Summary: Miss D complained about the decision of an Independent Appeal Panel to refuse her daughter a place at her chosen school. The Ombudsman has found fault in the way this appeal was conducted. To remedy the injustice caused, the school has offered a fresh appeal.

The complaint

1. The complainant, whom I shall call Miss D, says a school admissions appeal panel failed to consider her case properly and her daughter, Y, should have been given a place at the school of their choice. She asked the Ombudsman to consider whether there was evidence of fault.

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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 provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
3. We cannot question whether a school admission appeal 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. (Local Government Act 1974, section 34(3))
4. 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

5. As part of my investigation I have:

• considered the complaint and information provided by Miss D;
• made enquiries of the school and considered its response;
• considered the relevant law and the relevant statutory guidance, which is the School Admission Appeals Code;
• considered the school’s admissions policy.
• spoken to Miss D;
• sent my draft decision to both parties and invited comments on it; and
• considered comments received in response.

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What I found

Admissions process

6. Under the system of coordinated admissions, parents make a single application for a school place to their home local authority.
7. All schools must have a set of admission arrangements. These are used to decide which children will receive an offer of a place if there are more applications than places available. The school’s admission authority sets the admission arrangements. In a voluntary aided school, the Governing Body is the admission authority. Notre Dame College (School M) is such a school.
8. Once local authorities have received all applications for school places, they exchange data with one another. Parents then receive a single offer of a school place from their home authority.
9. Any parent who has their application for a school place refused has the right to appeal the decision via an independent appeal panel (‘the Panel’). A clerk supports the Panel.
10. The Department for Education has published the School Admission Appeals Code (‘the Appeals Code’) to provide statutory guidance on school admission appeals.
11. Parents can send information in support of their appeal and the Clerk to the Panel circulates it before the hearing, along with information from the admission authority. Parents can attend the hearing to present their case. A representative from the admission authority will normally attend the hearing.
12. Parents and the Panel can ask the admission authority’s representative questions. The Panel will normally ask the parents questions.
13. The Appeals Code sets out a two-stage process 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 also has to 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 that admitting extra children would prejudice the school, then it must continue to the second stage of the appeal. In this stage, the Panel must balance the prejudice to the school against the appellant’s case. It must decide whether the appellant’s case outweighs the prejudice. This is often referred to as “the balancing stage”.
14. Panels will only decide whether to allow an appeal after they have heard all appeals for a particular school. Following an appeal, the Clerk writes to the parents with the Panel’s decision. The Appeals Code sets out what information this letter should include to ensure the parent understands how and why the decision was made.

School M’s admissions policy on late applications.

15. This stated that late applications received after the closing date would only be considered alongside applications made on time where there were exceptional circumstances which prevented the application arriving on time. The circumstances had to be given in writing and attached to the application form.
16. Applications received after the notification date (after places are offered) would be added to the school’s waiting list in admission criteria order.

School M’s admissions criteria

17. Where applications exceed available places, they are ranked against the following order of preference:

• One – Looked after children.
• Two – Sibling attending the school.
• Three – Baptised Catholics resident in certain parishes.
• Four – Baptised Catholics living in other parishes.
• Five – Children attending named feeder Catholic schools.
• Six – Members of a Christian faith.
• Seven – Members of other faiths.
• Eight – Parental preference.

Background to the appeal

18. Miss D’s daughter, Y, was due to start secondary school in September 2019.
19. In September 2018, Miss D submitted an online application to the local authority naming School P as Y’s preferred choice.
20. Despite this, Miss D make enquiries about a different school, School M. Miss D says she wanted Y to go there, as it was very close to their home and many members of Y’s family had attended.
21. Y attended an open day at School P. Y decided she wanted to go to School M instead because School P was too far from home. It is not clear from the evidence before me when Y changed her mind.
22. Miss D attended an open day at School M and was told she needed to complete a form and provide proof of Y’s baptism as it was a Catholic school. Miss D completed the form in October 2018. Miss D was given a numbered receipt by the school office. But she did not provide proof of Y’s baptism, so School M contacted both Miss D and Y’s school about this. Miss D says she returned this proof immediately. The proof of baptism certificate is dated 1 November 2018. It is not certain whether School M received this.
23. In December 2018, Miss D submitted a further online application to the admissions authority naming School M as her preferred choice. She did not provide any information about why the form was late. Miss D told me her father had passed away in September 2018 and she was dealing with complications arising from this in the following months. She only realised in December that she still needed to send the application form to the local authority, as well as the supplementary information she had already sent directly to School M. She says this was because she had other things on her mind relating to her father’s death.
24. By the time the second online form was forwarded to School M by the local authority, School M had already allocated the available school places to children who fell into criteria four and above. School M was over subscribed and Y’s application was treated as a late application because no exceptional circumstances had been put forward by Miss D about why the form was late.
25. On National Admissions Day in March 2019, Y was allocated a different school, School Q. Miss D was disappointed because School Q was much further away from home and Y did not know anyone else there.
26. Miss D requested an appeal of this decision. The appeal took place in June 2019.

The appeal hearing

27. The Panel was provided with a written statement setting out the reasons why admitting more children to year 7 would prejudice the efficient education and the efficient use of resources at the school. It set out the class numbers, details of children with SEN and a number of reasons why larger class sizes were problematic.
28. Miss D had also submitted a form explaining the reasons for her appeal. The reasons she gave were:

• School M was the school she applied for.
• The baptism forms were given to the school.
• School M was close to home.
• All Y’s family went to School M.

29. An independent panel heard the appeal. Also, in attendance was the deputy headteacher of School M who presented its case. At the first stage of the appeal the school presented its case that School M could not admit any more children and that the admissions criteria had been correctly applied. The Panel and parents asked a number of questions of the school representative.
30. The Panel moved to the second stage of the appeal. It looked at the case for Y to have a place at the school.
31. The school representative told the Panel that Y was on the waiting list under criteria 5 because she attended one of the feeder schools. The school received the change of preference form on 23 December 2018, two days after the list had been returned to the local authority.
32. In support of her appeal, Miss X told the Panel:

• Miss D had attended School M herself, as had other family members.
• She only lives two minutes away from School M.
• Miss D had lost her father in September 2018 and “her head was all over the place”. She had put School P on the form but then Y decided she definitely wanted to go to School M instead.
• Miss D said she had already handed the proof of baptism forms into the school.

33. In response to this latter point, the school representative said they would need to check whether it had received proof of baptism as claimed by Miss D. There is no record of whether this check took place, and if so, what the outcome was.
34. The clerk’s notes of the decision-making show the Panel was satisfied the admission arrangements had been applied properly and that admitting another child would cause prejudice. The Panel then went on to consider whether Miss D’s reasons for wanting Y to attend the school outweighed the prejudice to the school. The Panel decided it did not. Miss D’s appeal was dismissed.
35. The clerk wrote to Miss D explaining the panel had found the school was full and that admitting another child would cause prejudice. The letter detailed all of the evidence the panel considered but explained the panel found the specific reasons as to why Y’s needs could be met at school M were not sufficient to outweigh the case made by the school.
36. Factors taken into consideration by the panel were:

• Family connection to the school.
• It was a late application because Y changed her mind.
• School M close to home.
• Friends attend School M.
• Attended open evening but did not fill in the supplementary faith form.
• Y’s name was not on the original list provided by the LA.
• Y attended feeder school.

37. In determining the “balancing stage” the minutes state that the Panel members were guided by the “consideration of prejudice test” as set out in the Appeals Code. This same reason was given in the decision letter.
38. Disappointed by the decision, Miss D complained to the Ombudsman.

Analysis

39. In reaching my decision, I have looked carefully at the documents provided, particularly the clerk’s notes of the hearing and decision making, and the refusal letter sent to Miss D. I have also considered what Miss D and a representative from the school told me over the phone. I have some concerns about Miss D’s appeal. I have set these out below.

Uncertainty about whether relevant information was properly considered

40. The notes show School M’s representative explained the reasons for refusing admission and the difficulties admitting extra children would cause. The Panel and parents had the opportunity to ask questions. Miss D presented her appeal.
41. Miss D told the Panel that the form was late because Y changed her mind. But Miss D also told me that it was also late because she was in a state of grief following the death of her father and she had a lot to deal with. She said she had told the Panel about this and this is reflected in the minutes as follows, “I lost my dad in late September. Head was all over the place. I realised online we put School P. But then she said she definitely wanted to come here (School M)”. She went on to say, “I didn’t think of school, I lost my dad”. And further on, “She then changed her mind last minute. My dad was sick and died in September. It was only later on, that why it was so late”.
42. Despite there being three recorded references to her father’s death during the hearing in the context of the form being late, there is no reference to this in either the clerk’s notes from the Panel deliberations or the decision letter. While I can see that Miss D herself was candid about her daughter’s change of heart being the main reason the form was late, there was a wider context to this that was relevant and had been brought to the attention of the Panel.
43. It is not for a panel to extract the strongest case from the parent. It is the parent’s responsibility to explain their case. Miss D was given ample opportunity by the Panel to do so. It is significant that Miss D did not raise her father’s death in either the appeal form or make it explicit that this was a contributory factor during the hearing itself. Quite the opposite, she said on a number of occasions, the form was late simply because Y changed her mind.
44. What concerns me here is that is that the death of Miss D’s father was not recorded during the deliberations by the Panel or the decision letter. I would expect it to be. Even if it was only to say the Panel had noted this but was satisfied it was not the main reason the form was late, and in any event, made no difference to the outcome.
45. Understandably, this omission has left Miss X thinking that her case was not properly considered because she felt the Panel ignored what she said about her father. This should not have happened and does not follow the requirement on the Appeals Code for decision letters to contain a summary of relevant factors.
46. On balance, I have decided this was fault causing an injustice to Miss D.

Uncertainty about Y’s admissions category

47. There was additional uncertainty about what category Y had been placed in by School M. Miss D is of the opinion that her appeal was not fair because both the Panel and School M had put Y into category five, when she was actually in category three. She says she thinks this made a difference to the outcome.
48. It is accepted by School M that had Miss D applied at the right time with the correct forms that Y was in category three. Because of this, Y would have been allocated a place at School M.
49. But she was placed in category five because School M said it has not received proof of baptism. The minutes show there was some discussion during the appeal hearing about whether Miss D had or had not submitted supplementary forms to the school. It was minuted that the school would check about the forms during the appeal hearing. But there is no record that this happened or not.
50. In response to my enquiries about this matter, the School M has said that the Panel were definitely aware that Y was in category three. But this is not reflected in either the clerk’s notes or the decision letter.
51. The clerk’s notes of the decision-making state, “category 5”.
52. The decision letter refers to matters discussed at the hearing such as the reasons why she wanted to go to that particular school as opposed to School Q. The letter states that Miss D had not completed the supplementary faith form. But this is not correct. The evidence shows at least one form was completed because I have seen the receipt. It is highly probably she did also send the proof of baptism form at this time also because it is dated 1 November, although I cannot be certain.
53. The decision letter is silent on the category but refers to Y attending the feeder school, which heavily implies the school still thought she was category five. Miss D understandably feels this may have been crucial to the decision making as the cut off point was category four.
54. As before, I cannot say whether this made any difference to the outcome. Because the Panel asked a number of questions about this, it is reasonable for Miss D to have assumed that it was relevant to the Panel’s decision making. And so because the decision letter did not clarify either her correct category or how the Panel viewed this, I agree that Miss D was left with great uncertainty about how the Panel reached their decision.
55. Because of this, I have decided this was fault that caused Miss D an injustice.

The clerk’s notes and decision letter

56. I also have concerns about the Clerk’s notes which record the Panel’s deliberations of Miss X’s appeal, and if her case outweighed the prejudice to the school. These notes simply state, “The Panel were guided by the “consideration of Prejudice test” as set out in the code”.
57. In terms of whether admitting another child would cause prejudice, the notes simply state, “the school made its case”. There is no further explanation.
58. The decision letter duplicates these two statements and also fails to provide any further explanation of the Panel’s decision making rationale.
59. The clerk’s contemporaneous notes from a hearing will not necessarily show everything which happened. But paragraph 2.26 of the Appeals Code states, “The clerk must ensure an accurate record is taken of the points raised at the hearing including the proceedings, attendance, voting and reasons for decisions.” The notes should therefore reflect the key points and allow parents and third parties to understand how decisions were reached.
60. I do not consider the clerk’s notes to meet the requirements of paragraph 2.26 of the Appeals Code. This is fault. Without proper notes, it is not possible to say the Panel properly considered Miss D’s appeal. Just saying “the school made its case” and “the Panel were guided by the consideration of prejudice test” is inadequate.
61. Paragraph 2.25 of the Appeals Code says the clerk’s decision letter must contain a summary of relevant factors raised by the parties and considered by the Panel. It must also give clear reasons for the Panel’s decision, including how, and why, any issues of fact or law were decided by the Panel during the hearing.
62. I do not consider the clerk’s letter to meet the requirements of paragraph 2.25 of the Appeals Code. This is fault and casts further doubt on whether the Panel properly considered her case. The fault means Miss D cannot be clear on how the Panel reached its decision. This uncertainty represents further injustice.

Conclusion

63. I have concluded, on the balance of probabilities, that the appeal process followed by School M was sufficiently defective as to remove Miss D’s right to a fair hearing of her case. The failure to record relevant considerations and provide a proper analysis of her case have created sufficient uncertainty about the Panel’s decision-making to cause Miss D a personal injustice that should be remedied.

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Agreed action

64. To remedy the injustice caused by the identified faults, I recommended School M arrange a fresh appeal for Miss D without delay. This should be with a different panel.
65. I also recommend this decision statement be made available to the Panel to help ensure the faults identified are not repeated.
66. School M has agreed with my recommendations.

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Final decision

67. Miss D’s appeal for a school place was affected by fault. There is enough uncertainty about whether the Panel properly considered her appeal to represent injustice. The school has agreed with the Ombudsman’s recommendation that Miss D should be offered a fresh appeal to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman