Summary: Miss X complains there was fault in the way a school admission appeal panel heard her case. The Ombudsman found these faults call into question the panel’s decision. The Council will arrange a fresh appeal with a new panel.

The complaint

1. The complainant, whom I shall call Miss X, is represented by Ms Z.
2. Ms Z complains of fault in the way a school admission panel heard Miss X’s appeal against the refusal of a secondary school place for her son for September 2019.

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The Ombudsman’s role and powers

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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

5. I considered the School Admission Appeals Code 2012 and the Government’s home-to-school transport guidance. I read the appeal documents provided by the Council and spoke to the Council and Ms Z. I shared a draft of this decision with both parties and invited their comments. I considered those I received.

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What I found

6. Miss X’ son was due to move to secondary school. She applied for a place at her preferred secondary school in the normal admission round. There were more applications than places and the Council refused the place. Miss X appealed against the refusal. She was again unsuccessful.

What should happen, and was there fault by the panel?

The first stage of the appeal

7. This is where a panel decides if admitting extra children would cause prejudice to the efficient education of children. In simple terms, it must decide if the school is too full to take any more children. If it decides there is room, it must uphold all the appeals at the first stage unless doing so would cause serious prejudice. If so, it must decide how many children it could admit.
8. If the panel decides the school is already full and cannot take any more children, it must move to the second stage.
9. In this case, the panel decided the school was full and moved to the second stage. However, the basis on which it decided is not clear from the available documents. This is because they show the school had agreed to take an extra five children. It did so while hoping some of the children would not take up their places. The clerk’s notes of the appeal show the panel questioned the school’s presenting officer about the extra five children. The panel asked “So they can manage if they have to. [sic]” The presenting officer replied, “Not ideal, but will have to.” It is unclear from the notes if the panel decided the school was full at its original capacity, at capacity plus five, or somewhere between. The notes only recorded that the school “has proved their case”.
10. In its response to the draft decision, the Council said it was clear the school was full because of the number of applicants for places. It also pointed out that the appeal took place at a time when acceptances of offers was fluid. However, the Council also said the panel might have done well to ask at what point the school would have offered a place to a child on the waiting list. This could have been at the original capacity minus one, or at capacity plus four. I accept the point that the school was heavily over-subscribed for places, but the Council’s response to the draft decision confirms the panel did not clarify the matter of at what figure the school was full. The lack of clarity in the notes about the figure at which the school was full was fault.

The second stage of the appeal and the letter after the appeal

11. This where a panel decides if, despite the prejudice, there are any children whose need for admission is greater than the school’s need to refuse. Panels must consider the cases individual parents make. In deciding whether to uphold, panels should give clear reasons that reflect the case put forward. They should not decide cases for irrelevant reasons or based on inaccuracies. The decision letter after the hearing should reflect what the panel discussed.
12. In Miss X’s case, the panel decided there were “No overriding reasons” why Miss X’s son should be admitted. She had questioned whether he should travel unaccompanied to the school allocated by the Council. She had pointed out that she had a disability that would prevent her travelling with him. The panel found he “should be able to travel unaccompanied”.
13. The panel had the right to decide Miss X did not need to accompany her son. But there was still fault in the second stage and the decision letter. First, the panel’s voting was not recorded in the notes. This is a requirement of the School Admissions Appeals Code 2012. Omitting to record it was fault.
14. In response to the draft decision, the Council said it only records a panel’s votes if they are not unanimous and that it has not previously been held at fault for not recording the unanimity. I accept it is a minor breach, which on its own would not give grounds for a fresh appeal, but it comes in the context of other faults that call into question the panel’s decision.
15. Among these is that the decision letter Miss X received did not match the clerk’s notes of the second stage of the hearing. The letter stated a list of issues the panel considered. But there is no evidence of these issues in the notes of the panel’s deliberations.
16. The Council’s view was that the panel considered Miss X’s written submissions as well as her verbal evidence. It points out that the clerks’ notes recorded that it would do this. It also said the letter listed the issues considered to reassure Miss X they had been considered.
17. I would therefore have expected the clerk’s notes, which had not previously dealt with Miss X’s written case, to have included this in the notes of the panel’s deliberations at the end of the second stage. But these notes of the deliberations are brief. They do not show the panel considered the issues claimed.
18. While I would not expect the notes of the deliberations to be exhaustive, the mismatch between the notes and the letter is therefore fault.
19. The decision letter also claimed there was “a Government expectation that secondary school children should be able to travel to school alone”. In response to the draft decision, the Council accepted the Government’s home-to-school transport guidance did not say this. It said it was instead the panel’s expectation that secondary-age children could generally travel unaccompanied. While this might be a reasonable expectation, it was not the reason given in the letter. The reason given was incorrect. Basing a decision, even in part, on an inaccurate reason, is fault.

Injustice

20. As there were faults at both stages of the appeal and in the decision letter after the appeal, it is not clear the panel acted properly in reaching its decision. Not knowing if her appeal was properly turned down is an injustice to Miss X.

Agreed action

21. Despite its concerns, the Council said in its response to the draft decision that it would arrange a fresh appeal with a new panel if the Ombudsman felt it was needed.
22. To remedy the injustice caused by fault, and without prejudice to eventual decision, the Council will arrange a fresh appeal with a new panel at its earliest convenience. This should be within the maximum timescale laid out in the School Admissions Appeals Code 2012.

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Final decision

23. I have upheld the complaint and closed the case as the Council has agreed to provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman