London Borough of Redbridge (19 005 222)

Category : Education > School admissions

Decision : Upheld

Decision date : 07 Oct 2019

The Ombudsman's final decision:

Summary: Mrs D complains there were flaws in the procedure followed by a school admission appeal panel. We uphold the complaint finding the panel did not follow the correct decision making process for selective school appeals. We consider this may have affected the outcome of the appeal. The Council has agreed these findings and arranged a fresh appeal.

The complaint

  1. I have called the complainant ‘Mrs D’. She complains about the process followed by an independent school admission appeal panel which did not uphold an appeal for her child, ‘E’, to attend a selective grammar school in the Council’s area. Mrs D complains:
  • She did not receive papers for the appeal far enough in advance of the appeal hearing.
  • The papers sent out were incomplete with pages missing from Mrs D’s submission. While Mrs D gave copies of the missing pages to the appeal panel members on the day, she does not consider they had enough time to scrutinise them.
  • Those papers showed undiagnosed health problems E suffered when sitting the school entrance exam. They were important to Mrs D’s case which relied on the argument E underperformed during the entrance exam because of their health problems.
  1. Mrs D says as a result E’s case did not receive a fair hearing at the appeal. She considers the outcome of the appeal potentially affected as a result.

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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 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)
  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. Before issuing this decision statement I considered Mrs D’s written complaint to this office and supporting papers she provided. I also considered papers provided to us by the Council. These included the bundle of case papers considered by the appeal panel, the Clerk’s notes of the panel hearings and deliberation and the letter sent to Mrs D refusing her appeal. I also considered relevant law and guidance set out below.
  2. I also gave both Mrs D and the Council opportunity to comment on a draft decision statement which set out my proposed findings.

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What I found

  1. Independent appeal panels must follow the law when considering an appeal. The panel must first consider whether:
  • The admission arrangements comply with the law;
  • The admission authority properly applied those admission arrangements. Grammar schools can select children based on their academic ability.
  1. The panel must then consider whether admitting another child would prejudice the education of others. The appeal panel must consider the impact of admitting additional children on the school.
  2. If the panel finds it cannot admit another child without prejudicing the education of others it must then consider if the appellant’s arguments outweigh the prejudice caused to the school.
  3. For grammar school appeals, government guidance says “An appeal panel may be asked to consider an appeal where the appellant believes that the child did not perform at their best on the day of the entrance test. In such cases […] the panel must only uphold the appeal if it is satisfied:
  • That there is evidence to demonstrate 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
  • where applicable, that the appellant’s arguments outweigh the admission authority’s case that admission of additional children would cause prejudice. (School Admission Appeals Code 2012 paragraph 3.13)
  1. Panels must also follow principles of natural justice. Government guidance says an appeal clerk “must send all the papers required for the hearing […] to both the parties […] in a reasonable time before the date of the hearing” (emphasis as original). The guidance says that admission authorities “must set a timetable that […] includes reasonable deadlines […] for the clerk to send appeal papers to the panel and parties” (SAAC 2012, paragraph 2.10 & 2.11).
  2. The guidance also says the clerk “must ensure an accurate record of the hearing including the proceedings, attendance, voting and reasons for decisions” (SAAC paragraph 2.26).
  3. The appeal decision letter must contain a summary of relevant factors that were raised in the appeal and considered by the panel. It must 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. (SAAC 2012, paragraph 2.25)

The key facts

E’s application to the school and Council decision

  1. Mrs D lives within the catchment area for the school and wanted E to join the school for September 2019 admission in Year 7. The school’s published admission criteria say entrance to the school depends on pupils scoring a minimum of 104 when tested for academic ability. It advised that for September 2018 admissions, the last successful applicant achieved a test score of 108.5.
  2. E took the test in September 2018 and scored 101.1. Consequently, when Mrs D still applied for E to join the school, the Council did not offer a place.

Mrs D’s appeal

  1. Mrs D appealed the refusal of a place. In her appeal Mrs D said that at the time E sat the entrance exam they complained of headaches and double vision. Mrs D said neither her nor her husband recognised how serious the condition was. They believed E suffered headaches caused by stress. Shortly after taking the exam, E’s GP made a referral for an urgent appointment with a local eye clinic. Tests confirmed he suffers double vision. A letter from a consultant at the clinic confirming this diagnosis dates four days after E took the school entrance test.
  2. Mrs D said had she had this diagnosis she would have alerted the school when E took the test. She said E could then have had adjustments for the test. For example, having more time to take the test or having the test paper in larger type. The published admission criteria say that “any medical or physical needs the candidate may have can be taken into account” on the day of testing.
  3. With her appeal Mrs D enclosed the letter confirming E’s diagnosis from September 2018. She also enclosed a second letter from a consultant dated November 2018 confirming E suffered frequent migraine headaches resulting in frequent trips to accident and emergency. In a third attachment, Mrs D enclosed a school report card from Year 5 showing E’s level of attainment in reading, writing, science and maths. She also provided a single A4 page showing how writing appears to someone suffering double-vision.

The Council’s case to the appeal

  1. In its written case to the appeal the Council explained why it did not offer a place to E based on their test score. It said the school had a published admission number of 180 pupils in Year 7. It explained why it did not consider it could admit further pupils without prejudice. It highlighted such matters as classroom size; narrow corridors; the need for smaller class sizes in certain subjects; limits on numbers in the assembly hall, canteen and so on.

The appeal hearing

  1. In May 2019 the Council wrote to Mrs D advising of the date and time of the appeal; scheduled for ten calendar days later. The letter said, “A copy of your case history with the Authority’s statement, which will be presented to the Appeal Panel, will be sent to you about seven days before your appeal”. Mrs D also notes a Council leaflet sent to parents explaining the appeal procedure says that “We will send you a full set of the [appeal] papers at least seven days before the hearing”.
  2. Seven days before the appeal date Mrs D sent an email to the Council saying she had not received papers for the appeal.
  3. Mrs D says the appeal papers arrived three days before the hearing. The Council says they were posted a week before and so believes the postal service responsible for the delay. After reading them through Mrs D realised the papers did not contain full copies of the documents she presented with E’s appeal. The bundle omitted the second page of both consultant letters (each two pages long) and the A4 page giving an example of how writing appears to someone with double vision. On the day of the appeal Mrs D took photocopies and gave these to the Panel. She says the Clerk apologised for the oversight. There is no mention of the missing pages or Mrs D providing copies in the minutes of the appeal hearing.
  4. The appeal hearing took place in two stages. The first was a grouped appeal hearing, attended by Mrs D and other appellants. The Council presenting officer went over their case explaining why they believed admitting extra pupils would cause prejudice. The Clerk’s notes of the appeal show that parents asked questions. The Panel then retired to consider if the Council had shown such prejudice would be caused.
  5. The Clerk’s notes do not show what, if any, discussion took place. They say only the Panel considered the case ‘proven’.
  6. In the second stage Mrs D had an individual hearing with the Panel. She went over her case. The notes of the Panel refer to discussion about E having headaches. The Clerk’s notes of the Panel’s discussion refer to E having “vision issues”. The Panel noted that “parents did not flag up issues to receive special measures” on the day of the test. There is no note of the Panel discussing E’s academic ability. The notes conclude saying the Panel unanimously decided not to uphold the appeal.
  7. The Clerk to the Panel wrote to Mrs D with this decision, giving the Panel’s reasons. The letter summarised Mrs D’s case to the Panel, including noting that E had double-vision. It noted that Mrs D would have told the school had she known of E’s diagnosis at the time. It noted that Mrs D had illustrated the affect of double vision.
  8. The Panel said it did not consider the Council under a duty to comply with parental preference for E to attend the School. It said “such compliance would have been incompatible with selection under the admission arrangements” given E’s test score. It went on to say, “the question of prejudice did not arise as the child was not deemed to be of selective ability”. The Panel said while noting E’s health and Mrs D’s reasons for not reporting his condition on the day of the test he “had not achieved the pass mark [so] he could not be considered for a place at the school”.

My findings

  1. I have considered each part of Mrs D’s complaint in turn. I accept Mrs D had only limited time (as presumably did the Panel) to consider the appeal papers before the hearing. The Council’s policy suggests it will post appeal papers at least a week before the hearing. This implies appellants should have around five days to consider the papers or four days at a minimum (allowing for weekends). I consider this would meet the Admissions Code guidance of allowing a “reasonable time” to consider the papers. But this expectation was not met here. Nor did the Council send Mrs D or the panel all the papers forming her appeal. There were three pages missing from Mrs D’s submission.
  2. The delay in Mrs D receiving the appeal papers may have been outside the Council’s control. But it was at fault for not copying all her submissions. However, even it was at fault for both, I do not consider this in Mrs D not receiving a fair appeal. In the first case I am satisfied that while given limited time, both Mrs D and the Panel still had enough time to consider all relevant information for E’s appeal. From reading the Clerk’s notes and letter giving the Panel’s decision, I am satisfied the Panel members properly understood Mrs D’s grounds of appeal.
  3. I also do not consider Mrs D’s appeal disadvantaged by the Panel not seeing all her submission until the appeal hearing. I consider the key relevance of the consultants’ letters was that they showed a timeline for E’s diagnosis and confirmation of diagnosis. There was nothing in the second page of either letter which would help the Panel in deciding whether Mrs D had shown E had the underlying academic ability for the school. While the A4 sheet succinctly made its point on how double vision appears to someone who suffers from it.
  4. Therefore, I cannot uphold Mrs D’s complaint on these grounds. However, I consider the papers show another fault which has more serious consequences. Because I find the Panel did not make its decision properly.
  5. As I explained above an appeal panel considering a selective school appeal should apply a three-stage test. First, it must consider if the admission authority applied its admission criteria correctly. I do not think that is in question here. E fell short of the required mark in the entrance exam and there is no dispute about that.
  6. The fault here lies in the application of the second and third tests. The Panel said it did not need to consider the question of prejudice in its letter to Mrs D. This would be wrong as contrary to the school admission appeal code. Although the letter contradicts the Clerk’s notes which show the Panel did consider the issue of prejudice following the grouped appeals. However, the Clerk’s notes and letter are not satisfactory in explaining why the Panel considered the Council’s case proven. So, I must find:
  • Either the Panel did not consider the question of prejudice sufficiently; or
  • That its discussions were not properly recorded; or
  • That it mistakenly believed it did not need to consider the matter at all.
  1. It does not matter which of the above applies. As each justifies a finding of fault.
  2. Turning to the third test, I do not find the Panel properly considered the issue at the crux of Mrs D’s appeal. Her case rested on the argument that E did not perform to their ability on the day of the test because of their health. It is not enough the Panel recognised E’s condition and noted Mrs D's reasons for not alerting the school on the day. It also had to consider if there was evidence suggesting that E would have attained a higher score but for their health. The Panel may not have had a lot of evidence to go on. But Mrs D produced a report card and the Panel could have questioned her about this at the hearing.
  3. Yet the record shows no evidence the Panel considered this. There is no discussion in the Clerk’s notes of E’s academic ability. Its letter said E’s test score fell short of the required standard. But this merely confirmed the Council did not err in refusing E a place (‘the first test’). The Panel could not rely on this alone. There would be no point in having appeals for selective schools if the Panel relied only on the test score. A Panel can weigh the pupil’s test score in the balance when making its decision. But must also consider if there is evidence the child has sufficient academic ability notwithstanding their test score (then if applicable, it must decide if the appellant has established a strong enough case to outweigh the prejudice caused to the School). The Panel missed this key consideration. Which must result in a finding of fault.
  4. Because of the faults identified I cannot be satisfied the Panel properly considered E’s case at appeal. That causes Mrs D an injustice as but for the faults the outcome might have been different.

Agreed action

  1. The Council has agreed with the analysis set out above. To remedy Mrs D’s injustice it has now arranged for her to have a fresh appeal which will be heard within 20 working days of this decision. The appeal will be heard by a different panel and with a different Clerk.
  2. The Council should also consider if the faults identified above are likely to have affected the chances of any other appellants whose appeals were heard at the same time as Mrs D. It should also consider how Panel members and Clerks hearing selective school appeals for 2020 admissions might receive a reminder about the correct decision making process to follow. The Council will write to us with the outcome of its consideration of these matters within 20 working days of a decision on this complaint.

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Final decision

  1. For reasons set out above I upheld this complaint finding fault by an appeal panel caused an injustice to Mrs D. The Council has agreed action to remedy the injustice and provide for a fair outcome to the complaint. I can therefore complete my investigation satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman

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