning when an appeal is not successful.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs B an injustice. I am satisfied the action the Council will take is sufficient to remedy Mrs B’s injustice.

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Investigator's decision on behalf of the Ombudsman

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