Summary: The school was at fault because of omissions in the notes taken by the clerk to the independent appeal panel during the hearing. But Mrs X and Y did not suffer injustice through the panel’s failure to consider matters properly.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained about the way in which the independent admission appeal panel considered her appeal against the school governors’ refusal of a year 7 place for her daughter Y.

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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 considered what Mrs X said, together with information provided by the local authority, which provides panel services on behalf of the school.
5. I wrote to Mrs X and the school with my draft decision and considered their comments.

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What I found

The Admission Appeals Code 2012

6. The Code says that 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 the panel must then consider each appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal. There should be a clear record of how the panel considered the appeal and how it arrived at its decision.
9. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.

The published admission criteria for the school

10. As a voluntary aided Roman Catholic school, the school governors are the admission authority.
11. To apply for a place at the college, parents had to complete a common admissions form (CAF) and submit this to the local authority by 31 October 2018. They also had complete a supplementary information form (SIF) and submit this to the college by the same date. Parents of baptised Catholic children had to submit the child’s baptism certificate with the SIF.
12. This information enabled the governors to prioritise all applications in accordance with the published admission policy.
13. The oversubscription criteria in order of priority are:
1. looked after or previously looked after children;
2. baptised Catholic children attending a list of named Catholic partner primary schools;
3. baptised Catholic children who have a sibling living at the same address, who will be on roll at the college at the time of admission;
4. baptised Catholic children living in associated parishes and attending Catholic primary schools other than those listed in b) above;
5. non-Catholic children attending one of the Catholic primary schools listed in b) above;
6. children of staff permanently contracted to work at the college for a period of two years at both the time of application and of admission, or who were recruited to fill a post for which there was a demonstrable skill shortage;
7. other baptised Catholic children;
8. non-Catholic children with a sibling living at the same address who would be on roll at the time of admission;
9. other children.
14. If within any category there are more applications than places available, priority is given on the basis of distance from home to college measured in a straight line.

The school’s refusal of a place

15. The SIF completed by Mrs X was dated 10 October 2018, three weeks before the cut-off date of 31 October 2019. Mrs X had ticked the box indicating that Y was not a Catholic.
16. Mrs X told me that Y was baptised on 28 October 2018; ie three days before the cut-off date. But she had not received the baptism certificate by then. She said there was no space on the form to explain matters, although the panel had said there was, and that she could have submitted a letter from her priest.
17. So, Y fell into the last of the over subscription criteria of “other children”. She lived 0.802 miles away.
18. There were 166 parents to whom the governors could not offer a first preference place at the school. The last child to be offered a place fell into the last but one category of “non-Catholic child with a sibling living at the same address who was on roll at the time of admission”. This child lived 0.102 miles away.

Mrs X’s appeal case

19. On her appeal form Mrs X said she wanted Y to attend the college for the following reasons:
• they had always wanted a Catholic education for Y, and at the same secondary school as her brother, (who had attended there from 2012 to 2017);
• they had returned their SIF on time;
• Y was a bright and articulate child with 100% school attendance;
• the family lived 0.8 miles from the school, well within walking distance; and
• two other Catholic children who lived further away from the school had been given places there.

The school’s case for not admitting more children

20. The college had a Published Admission Number (PAN) of 300 in each of five year groups. From September 2019 it was nine over PAN overall, even without successful appeals. In summary, the governors’ case on the prejudice to efficient education of admitting more children was:
• larger class sizes. Not all students having access to practical and/or specialist subjects such as Art, Science, ICT and music;
• classes already being held in non-teaching space, as they could not re-structure classrooms in line with health and safety regulations;
• a one way system in corridors, with staff monitoring to prevent incidents that might occur as a result of overcrowding;
• overcrowding in the dining hall at lunchtime. But staggered lunchtimes were problematic in terms of availability of staff, timetabling and ability to use the area as teaching space;
• congestion on entering and leaving the building. Only those pupils accessing buses could use hall entrance. Others had to use gated side entrance;
• as a PFI college, they could not build on additional spaces and there was no availability to expand the building. Leaking from hot water pipes in ceilings would all have to be replaced over a two year period;
• lack of capacity in the curriculum for creating extra teaching groups. Teachers’ planning and preparation time had already reduced;
• a number of pupils with high SEN needs, little of which attracted extra funding;
• 305 pupils eligible for free school meals, and about 43% who attracted pupil premium requiring intervention and catch up sessions.

The panel’s decision on the case for not admitting more children

21. After hearing the school’s case on the prejudice to efficient education of admitting pupils in excess of the PAN, panel members decided unanimously to accept the school’s case.
22. The Clerk’s notes do not record either panel members consideration of whether the admission arrangements had been correctly applied, or how they reached their decision on the prejudice to efficient education.
23. But, the clerk’s subsequent letter to Mrs X telling her the outcome of the appeal hearing did explain matters in greater detail.

Mrs X’s appeal hearing

24. At her hearing late in May 2019 Mrs X further commented that:
• when she completed the SIF she had had no option but to tick the non- Catholic box because Y had not yet been baptised at that time;
• she had only been able to have Y baptised recently because the family’s priest had said they had to have attended for two years before this could happen;
• she had refused the school place the local authority had offered her;
• she wanted Y to walk to and from school as she was used to walking;
• music was important to Y; and
• Y’s brother had not been baptised, and he had attended the school.
25. Panel members noted that in a different year Y might have been admitted. But they questioned why Mrs X’s son had not been baptised, and suggested she had only had Y baptised so she could attend the school. Mrs Y replied that she was involved in a Catholic association for mothers.
26. The presenting officer on behalf the school asked Mrs X why she had not sent in Y’s baptism certificate when she had it. (Mrs X had brought evidence of Y’s baptism to the hearing with her, but not the baptism certificate itself.) The presenting officer also said Mrs X could have provided a letter from the family’s priest. As it was, they had only been able to prioritise Mrs X’s application in accordance with the evidence.

The panel’s decision on Mrs X’s appeal

27. Panel members decided unanimously that they could not uphold Mrs X’s appeal. Again, the notes the Clerk made during the hearing did not explain the factors they took into account in reaching this view. But, the subsequent decision letter to Mrs X explained matters more clearly.

The school’s further comments

28. In September 2019 the school told me it had still not received any baptism certificate for Y.
29. It said Mrs X had contacted the school querying the panel’s decision early in June. Staff had told her that Y was 117th on the waiting list. But, would be 13th when she submitted the baptism certificate.
30. In November 2019 the school told me Y was in 115th position as a non-Catholic child. But, if the school received a baptism certificate, she would be 4th on the waiting list.

Was there fault and if so, was there injustice requiring a remedy?

31. I considered there was a degree of fault because the clerk’s notes of Mrs X ‘s appeal hearing did not clearly record how the panel made all three of the decisions it had to make; ie
• whether the admission arrangements were applied correctly;
• whether the admission of further children to the school would cause prejudice to efficient education; and
• if so, whether there were exceptional reasons for admitting Y that would outweigh this prejudice.
32. But, on balance, I could not conclude that Mrs X and Y suffered injustice through this fault. I was satisfied on the evidence available to the admission authority that they could not offer Y a place. The school’s case on prejudice was comprehensive and detailed. Mrs X did not attend the group hearing. But, none of the parents who did attend could offer any effective challenge to this case.
33. Finally, there was no indication from the discussion recorded in the clerk’s notes that panel members felt there might be exceptional reasons why they should uphold the appeal and admit Y to the school.
34. While it does not change my finding of fault, I was also mindful that the appeal decision letter did contain much of the explanation that was missing from the notes.
35. In reaching this view, I have carefully considered what Mrs X told me about the lack of space on the SIF to explain the situation with regard to Y’s baptism. But the form was correct at the time Mrs X completed it. It seems to me that if matters changed before the cut-off date, the onus was on her to ensure the school knew about this. Even if the baptism certificate was not available to her at the time, she could have provided evidence from her priest that the baptism had taken place.

Agreed action

36. In response to what I said above, the school has provided a letter from the local authority confirming that in future officers clerking appeal hearings would use a proforma to ensure their notes reflected panels’ discussion in making their decisions. The local authority also provided a copy of the proforma in question.

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Decision

37. For the reasons I have explained above I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman