Summary: The Ombudsman does not uphold Miss X’s complaint about how the appeal panel considered the impact of a gang related incident on her daughter. However, there were other faults in the way the panel considered Miss X’s appeal for a school place. This means Miss X cannot be sure the panel considered her appeal properly. The admission authority will offer a fresh appeal for Miss X and remind all clerks of the requirements set out in the Appeals Code for recording decision making and issuing decision letters.

The complaint

1. Miss X complains the appeal panel did not properly consider the most important part of her submission, about the death of a relative in a gang-related incident. She says there are implications for her daughter attending her catchment school and she fears for her safety. She would like her daughter to be admitted to the 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 panel made the decision. 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)

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How I considered this complaint

3. I have considered the complaint made by Miss X.
4. I considered the admission authority’s comments on the complaint and the documents it provided in response to my enquiries.
5. I have given Mrs X and the admission authority an opportunity to comment on my draft decision and I will consider their responses.
6. I took account of the Ombudsman’s focus report ‘School admissions appeals: are parents being heard?’ published in September 2014.

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What I found

7. All schools must have admission arrangements which set out how they will admit children, including the criteria they will apply if there are more applications than places at the school.
8. In the normal admissions round, parents and carers apply to the council in which they live for places at their preferred school. Councils must provide a common application form which enables parents and carers to express their preferences.
9. If a school is oversubscribed, the admission authority must rank the applications in order against its oversubscription criteria and send the ranked list to the council. The council then sends parents or carers an offer of a place at their highest preference school where a place is available.
10. Any parent or carer who has their application for a school place refused has the right to appeal the decision via an independent appeal panel. The admission authority must appoint a clerk who is independent of the school and appoint an independent appeal panel to hear admission appeals.
11. The Department for Education published statutory guidance for admission authorities on how appeals should be heard in the School Admission Appeals Code.
12. Parents and carers can submit information to support their appeal which the clerk circulates before the hearing, along with information from the admission authority. Parents and carers can attend the hearing to present their case. A representative from the admission authority will also normally attend the hearing.
13. The Appeals Code sets out the two stages for considering appeals:
• In the first stage, the Panel examines the decision to refuse admission and considers whether the admission authority took the decision properly. It must decide whether admitting extra children would “prejudice the provision of efficient education or the efficient use of resources” for those already at the school. If the Panel decides admitting extra children would prejudice the school, then it must continue to the second stage of the appeal.
• At the second stage, the Panel must balance the prejudice to the school against the appellant’s case to admit the child. It must decide whether the appellant’s case outweighs the prejudice.
14. The clerk must be sure to take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
15. The appeal panel must communicate its decision in writing, including the reasons for its decision, to the appellant, the admission authority and the council. The decision letter must be easy to understand and must contain a summary of relevant factors which were raised by parties and considered by the panel. It must also provide clear reasons for the panel’s decision.
16. Archbishop Beck Catholic College is a voluntary aided school and its governing body is its admission authority.

What happened

17. Miss X applied for a school place for her daughter in the normal admissions round. As there were more applications than places available, the admission authority used its oversubscription criteria to decide which children should be offered a place. Miss X’s daughter was not offered a place and was instead offered a place at another school which still had places available.

18. Miss X appealed the decision not to admit her daughter to the school. In her written submission she cited concerns about after school care, her daughter’s emotional and educational needs, and extra-curricular interests. She included supporting letters, certificates and an assessment report from the local council’s special educational needs service.

19. The appeal was heard in May 2019. The admission authority provided me with a copy of the clerk’s notes. During stage one, the admission authority’s representative explained why admitting more pupils would cause prejudice to the school. The panel and parents asked questions.
20. The notes do not say whether the panel agreed there would be prejudice to the school. However, it continued to hear the second stage of the appeal.

21. At the second stage hearing, Miss X explained why she wanted her daughter to attend the school, including her social and emotional needs. The panel asked questions. Towards the end of the hearing, Miss X shared information about the murder of a relative and the concerns she had because of this.
22. Miss X told the Ombudsman the murder was gang related and she was concerned for her daughter’s safety if she attended her nearest school. In response to my draft decision, the clerk of the panel said Miss X had not told the panel the murder was gang related. The clerk’s notes do record Miss X’s comments about a relative being murdered but do not say it was gang related.
23. The panel discussed Miss X’s appeal. The clerk’s notes show the panel decided the admission authority had applied its arrangements correctly and impartially. It said the admission authority had ‘made its case’ but does not say how the panel arrived at this conclusion. The clerk’s notes say the panel carried out the balancing stage, considering whether the prejudice to the school in admitting a further pupil outweighed the merits of the individual case. The panel decided to dismiss the appeal and did not offer Miss X’s daughter a place, but the clerk’s notes do not show how the panel arrived at its decision.
24. After the appeal hearing, the clerk wrote to Miss X to explain the appeal had not been upheld. The letter sets out a summary of both the admission authority and Miss X’s case. The letter states what the panel decided but does not say how it arrived at its decision. In response to my draft decision, the clerk said he did not want to cause upset by referring to the murder in the decision letter.
25. Miss X complained to the Ombudsman in June 2019.

Analysis

26. I have not seen evidence in the clerk’s notes, or in the decision letter, of how the panel considered the issue of prejudice, or even if the panel decided there was prejudice to the school in this case. The clerk’s notes do not show how the panel considered the evidence presented and reached a decision. The panel may well have properly considered the issue of prejudice but there is no evidence of this in the information I have received. Without this, I do not consider the requirements of the Appeals Code have been met. This is fault and means Miss X cannot be sure the panel considered her appeal properly. This has caused Miss X an injustice.
27. There is a dispute between Miss X’s complaint and the clerk’s notes of what was said at the panel. It is therefore not possible for me to make a finding on whether the panel was aware the incident Miss X referred to was gang related.
28. However, I do have concerns about the panel’s consideration of Miss X’s case at the second stage of the appeal. The clerk’s notes and decision letter say the panel “considered the case and after considerable thought and deliberation felt that overall there was a greater prejudice to the school”. But they do not say how it balanced the information provided by Miss X about her daughter’s individual circumstances against the prejudice to the school. The records I have reviewed do not allow me to understand how the panel reached its decision. This is fault. As above, it means Miss X cannot be confident the panel considered her case properly. This is an injustice as it leaves Miss X with uncertainty that her reasons for wanting her child to attend the school were properly considered and understood.

Agreed action

29. To remedy the injustice caused by the faults identified, the admission authority will:
• offer a date for a fresh appeal for Miss X’s daughter, with a different panel and clerk.
• issue a reminder to all clerks of the requirements set out in the Appeals Code for recording decision making and issuing decision letters.
30. The admission authority will provide the Ombudsman with evidence it has completed the recommendations within six weeks of the final decision.

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Final decision

31. I do not uphold Miss X’s complaint about how the panel considered the impact of a gang related incident on her daughter. However, I do find fault in the way the panel considered Miss X’s appeal for a school place. Miss X has been caused an injustice by the actions of the admission authority and it will take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman