Summary: Mrs D complains she could not present her case in person to an appeal panel, when appealing for her child to join the School. We uphold the complaint. We consider the Clerk to the appeal gave wrong advice that prevented Mrs D presenting her case in person, which may have affected the result of the appeal. The School accepts this finding and has arranged for Mrs D to receive a fresh appeal.

The complaint

1. I have called the complainant ‘Mrs D’. She complains she could not present her case in person to an appeal panel, when appealing for her child (‘E’) to join Year 7 of Fullhurst Community College (‘the School’).
2. Mrs D says as a result, the local education authority (‘the Council’) expects her child to attend a different school, further away. Mrs D says that is unsuitable because of the travel time and danger involved with the journey.

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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 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)
4. If we are satisfied with an admission authority’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. Before issuing this decision statement I considered:

• Mrs D’s complaint made to the Ombudsman and any supporting information she provided.
• Information provided to us from the School which included the Clerk’s notes of the record of the appeal which heard Mrs D’s case.
• Relevant statutory guidance contained in the School Admission Appeals Code referred to below.

6. I also sent both Mrs D and the School a copy of a draft decision statement setting out my proposed findings in this case. The School accepted my draft findings. I took account of Mrs D’s comments before completing this statement.

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What I found

The School Admission Appeals Code

7. The Code provides statutory guidance to education admission authorities on procedures for hearing appeals against a refusal of a school place.
8. The Code sets out the decision making procedure an appeal panel must follow in each case. First it must decide whether:

• The admission arrangements comply with the law.
• The admission authority properly applied the admission arrangements to the case.
• Whether admitting another child would prejudice the education of others.

9. The panel must uphold an appeal:

• If it finds the child would have gained a place at the school but for a flaw in the admission arrangements; or
• It finds the child would have gained a place at the school but for a flaw in how the school applied the admission arrangements; or
• it finds admitting extra children would not cause prejudice to the school. If hearing a grouped appeal this must apply to all children attending the grouped appeal.

10. If the panel finds there would be prejudice it must then consider the appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
11. The Code gives advice on choices available to panels if hearing multiple appeals for the same school. It says: “multiple appeals may be heard individually or in groups”. It says “when multiple appeals are grouped, the presenting officer’s case is usually heard in the presence of all appellants at the beginning of the hearing […]. The appellants’ cases are then heard individually without the presence of other appellants. Where there are large numbers of appeals, holding grouped multiple appeals offers efficiencies”.

Key facts

12. In May 2019 Mrs D applied for E to join the School at Year 7 of her education, beginning in September 2019. This was after unsuccessfully seeking a place for E at other schools.
13. The School refused the application because it had already reached its planned admission number. It told Mrs D she could appeal that decision.
14. Mrs D appealed the School’s decision. Her grounds for appeal centred on the difficulty E faced travelling to the alternative school assigned to her by the Council. Her written case to the appeal was short.
15. The School delegates its admission and appeal arrangements to the Council. The Council wrote to Mrs D inviting her to an appeal in early September 2019. Its letter said “as there are a number of parents who wish to appeal for a place for their child at the school all parents are asked to attend a joint session to hear the Admission Authority’s case. The private appointment for your child will then be held later in the day and the Legal Clerk will confirm the time on the day following the joint session”. It said, “if you do not attend the hearing your appeal will be dealt with in your absence”.
16. The ‘grouped appeal’ had a start time of 9:30am. Mrs D and her husband arrived late. When they arrived the grouped appeal had started. They stayed in a waiting area. Then, when the grouped appeal finished the Clerk came out and spoke to them. Mrs D understood she could no longer appeal. She complained to the Council about this, before making her complaint to this office.
17. In its reply, the Council said the Clerk gave Mrs D two choices. She could ask for an adjournment of the appeal for another date “to attend both sessions and make representations”. Or, “the appeal could proceed on the basis of the written appeal documents already before the appeal panel”. The Council says that because Mrs D did not want to delay her appeal, it continued in her absence.
18. An attendance note kept by the Clerk confirmed the Council’s account. It said the Clerk explained to Mrs D the appeal was “a legal process and they [the appellants] must hear the first stage in order to continue with their own individual private hearing”.
19. The minutes of the appeal hearing show the Panel unanimously decided the School had shown admitting extra pupils would cause prejudice. It therefore went on to hear individual appeals. In Mrs D’s case, in line with the Clerk’s advice, the Panel considered the appeal based on her written submission to the Panel only.
20. The Panel decided Mrs D’s written case did not present a case that admitting E to the School would outweigh the prejudice caused by admitting her. It set out its reasons in its decision letter to Mrs D.

My findings

21. This complaint centres on the advice given by the Panel Clerk to Mrs D on the day of the appeal hearing. Unfortunately, Mrs D arrived late after the ‘grouped’ Stage One hearing had begun. The Clerk gave Mrs D the choice of either having a re-arranged appeal or having the second stage of her appeal based on written submissions only.
22. I can find no basis for this advice in the Education Admission Appeals Code. The Code envisages occasions where an education admission authority receives multiple appeals. It supports the approach of grouping appeals to consider the question of whether admitting extra pupils will cause prejudice to the school. It then makes clear that if the panel agrees the admission authority has shown prejudice, that individual hearings must follow. But it is silent on what happens if an appellant misses a grouped hearing.
23. So, the Clerk was not following statutory guidance when they gave this advice. It does not automatically follow that any advice became flawed as a result, because the Code cannot envisage every situation a panel may face. But in this case I can find no grounds for supporting the advice. I cannot see why if an appellant agrees, for the sake of time, to waive their right to a hearing on the case for prejudice that they must also waive their right to an individual hearing. I can think of no argument for how their attending an individual hearing would be improper. I find no argument advanced for that in the Council’s response to Mrs D’s complaint or the Clerk’s attendance note. For example, nothing to suggest why Mrs D attending the individual hearing would cause disadvantage either to her, the Panel or the School representative. The Clerk quoted no authority for why Mrs D had to attend the grouped hearing to then attend the individual hearing.
24. I recognise the Clerk gave Mrs D a choice to defer her appeal and come back another day. But I consider they offered an unreasonable alternative. I consider it perverse for the Panel to have the opportunity to consider Mrs D’s case in writing but not to let her expand on that in person. I find fault therefore in the advice given to Mrs D. She had the false choice of accepting delay in her appeal or not receiving the advantage of a personal hearing on the day.
25. This caused injustice as Mrs D missed the opportunity to explain her case in person to the appeal panel or answer questions they may have. I consider it possible, that had she done so, the Panel may have reached a different decision on the merits of Mrs D’s case.

Agreed action

26. Consequently, the only fair outcome to this complaint is for the School to arrange (via the Council) a fresh appeal hearing. It has agreed to do this within 20 working days of this decision or as soon as reasonably practicable thereafter. This will be heard by a different panel with a different clerk.
27. The School has agreed to take this action.

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Final decision

28. I uphold this complaint finding fault by the appeal panel, resulting in an injustice to the complainant. The School has agreed action that I consider remedies that injustice and provides a fair outcome to the complaint. I can therefore complete my investigation satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman