Summary: Mr X complains of fault in the way a panel conducted a school admission appeal, denying his daughter a place. The panel misdirected itself by applying the wrong standard for academic suitability. The Council should arrange a fresh appeal with a new panel.

The complaint

1. The complainant, whom I shall call Mr X, complains a school admission appeal panel was at fault by failing to consider the case he put forward.

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The Ombudsman’s role and powers

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)
3. 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)

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How I considered this complaint

4. I read Mr X’s complaint and documents provided by the Council, then spoke to Mr X on the telephone. I made enquiries of the Council as some of the documents I needed were missing. I considered the further documents the Council sent me. I took account of the school Admission Appeals Code 2012 (the Code). I considered admissions documents available on the Council’s website. I shared a draft of this decision with both parties and invited their comments. I considered those I received.

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What I found

Context

5. Mr X applied for a secondary school place for his daughter, Z at a selective school that ranks children in the order of test scores. These are calculated in a way that gives an average score not always in whole marks. Z had taken the 11 plus test, but her score was below that of the last successful applicant. So, the Council refused the place. Mr X appealed against the refusal, making the case that Z had been affected by the death of her grandmother before the 11 plus test and would otherwise have scored more marks.
6. Mr X says the panel did not consider the effect on Z of her grandmother’s death. He also says panel members made comments about the school being full during the first stage of the appeal that show they were not impartial.

What should happen?

The first stage of an appeal

7. In cases like this, admission panels must follow the Code by considering appeals in two stages. The first stage decides prejudice. In layman’s terms, the panel must decide if the school is full or could take more children. If the panel finds the school is not full, it can admit more children, either all those who appeal, or those with the strongest cases, if there are too many. The first stage is often done as a group, where all the parents as well as the panel can question the person who presents the school’s case that it is full. If the panel finds the school is full, it must move on to a second stage.

Selective schools and the first stage

8. In cases involving schools that select by ability, such as this, the issue of prejudice is not relevant in all circumstances. If there are too few children of the required standard set by a base level pass mark, places can be left unfilled.

The second stage of an appeal

9. The second stage decides if the prejudice to any child not admitted is greater than that to the school if s/he is allowed a place by the panel. This means the panel must balance the needs of the full school against the case put forward for each child. The second stage is always done individually for each child.
10. At the second stage, the panel must consider the case a parent puts forward, leaving notes that make it clear what led it to its view.

Selective schools and the second stage

11. Again, in selective cases, it is also relevant whether a child’s ability is of the required standard. Where there is no local review of results, which there was not here, the panel must satisfy itself whether the child’s ability is of the required standard. This is stated in some cases, such as this, as a minimum score or pass mark in the 11 plus test. This is separate from the issue of prejudice. And the minimum standard may not be the same as the mark of the last successful child. Failing to gain the same score as the last successful child does not, in cases where there is a lower base level pass mark, mean a child between the two scores is not of the required academic ability. It merely means the child did not score highly enough to gain a place in a given year.

Our authority and summary of panel role

12. We have no authority to find fault where a panel carries out the procedure properly. And we cannot reach our own view whether the decision was “right” if there was no fault in the panel’s actions.
13. To sum up, admitting a child at an appeal requires a panel to satisfy itself that the child is of the required academic standard and that the child’s case is stronger than the school’s case for prejudice.

The decision letter

14. After the hearing, parents must receive a decision letter. It must state what the panel considered. It does not have to be exhaustive, but it must summarise what took place. It must be consistent with the clerk’s notes of the hearing.

Was there fault in this case?

The first stage

15. In response to my enquiries, the Council supplied a copy of the school’s case that it was full. It also gave me a copy of the clerk’s notes of the first stage. These show the panel considered the case presented that the school was full. They also show the panel and parents questioned the person who represented the school. The panel decided the school had proved its case.
16. It would have been more helpful if the clerk’s notes had recorded the reason or reasons that led the panel to the decision the school was full. But the notes had already laid out the school’s case in detail, and the questions asked. In short, the school’s case was that the age of its buildings meant pupil movements were already a problem and that extra planned places in a new building would have no effect in this year. On the balance of probabilities, it is more likely than not that it was this reason that led to the panel’s decision. While specifically stating this in the notes would have removed all doubt, it is self-evident what the panel considered. I do not find it at fault.
17. There is no evidence in the clerk’s notes of two comments Mr X said panel members made about the school being full, which he said showed a lack of impartiality. Two of the panel members also provided responses to my enquiries. Neither accepted anyone made the comments. However, even if a panel member had made a comment about the school being full, that would not have contradicted the available evidence. I do not find the panel at fault here.

The second stage

18. The clerks’ notes of the second stage of the appeal show Mr X made his case about how the death of Z’s grandmother had affected her performance in the 11 plus test as well as other points. They also show the panel asked Mr X questions. These notes summarise Mr X’s case at the end, before concluding it was not enough to make up the gap in marks. The gap between Z’s score and that of the last successful child was about six marks. The notes also state the school had made its case at the first stage.

The decision letter

19. It is here that the decision letter after the appeal is relevant. It stated that prejudice, while proven, was not the reason why the panel refused the appeal. Instead, it stated that Z had not met the required standard.

Applying the wrong standard

20. However, the Council has confirmed that, while Z scored about six marks below the last successful child, there is a lower minimum pass mark. This is referred to on the Council’s website in guidance to parents about the 11 plus arrangements. This pass mark is the lowest score at which a child is of the required standard and can be admitted to the school or allowed to remain on the waiting list. If there are too few children above this mark, the school can leave places unfilled. Significantly, Z scored more than this mark.
21. The claim in the letter that prejudice was not relevant to Z’s case is not correct. While she did not reach the mark needed to gain a place in 2019, she exceeded the lower mark to meet the academic standard to be eligible for admission if places became available.
22. While the Council has said that the pass mark only meant a child was of the required academic standard in specific circumstances, none of the evidence I have seen stated that the pass mark only applied to particular groups of children.
23. The panel should have found Z was of sufficient standard to be considered for a place at appeal because she had scored enough marks to exceed the minimum pass mark. It should also have considered the case put forward by Mr X, which included, but was not limited to, the effect of her grandmother’s death on her score in the test. It could then have refused or upheld the appeal without fault.
24. Instead, the clerk’s notes show the panel decided Z should not have a place because the gap to the last successful child was too great to be explained by the case Mr X put forward. The decision letter adds that prejudice was not relevant because Z was not of the required standard. But this was the wrong standard for academic suitability, about six marks higher than the true base level set by the minimum pass mark. It addressed only whether Z would have scored six extra marks but for her bereavement. I therefore find the panel failed to properly consider whether Z was of the required ability by applying the wrong standard. I also find it failed to balance the potential prejudice of Z and that of the School. This was fault.

Injustice

25. Mr X does not know if a panel acting without fault would have upheld his appeal.

Agreed action

26. To remedy the injustice caused by fault, the Council will arrange a fresh appeal with a new panel and clerk at its earliest convenience and within the timescale laid out in the School Admission Appeals Code 2012.

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Final decision

27. I have upheld the complaint and closed the case as the Council will provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman