Summary: the Clerk’s failure to make a record of the Panel’s voting at both stages of Mr X’s school admission appeal hearing was fault. But this fault did not cause injustice to Mr X. Other records from the appeal hearing confirm the Panel members had decided to refuse his appeal.

The complaint

1. I shall refer to the complainant as Mr X. He complains about the way the Independent Appeal Panel considered his admissions appeal for a secondary school for his daughter.

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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 have:
• considered Mr X’s complaint and spoken to him;
• considered the Council’s comments and the relevant appeal documents and records, including the Clerk’s notes;
5. I sent Mr X and the Council my draft decision and gave them an opportunity to comment on it.

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What I found

6. The Department for Education issued the School Admissions Appeals Code (“the Code”) in 2012. This statutory guidance sets out the process councils must follow when a parent appeals against a decision not to offer their child a place at their preferred school. For admission appeals to secondary schools, there is a two-stage process.
7. At the first stage, the appeal panel must consider whether the admission arrangements complied with the law and were “correctly and impartially applied in the case”. It must then decide whether “the admission of additional children would prejudice the provision of efficient education or the efficient use of resources”. If it finds the admission arrangements did not comply with the law, or were not applied properly, or there is no prejudice, it must uphold the appeal. In all other cases, the appeal proceeds to stage two.
8. At the second stage, the Code says:

“The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted to the school. It must take into account the appellant’s reasons for expressing a preference for the school, including what that school can offer the child that the allocated or other schools cannot. If the panel considers that the appellant’s case outweighs the prejudice to the school it must uphold the appeal.”

9. Enfield Council arranges for the stage one and two appeals to be heard on different days. At stage one, the Council and a representative from the school present the case against admitting an extra child. This takes place in a group hearing attended by multiple appellants. Each appellant returns on a later date to present their individual case to the panel in a private stage two hearing.
10. A clerk must be present at the Panel hearings. The Code says:

“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” (paragraph 2.26 of the School Admissions Appeals Code 2012)

11. Enfield Council arranged for a legal clerk from a barristers’ chambers to act as the clerk to the Panel for these appeals.

What happened

12. Mr X’s daughter, whom I shall refer to as Y, is 11 years old. She is due to start secondary school in September 2019.
13. In September 2018 Y’s mother submitted an online application for a secondary school place. She expressed a preference for six secondary schools ranked in order. The first preference was School Z.
14. On 1 March 2019 the Council wrote to offer Y’s mother a place at her fourth preference school. It could not offer her a place at any of the higher preference schools. She refused that offer.
15. The letter explained that School Z had received more applications than there were places available. As it was over-subscribed, places were allocated in accordance with the Council’s published admissions criteria. Y’s application was considered under the lowest priority category: home to school distance. The last child offered a place under this criterion lives 0.761 miles from the school. Y lives 1.158 miles from the school. The Council put Y on the waiting list.
16. In mid-April Mr X appealed against the decision not to offer Y a place at School Z. On the form, he gave the following reasons for his appeal:
• School Z’s location is within easy travelling distance from Y’s home and in an area she knows well;
• The school would support Y with gymnastics - she competes in national club competitions;
• Y shows promise in the performing arts and the school would support her with this;
• School Z is outstanding and the most suitable school for Y.
17. The Council’s School Appeals Service wrote to Mr X in late April. It explained the appeal would be heard in two stages on different days. It confirmed the stage one hearing – referred to as the “education case” - would take place on 20 May. It told him the names of the three Panel members.
18. In early May the Schools Appeals Service wrote to Mr X with an appointment for the stage two individual Panel hearing on 23 May. The letter explained what would happen at each hearing. It said the following documents were enclosed for Mr X to read before the hearing:
• Advice and notes for parents;
• A copy of his appeal form;
• A statement from the Headteacher of School Z;
• A statement from the local authority (including details of the number of applications made, the number of places available and how the Council allocated places by following the published admissions criteria);
• A “gold sheet” – this explained the law about “prejudice” , School Z’s published admissions number and the impact of admitting more children on teaching and learning.
19. Mr X attended the stage one and stage two hearings. He told me he does not remember getting a written statement from the Council before the stage one hearing.
20. Mr X has not pointed to any fault in the conduct of the stage one hearing on 20 May. I have read the Clerk’s notes. They show the Panel members asked the Headteacher and the Council’s representative questions about the allocation of places under the distance criterion and whether there was evidence of any fraudulent applications. A Panel member also asked about the allocation of some places on medical grounds. The Headteacher then presented information about the capacity of the school, and class sizes in different key stages and the sixth form. He also provided information about the physical capacity and layout of the school buildings. He answered questions put by Panel members and some parents.
21. The Clerk’s notes at the end of the hearing record the Panel’s decision that:
• it was satisfied the admissions arrangements complied with the law and were correctly applied;
• it was satisfied, after considering the Headteacher’s evidence, that the admission of additional children would prejudice the provision of efficient education and the efficient use of resources.
22. There is no record in the Clerk’s notes of the voting by the Panel members at the end of stage one.
23. Mr X returned on 23 May to put his case at the individual stage two hearing. A representative from the Council explained School Z was full. She confirmed that the alternative school offered had been refused. The Panel then invited Mr X to put his case and explain the reasons why his daughter should be offered a place.
24. According to the Clerk’s notes, Mr X spoke about:
• The ease of the journey to School Z;
• The modules offered by the school in areas such as performing arts and gymnastics which matched his daughter’s strengths and interests;
25. All three Panel members asked Mr X questions about his daughter’s participation in gymnastics and whether this was a factor in the decision to express a preference for School Z. Mr X told the Panel the Headteacher had confirmed the school would support and encourage Y in this area. In response to a question, Mr X said Y would continue to get external support with gymnastics and performing arts if she did not get a place at School Z.
26. The Council sent me handwritten notes made by two of the three Panel members during the stage two hearing. These notes say the Panel decided by a majority of two to one to refuse the appeal. However, it does not appear that the Clerk made a record of the voting.
27. On 28 May the Clerk wrote to inform Mr X of the Panel’s decision. He explained that the Panel had unanimously decided at the end of the stage one hearing that the school’s admissions arrangements were lawful and had been correctly and impartially applied. He gave the reasons for this decision. He said the Panel was also satisfied it would cause prejudice to the use or resources to admit more children to the school above the 240 admissions limit for Year 7.
28. Turning to the stage two individual hearing, the Clerk said the Panel had considered the points Mr X made but decided, on a majority vote, to refuse his appeal. The Clerk set out the matters the Panel had considered. He said the Panel had concluded that Mr X’s case for admitting Y to School Z did not outweigh the prejudice that would be caused to the school by admitting another child.
29. Mr X then complained to the Ombudsman. He said he did not consider the Panel had properly considered all the relevant factors he put forward in support of the appeal.

Analysis

30. I reviewed the information Mr X submitted in support of his appeal and his concerns about the Panel’s decision. I understand he is very disappointed by the appeal decision but I must consider if there was fault in the way the appeal was heard and the Panel’s decision-making.
31. The Clerk’s notes and the decision letter sent to Mr X demonstrate that the Panel did consider the points Mr X made on the appeal form and in person at the stage two hearing. Members of the Panel asked questions about Y’s involvement in gymnastics and performing arts and whether she would continue to receive support with these extra-curricular activities if she did not get a place at School Z. I am satisfied that the Panel properly considered Mr X’s case before making the decision to refuse his appeal. I found no evidence of fault.
32. The evidence sent by the Council shows the Clerk did not make his own record of the Panel’s voting at the end of both stages of the appeal hearing. The only record of the stage two voting appears in the handwritten notes made by one Panel member. This was fault because the Code makes it a mandatory requirement for the Clerk to make a record of the voting.
33. However, this fault did not cause any injustice to Mr X. It is clear from the Clerk’s notes from the decision-making stage after the stage one hearing, and notes made by two Panel members, that the Panel had decided not to uphold the appeal at stages one and two. This is not in doubt. And the decision letter sent by the Clerk correctly explained the reasons for the Panel’s decision.

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Final decision

34. The Clerk’s failure to make a record of the voting at the end of the stage one and two appeal hearings was fault. However, this did not cause injustice because it did not affect the outcome of Mr X’s appeal.

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Investigator's decision on behalf of the Ombudsman