Summary: Mr B complains about a school admission appeal. The Ombudsman finds fault with the Council. Mr B cannot be sure his appeal was properly considered. The Council agrees to take action to remedy the injustice caused.

The complaint

1. Mr B complains about an admission appeal for his son (Child C). He says the Panel did not properly consider his son’s medical needs, Mr B’s medical and mobility issues or his family’s circumstances.

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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. During my investigation I considered:
• Mr B’s complaint and the information he provided;
• documents provided by the Council;
• relevant legislation and guidance; and
• the Council’s policies.
5. The Council and Mr B had the opportunity to comment on my draft decision and I considered the comments received.

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What I found

Admissions

6. All schools must have a set of admission arrangements. The school’s admission authority uses these to decide which children will receive an offer of a place if there are more applications than places available. Some school’s give higher priority to children living within a predetermined area - the school’s catchment or priority area. Each school’s admission arrangements have a Published Admission Number (PAN). This is the number of places the school will normally offer.
7. In the normal admissions round, parents apply for places through the Local Authority in which they live. All preferences are collated. Parents then receive an offer from their home Local Authority, at the highest preference school at which a place is available.

School appeals

8. 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.
9. The Department for Education has published the School Admission Appeals Code (‘the Appeals Code’) to provide statutory guidance on school admission appeals.
10. 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.
11. Parents and the Panel can ask the admission authority’s representative questions. The Panel will normally ask the parents questions.
12. 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 proceed to the second stage of the appeal. In this stage the Panel must balance the prejudice to the school against the appellant’s case for their child to be admitted. It must decide whether the appellant’s case outweighs the prejudice.
13. Panels will only decide whether to allow an appeal after they have heard all appeals for a particular school. Following an appeal, the Clerk to the Panel writes to the parents with the Panel’s decision.

What happened

14. Mr B applied for a secondary school place for his son, Child C, at their preferred secondary school (School A). Because there were more applications than places available, the Council used the school’s oversubscription criteria to decide which children should be offered a place. It did not offer Child C a place at School A. It instead offered Child C a place at another school, School B. It explained to Mr B that School A had offered places up to its PAN to children with higher oversubscription criteria than Child C.
15. Mr B appealed the Council’s decision. He argued Child C should be offered a place at School A because:
• Child C has medical needs, which could be better managed by attending School A. He currently has special meals prepared and delivered to school by family members, which would not be possible if he attends School B.
• Mr B has arrangements with family members to assist with transporting Child C to and from school. Mr B has his own medical issues which affect his ability to transport Child C.
• Mr B’s nephew lives with him and attends School A, so Child C should be considered as having a sibling at School A for the purposes of the admissions criteria.
• Religious and social activities.
• He is a sensitive child and needs to maintain a routine.
16. Child C’s admission appeal took place in July 2019. During stage one, the Council’s Presenting Officer (PO) explained why admitting additional pupils would cause prejudice to the school. The Panel agreed there would be prejudice and the appeal moved to stage two.
17. At stage two, Mr B raised his concerns and explained why he felt Child C should be given a place at the school.
18. After the appeal hearing, the Clerk wrote to Mr B to explain the appeal had not been upheld. The Clerk‘s letter said Mr B’s grounds for appeal failed to outweigh the prejudice that would be caused by the admission of a further child to the school. The letter said the Panel had considered the reasons Mr B put forward in support of his appeal. The letter noted the reasons Mr B wanted a place at the school as detailed in paragraph (14).
19. Mr B is unhappy with this decision and does not believe the Panel properly considered the information he provided at his appeal. He says the Panel did not give due consideration to Child C’s medical condition, Mr B’s medical and mobility issues and how the decision will impact the family. He also says the Panel failed to request any medical records as evidence to support his case.
20. Mr B complained to the Ombudsman in August 2019.

Analysis

The Panel’s deliberations

21. In order to understand the Panel’s decision, I reviewed the Clerk’s notes from the appeal. I wanted to see the consideration the Panel gave to Mr B’s appeal and the admission authority’s case.
22. Paragraph 2.26 of the Appeals 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
23. The Clerk’s notes record the case the PO put forward on behalf of the Council. The notes show Mr B and the Panel were given the opportunity to ask questions.
24. Paragraph 3.2 of the Appeals Code requires panels to decide if a school’s admission arrangements comply with the School Admissions Code, and if they were properly applied to the appellant’s application. They then need to decide if admitting further children would “prejudice the provision of efficient education or the efficient use of resources”.
25. The Clerk’s notes from stage one are limited to the PO’s case and Mrs B’s questions / representations. The notes from the decision-making stage are very brief. I have seen no evidence in the Clerks notes of how the Panel considered the prejudice test set out in paragraph 25. All the Clerk’s notes show is the panel agreed the school’s admission arrangements had been properly applied, and that admitting more children would cause prejudice to the school. But there is no evidence to show what the Panel thought of the admission authority’s case, and how it decided that admitting further children would cause prejudice. The Clerk’s notes do not show how the Panel turned its mind to the evidence presented and reached a decision. The Panel may well have properly considered the issue of prejudice, but there is no evidence of this in the information I have received. Without this, I do not consider the requirements of the Appeals Code have been met. This is fault and means Mr B cannot be sure the Panel considered his appeal properly. This has caused Mr B an injustice.
26. I also have concerns about the Panels consideration of Mr B’s case at the second stage of his appeal. The Clerk’s notes do not need to be a verbatim record of everything discussed. But they should show the key points and allow a third party to understand how the panel reached its decision. That is not the case here. The stage two notes say:

“Panel notes the medical conditions however all the schools will be equipped to deal with those, therefore no overriding circumstances/ reasons to outweigh prejudice to school”.

27. The Clerk’s notes do not allow me to understand how the Panel considered the points Mr B raised and why they considered Child C’s needs could be met at another school, when Mr B’s case specifically outlined why they could not. This is fault. It means Mr B cannot be confident the Panel considered his case properly. This is injustice as it leaves Mr B with uncertainty that his reasons for wanting Child C to attend School A were properly considered and understood.

The Clerk’s decision letter

28. Paragraph 2.25 of the Appeals Code says “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”.
29. The decision letter does not give clear reasons for the Panel’s decision. It is not clear from the letter how the Panel decided the prejudice to the school outweighed the prejudice to Child C. The decision letter lists the relevant facts raised by Mr B in the appeal, but it does not explain how the Panel considered these, and the reasons for the Panel’s decision. This is fault. Mr B cannot be certain his appeal was properly considered. Again, this has caused an injustice.

Agreed action

30. Whenever we find fault causing injustice, we look to remedy the injustice caused.
31. Within four weeks of my decision the Council agrees to:
• Arrange a further appeal for Child C. This should be heard by a different Appeal Panel and Clerk.
• Issue a reminder to all Clerks of the requirements set out in the Code for recording decision making.
32. The Council should provide the Ombudsman with evidence that the above recommendations have been completed.

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Final decision

33. I find fault with the way an Independent Appeal Panel considered Mr B’s appeal for a school place. This means Mr B cannot be sure the Panel properly considered his appeal. This has caused Mr B an injustice. The Council agrees to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman