Summary: Mrs X complained about the way the independent Appeal Panel dealt with her appeal for a Reception place for her child. The Panel did not explain its decision adequately and has not demonstrated that it dealt properly with the question of the address used for the application for a place. This was a key point in deciding whether the Council had applied the admission arrangements properly. The Council has agreed to arrange a fresh hearing. It has started a review of its practice on writing appeal decision letters. This is a suitable remedy.

The complaint

1. Mrs X complained that there was fault in the way the Appeal Panel dealt with her appeal for an infant school place for her child. In particular she says:
1. she did not receive the ten days' notice of the appeal required and so could not send in all her documents five days in advance;
2. the Council told her she could submit the information the day before the hearing but then the Panel did not read it;
3. the Chair of the Panel did not allow her to ask questions she wanted to put;
4. the Panel did not apply the correct rules: it wrongly told her it could not consider the Council's decision about the address used to apply for a school place, but could only look at why she wanted the place;
5. the appeal decision letters were flawed.

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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 discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to our enquiries including the appeal papers, appeal decision letters and the Clerk’s notes of the hearing. I considered relevant law, guidance and policy on school admissions and appeals. I carried out telephone interviews with the Clerk and Chair of the Appeal Panel. I shared my two draft decisions with the Council and the complainant and considered their responses.

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What I found

School admission appeals

5. Independent school admission appeals panels must follow the law when considering an appeal. The law says the size of an infant class must not be more than 30 pupils per teacher. There are only limited circumstances in which more than 30 children can be admitted. There are special rules governing appeals for Reception and Years 1 and 2. Appeals under these rules are known as “infant class size appeals”. The rules say the panel must consider whether:
    

• admitting another child would breach the class size limit;
• the admission arrangements comply with the law;
• the admission arrangements were properly applied to the case;
• the decision to refuse a place was one which a reasonable authority would have made in the circumstances.

6. What is ‘unreasonable’ is a high test. The panel needs to be sure that to refuse a place was “perverse” or “outrageous”. For that reason panels rarely find an admission authority’s decision to be unreasonable.
7. Admission appeal panels must follow the mandatory sections of the School Admission Appeals Code (‘the Code’). The Code says:
• Admission authorities must ensure appellants receive at least ten school days’ notice of their appeal hearing. The notice must include a deadline for submitting further evidence not sent in with the initial appeal. (paragraph 2.1 and 2.724)
• The admission authority must supply the clerk to the appeal panel with all relevant documents needed to conduct the hearing in a fair and transparent manner. This must include details of how the admission arrangements…apply to the appellant’s application [and] the reasons for the decision to refuse admission. (paragraph 2.9)
• The clerk must send all the papers for the hearing to both the parties and the members of the panel “a reasonable time before the date of the hearing”. An appeal panel must decide whether any material not submitted by the deadline given is to be considered, taking into account its significance and the effect of a possible need to adjourn the hearing. (paragraph 2.10)
• The panel must send a written decision of the appeal to the appellant, including the reasons for that decision. (paragraph 2.24)
• “The panel must ensure that the decision is easily comprehensible so that the parties can understand the basis on which the decision was made. The decision letter must contain a summary of relevant factors that were 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.” (paragraph 2.25)

Council policy on home address for admission applications

8. The Council’s primary admissions guide for parents, ‘Starting School in Hounslow’, sets out its policy on how it decides which address to accept for admission purposes. It says:
• The child’s home address provided on your application must be your child’s current permanent place of residence.
• We will carry out address checks against Council records for all applications made by residents of the Borough.
• Where we are not satisfied that an address is valid, or we consider it to be an ‘address of convenience’ we will carry out further investigations.
• An ‘address of convenience’ “is considered to be an address named on a school admissions application which is not your child’s habitual residence and which increases the priority that your child will receive for admission to their preferred schools. A child’s habitual residence is considered to be the place where your child permanently resides and where your family normally lives at the time of application”.
• Examples given include where a family buys a new property or rents accommodation and uses this address in order to gain a school place, while continuing to own or rent another property.
• We will not generally consider an address to be a child’s habitual residence if the applicant owns or rents an alternative property that the child previously lived in. Where an applicant still owns or rents an address where the child previously lived, they must explain and evidence that their house move is permanent.
• After considering the information provided, if the Council believes the address used on the application is an address of convenience it will decide which address to use for the purpose of allocating a school place.

What happened

9. In December 2018 Mr and Mrs X applied for a place in Reception for their son, Y, for September 2019. They applied for places at several schools, with their first preference School A. The Council carried out an address check and found they had moved into their current address, Property 2, in October 2018. The Council wrote to Mr and Mrs X to ask about their previous address. There was further correspondence in which Mr and Mrs X explained to the Council:
• they owned the property they had lived in previously, Property 1;
• they had moved to Property 2 for personal reasons, which they explained;
• they could not sell Property 1 but had rented it out for a fixed period and it was now occupied by tenants;
• they were renting Property 2 for the same period.
10. The Council wrote to Mr and Mrs X with its decision on their address. It said it had considered all the information they had provided and noted that Property 2 was closer to their preferred school. It said it would be using their former address, Property 1, as the address for admission purposes. This was because they still owned Property 1 and it was available to them, and renting Property 2 would increase their priority for admission to their preferred school.
11. Using Property 1 as the home address meant the applications for the first three preferred schools were unsuccessful. This was because all places were filled with higher priority applicants, including those living closer to the schools. The Council allocated Y a place at the family’s fourth preference school.
12. Mr and Mrs X made a complaint to the Council about its decision to use Property 1 as the application address. They argued that the Council had not applied its own address of convenience policy properly as it had not considered whether Property 2 was their child’s current permanent place of residence. They said it had not considered all the evidence available.
13. The Council replied to the complaint at the end of April 2019. It stood by its decision on the address and explained its reasons.
14. Mr and Mrs X sent in a further complaint at stage 2 of the Council’s complaints procedure, disputing the decision and the way the Council had asked for and dealt with the evidence.
15. They also appealed to the independent Appeal Panel against the decisions refusing places at their first three preferred schools.
16. The Council replied to the stage 2 complaint. It said it had reviewed the previous decision and considered that the Council had considered the evidence properly, applied its policy correctly and made a reasonable decision based on all the evidence provided. It did not uphold the complaint and gave detailed reasons for its decision. It confirmed the independent Appeal Panel would now assess whether the School Admissions Service had operated fairly and applied policies correctly when considering the family’s admission application.
17. In other correspondence about the decision the Council told Mr and Mrs X the next step was presenting their case to the Appeal Panel. It said “if you believe we have incorrectly applied our address policy it will be open to you to raise this at the hearing”.
18. There was an exchange of emails between Mr and Mrs X and the appeals administration section about their grounds of appeal, the evidence they wished to submit and the date of the appeal hearing. They also had telephone conversations about these matters.
19. The Council arranged the appeal hearings. It sent the appeal notices with information about the appeals process to Mr and Mrs X by second class post 15 calendar days before the hearing date. It sent a further copy a few days later because it says there were problems with its postal service. About a week before the due date for the hearing the Council also sent an email to Mr X giving him the date for the appeals.
20. The Council says it recognises it did not give the full ten days’ notice of the hearing and asked Mrs X if she wished to proceed with the hearing. It says it told her the Council would accept information from her up to the day before the hearing. Mrs X confirms the Council told her she could submit information up to that date. She sent in further information for the appeal up to the day before.
21. The appeal hearing took place as scheduled. It considered appeals for all three schools. Mrs X attended and presented her case. She was concerned that the Panel members had not seen all the information she had provided and there was a discussion about this. The appeals were unsuccessful. The decision letters said the Panel found the admission arrangements were lawful and had been applied correctly. It found that none of the grounds for an infant class size prejudice appeal applied. It considered that the Council’s decisions to reject the applications were reasonable.

Analysis – was there fault causing injustice?

22. Mrs X complains about the administration and conduct of the appeal and the way the Panel made and communicated its decision.
23. The Council has accepted it did not give the required ten school days’ notice of the hearing. However it made it clear to Mr and Mrs X they could submit information and evidence up to the day before the hearing, which they did, and Mrs X was able to attend. So I do not consider they were disadvantaged by the short deadline.
24. Mrs X complains that the Panel members did not see all the information she submitted before the hearing. I have looked into this issue further. In interview the Clerk told me that the key document Mrs X was concerned about was an email that was password protected. The Clerk says she checked and found that this was a duplicate of information the Panel had already received earlier. The Panel referred to this in the appeal decision letter by confirming it had seen all the password protected information provided and the other late information Mrs X provided.
25. The Clerk and the Chair of the Panel were very clear in confirming to me that the Panel had seen all the information Mrs X had submitted before the hearing took place. So it had the opportunity to consider it in reaching its decision. Based on the evidence I have obtained I do not find fault in the way the Council dealt with the information provided to the Appeal Panel.
26. However the appeal notice did not give a date for appellants to submit evidence, contrary to the Code. The Council confirmed in response to Mrs X’s complaint that it would amend its appeal hearing appointment letter to include a deadline for providing evidence.
27. Mrs X also complains that the Chair of the Panel did not allow her to put all the questions she wanted to ask. The Clerk’s notes of the hearing provide evidence that Mrs X had an opportunity to explain her reasons for wanting a place for her son at each of the three schools. She also had a chance to sum up at the end.
28. The Clerk’s notes of the hearing appear to show that when Mrs X started by raising the dispute about the address used, the Chair directed her away from this issue towards the reasons she wanted a place at the schools. The record says the Chair stated “appreciate you don’t like the outcome, but brochure covers that point” and “we’ve got all the paperwork regarding your address. Need to explain to us why you need a place”. However I am satisfied from my interview with the Chair of the Panel that the comments reflects her assurance to Mrs X that the Panel had read all the written information she had provided and this was her opportunity to provide further evidence. I am also satisfied following my discussion with the Chair that during the hearing, which lasted two hours, the Panel took trouble to listen to the evidence Mrs X presented and gave her an adequate opportunity to explain her case. The Chair expressed the view that the notes of the hearing do not reflect the tone or full extent of the discussion.
29. Mrs X complains that the Panel told her it could not consider the Council's decision about the address used to apply for a school place, but could only look at why she wanted the place. She also complains that the appeal decision letters were flawed. In response to my enquiries on the complaint the Council said the Chair advised Mrs X that the Panel noted she disagreed with the Council’s decision about the address but it could not revisit the matter or overturn the Council’s decision. The Clerk to the Appeal Panel said she supported the Chair’s view and tried to encourage Mrs X to talk about other issues which they could consider, rather than the issue of her address. This is confirmed in the notes of the hearing where the Chair is quoted as saying “this panel cannot challenge the decision made …. regarding which address was used”. The Clerk explained this was because the Council had established the address used through a separate process. It had reviewed the decision twice and come to the same conclusion. She said she could not be certain the Appeal Panel had all the information the officers making the decision had taken into account and so the Panel should not re-visit the decision.
30. By contrast, the Chair of the Panel denied she had said this was not a matter for the Panel to decide. She told me she and the other experienced Panel members were clear their role was to look at the admission decision and whether it had been made correctly. She was surprised to see this comment attributed to her and said she had not seen the decision letter before the Council issued it.
31. I consider that the Clerk and the Council are at fault in taking the approach that it was outside the Panel’s remit to look at the question of the address. The question of which address the Council used in deciding the application is part of the consideration of whether it had applied the admission arrangements correctly. The Panel had a duty to decide this point. The question of the address was a key area of dispute in Mrs X’s appeal. She argued that the Council had not applied its policy or considered all her evidence properly and so had used the wrong address. The Panel should have considered this matter in deciding her appeal and made findings on the point. Neither the notes of the Panel’s decision-making nor the appeal decision letter refer to the question of the home address at all. Yet both say the Panel decided the admission arrangements “were correctly and impartially applied”. I do not consider it is possible to reach such a decision properly without considering the issue of the home address.
32. The Chair assured me the Panel had considered the matter. However six months later she could not recall details about how it had arrived at the decision and what evidence it had based the decision on. The appeal decision letters do not help in providing an explanation.
33. I therefore consider that the appeal decision letters were flawed. They provide a summary of issues raised by both sides in their written submissions and at the hearing. But they do not give any findings on the question of the address or explain how the Panel came to the decision that the admission arrangements had been applied properly. They therefore do not meet the standards set out in the Code. There is also a mistake in the decision letters as they all refer to the same school, School A, in the text.
34. In my view there should also be an opportunity for the Chair of the Panel to see the appeal decision letters to check they adequately reflect the decision made. Either the Clerk or the Chair may sign the decision letter. But the Code say it is for the Panel to ensure the decision letter meets the requirements set out.
35. The question for the Ombudsman is whether the fault lies solely in the way the decision letters were written or whether this is evidence of faulty decision-making. Although the Chair of the Panel was clear in her comments that the Panel correctly considered the relevant questions, in my view there is not enough supporting evidence to demonstrate that this was the case. Neither the Clerk’s notes, the advice given, nor the decision letter provide such evidence, and the Chair could not recall details of how the Panel made its decision.
36. In my view there is sufficient doubt about the way the Panel reached its decision to recommend a fresh hearing. Mrs X is left not knowing what the outcome would have been if it was clear the matter had been considered properly. This uncertainty is represents an injustice to her.

Agreed action

37. I recommend that the Council arrange a fresh appeal hearing with different Panel members and Clerk as soon as possible. It should consider all the issues required in an infant class size prejudice appeal including the question of whether the admission arrangements were applied properly. The Panel should provide a proper explanation for its decision.
38. The Council has also begun an exercise to review best practice on writing appeal decision letters with other local authorities. As part of this review it will consider giving Panel Chairs an opportunity see decision letters before they are sent out. The Council will report back to the Ombudsman on the outcome of the review within three months of the final decision on this complaint.

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Final decision

39. I am not satisfied from the evidence I have seen that the Appeal Panel considered Mrs X’s appeals properly. I find that the decision letters were flawed. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman