Summary: the complainant says the Council failed to properly consider her application for a school place and properly conduct the appeal against its decision. The Council says it correctly applied the admissions policy and the appeal panel properly considered the appeal. The Ombudsman finds the appeal panel acted with fault. The Ombudsman recommends and the Council agrees to arranging a fresh appeal hearing.

The complaint

1. The complainant whom I shall refer to as Ms X complains in considering her application for a school place for her daughter, Y, the Council failed to:
• Properly consider an application for a school place for Y and the appeal Mrs X presented against the refusal,
• Properly comply with the Code of Practice when conducting an appeal and present reasons for the refusal.
2. Ms X wants the Council and Panel to clarify how it decided the appeal and to review that decision.

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The Ombudsman’s role and powers

3. 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)
4. If 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

5. In considering this complaint I have:
• Contacted Ms X and read the information presented with the complaint;
• Put enquiries to the Council and examined its response;
• Researched the relevant law, guidance and policy;
• Shared with Ms X and the Council my draft decision and reflected on comments received.

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What I found

6. Independent school admission appeals panels must follow the law when considering an appeal. The panel must consider whether:
• the admission arrangements comply with the law;
• the Council has properly applied the admission arrangements to the case.
7. The panel must then consider whether admitting another child would prejudice the efficient education of others.
8. If the panel finds there would be prejudice the panel must then consider each appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
9. The Ombudsman does not question the merits of decisions properly taken. The panel has a right to come to its own judgement about the evidence it hears.
10. The Government issued guidance on admissions in its School Admissions Code 2014 and the School Appeals Code 2014. In March 2019 the government issued ‘Advice for admission authorities on school admission appeals’ this sets out advice on how to present cases at appeals. The Codes provide guidance on how appeal panels should conduct appeals.

What happened

11. Ms X applied for a place for Y at School Z. Ms X does not live in the priority admission area for School Z. The Council received more applications for School Z than it had vacancies. Under the oversubscription criteria in the admissions’ policy the Council must give priority to children who live in the priority admission area. The Council offered places to three children using that criteria all of whom lived within the priority admission area. The Council refused Y a place at School Z because the year group was full, and Y lives outside the priority admission area.
12. Parents could present applications for an appeal by 3 June 2019. The Council arranges appeal hearings from June onwards. Its policy says it must hear all appeals by September each year. The Council says it always hears appeals during the school summer holiday. Nothing on the Council’s website or in the information published about appeals suggests such a limit. Therefore, the Council does not know from where Ms X gained the impression it only arranged appeals in term time. Ms X says this year and in previous years the Council has set the date for hearing appeals in July. Therefore, based on what she recalled of the information on the website she understood the Council heard appeals in term time.
13. When the Council received Mrs X’s appeal it says it created an on-screen confirmation that it had received the appeal. The Council aims to give two weeks’ notice of the appeal hearing. The Council says it sent notice of the appeal to Ms X by first class post on 16 July 2019 for the appeal on 1 August 2019. Therefore, it says it gave two weeks’ notice. The letter explains that if not satisfied with the appeal the appellant may complain to the Ombudsman. Ms X points out the Code says notice should be no less than ten ‘school days.’ With the appeal taking place after the term ended on 23 July 2019, she only received five school days’ notice.
14. The independent appeal panel (the Panel) heard the appeal on 1 August 2019. On the day the Council says it had two cancellations and the appeals scheduled earlier in the day did not take as long as expected. The Panel decided to invite appellants for the later appeals to present their appeals earlier in the day if they wished to do so. The Council says it contacted Ms X who said she intended leaving work at noon but would like the appeal heard earlier in the day. The Clerk told Ms X she could keep the 2.15 appeal time she did not have to attend earlier if inconvenient. Ms X said she could attend at 1.00pm. Ms X disputes this account. Ms X says the Clerk told her the other appellants had already agreed to the earlier times. That, she felt, put pressure on her to agree. Ms X had to re-arrange childcare for one child and brought the other to the appeal. Ms X says this caused inconvenience and stress making it more difficult to present the appeal.
15. The School did not send a representative to the appeal hearings. The Panel had before it the head teacher’s statement, the appeal pack which included information about the previous academic year group and school, and information about the current academic year presented by the Council’s Presenting Officer. Ms X believes the oral presentation introduced new evidence at the appeal.
16. The Panel decided the class size of 33 children to one teacher meant admitting any further children would prejudice the efficient education of the children already in the class. Having reached that view, it then considered the individual appeals to decide if those children could show their need to attend the school outweighed the prejudice admitting them may cause.
17. Although the Presenting Officer had prepared for the appeal, on the day the Presenting Officer could not answer five questions put to her by members of the Panel. The Council says it encourages presenting officers to answer honestly and if they do not know the answer to a member’s question they should say so. Ms X says she raised questions with the Council. In response the Council told her the Panel would provide the answers. Ms X says the Presenting Officer did not answer those questions at the Panel.
18. The Panel’s Clerk notes five questions put to the Presenting Officer to which the Panel did not receive answers.
19. The Panel considered the appeal. However, it decided Ms X had not shown Y’s need to attend School Z outweighed the prejudice admitting her would cause to the efficient education of others already in the class. The Panel refused the appeal.

Analysis – was there fault leading to injustice?

20. My role is to examine how the Council and Panel considered the application and appeal. It is not to decide to whom the Council should offer a place at the school.
21. The Council applied the admissions criteria to Y’s application and refused a place. I find it did so without fault.
22. The Council confirmed receipt of Ms X’s appeal and gave her two weeks’ notice of the appeal. The reference to ‘school days’ may be replaced with ‘working days’ or a similar description. The description distinguishes this from two calendar weeks. The fact term ended during the notice period does not show fault. I find the Council arranged the appeal without fault.
23. I understand the Panel decided rather than make appellants wait they could offer to bring forward appeals. However, that is fraught with risk. For example, an appellant may feel they have little choice but to agree to the new time. In their wish to create a good impression, appellants may feel they should agree to an earlier time but feel rushed and at a disadvantage. From what Ms X says it is clear her family felt pressured to agree to the new times. It is unhelpful to say all the other appellants have agreed because that places further pressure on the family to agree to the new date.
24. A Panel may decide what weight to give to the information presented. It may decide any missing information is not significant enough to prevent it from deciding an appeal. In posing five questions to the Presenting Officer the Panel must have considered the information of some significance. The clerk’s contemporaneous notes show the Presenting Officer could not answer these questions about the school and year three. These questions go to the issue of whether Y’s circumstances outweighed the prejudice to the education of others at the school. Five unanswered questions represent a significant number. The Panel went on to reject the appeal. That it may do but there is no reference in the notes to show how the Panel members considered the missing information and whether it posed a significant issue. Therefore, I find the evidence does not show how the Panel considered why it did not need the missing responses. Without that evidence I cannot say the Panel properly considered whether it could decide the appeal without the answers to the questions the Panel posed to the Presenting Officer.
25. The impact on Ms X and Y is they wonder if the Panel might have come to a different decision. With the passage of time and with Y now being five months into the new school year Ms X and her family may decide not to seek a further appeal. However, the only resolution for faults in handling an appeal is to review it through a fresh hearing before a fresh panel.

Recommended and agreed action

26. I recommend and the Council agrees to within four weeks of my final decision to arrange a fresh appeal with a new Panel having given Ms X two working weeks’ notice of the proposed appeal date.

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Final decision

27. In completing my investigation, I find the Council acted with fault.

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Investigator's decision on behalf of the Ombudsman