Summary: Ms B complains about how a school admission appeal panel dealt with her appeal for a secondary school place for her child. The Ombudsman finds there was no fault in the appeal hearing to call into question the decision on Ms B’s appeal. There was however a delay in notifying Ms B of the panel’s decision reasons, and that was fault. The Council has agreed to apologise for this.

The complaint

1. The complainant, whom I shall call Ms B, complains a school admission appeal panel failed to deal with her appeal for a secondary school place properly.

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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 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)
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 considered:

• all the information provided by Ms B about her complaint;
• information provided by the Council, which included the correspondence issued to Ms B about the appeal and its outcome, the appeal papers and clerk’s notes from the appeal hearing; and
• the current School Admission Appeals Code and associated guidance.

5. I have taken account of the Ombudsman’s guidance on remedies.
6. Ms B and the Council had an opportunity to comment on this draft decision, and all comments received in response have been fully considered.

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What I found

Legal and administrative background

7. Independent appeal panels must follow the law when considering an appeal. The panel must consider whether:

• the admission arrangements comply with the law; and
• the admission arrangements were properly applied to the case.

8. The panel must then consider whether admitting another child would prejudice the education of others.
9. If the panel finds there would be prejudice, it must then consider the appellant’s arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
10. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgement about the evidence it hears.

The application and the admissions criteria

11. Ms B made an on-time application to the Council, as the school admission authority, for a Year Seven place for her son, C. School X was her first preference.
12. The Council's admissions policy states that where schools are oversubscribed, places will be offered to the following, in priority order:

• Children in the care of the local authority (looked after children) and previously looked after children;
• Children with compelling medical or other exceptional reasons to attend the school;
• Children with a sibling link;
• Children in the catchment area; and
• Other children.

13. If a school is oversubscribed with children in any of the above priorities, the Council uses an electronic random allocation system to decide which children within that priority should be offered the available places.
14. C was not in any of the first four priority groups so fell within the category of ‘Other children’. No children in this category were offered a place at School X: The Council offered C a place at Ms B’s second preference school, School Y. Ms B appealed for a place at School X.

The appeal process

15. 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.
16. The Department for Education has published the School Admission Appeals Code (‘the Appeals Code’) to provide statutory guidance on school admission appeals.
17. 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.
18. Parents and the Panel can ask the admission authority’s representative questions. The Panel will normally ask the parents questions.
19. 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 must 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.
20. 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.

Ms B’s appeal

21. Ms B’s admission appeal took place in June 2019.
22. During stage one, the Council set out to explain why admitting additional pupils would cause prejudice to the school. It said that its published admissions number (PAN) was 300, although 304 places had been allocated. The four additional places had been allocated so that all pupils in the shared catchment area for this school and another who had applied to both schools could be accommodated in a catchment area school. The Council said these admissions above PAN were made on the expectation the number of pupils would drop back to 300 by September, and that it would not then re-offer these four places if numbers dropped. The Council considered any further admissions above PAN would amount to serious prejudice to the capacity of the school to provide efficient education, increasing pressure on teaching accommodation and common areas. Increasing class sizes beyond 30 would, it believed, be detrimental to children’s education and safety. It said plans were in place to make the accommodation suitable for the PAN of 300. The Council’s case also referred to the School’s net capacity (the number of pupil places it can accommodate) calculated in line with government guidance: the indicated admission number for Year Seven was 278.
23. The Clerk’s notes from this first stage of the appeal process session say there had been 1098 applications for 300 places, and that 304 places had been allocated in March 2019, but that number had now dropped back to 300. The Clerk noted 19 appeals had been received for the school, that the PAN was 300 and the school was already over its net capacity maximum. The record said that comments made by the Headteacher and by parents had been noted. The notes then say: “Agreed school could not take 19 extra pupils without prejudice being caused, therefore moving to next stage”.

Analysis

24. The Clerk’s notes indicate that the panel decided the school could not take all the appellants and therefore moved to the second stage. The relevant question for the panel was not only whether the school could admit all (or some of) the appellants, but also whether the admission of another child (or children) could be achieved without causing prejudice. Where a panel decides a school can admit another child (or children) it must admit up to at least that number. It is relevant that in this case the Council had offered 304 places despite the school’s PAN being 300. While there was an expectation that the 304 would reduce to 300, as it did, there could have been no guarantee that this would happen.
25. The Clerk’s notes are deficient in that they do not evidence that the panel explored in any detail how the school would have coped with 304 children, and arguably the point of prejudice might not have been reached until that number was exceeded. And if that was the case, some of the 19 appellants might have been successful.
26. However, while the notes from the first stage could have been clearer in setting out that the panel was satisfied the school could not admit any extra pupils without causing prejudice, and in setting out the panel’s consideration of the admission of an additional four children given that 304 places had been offered, the outcome would have been the same, in that the panel proceeded to stage two, to hear and determine the individual appeals.
27. Ms B raised other concerns about how her individual appeal was dealt with. She says that the Clerk did not notify her in advance of the names of the panel members or of the order of proceedings either in advance of the appeal hearing or at its start. The Code says at paragraph 2.10 that “the clerk must send all the papers required for the hearing, including the names of the panel members, to both the parties and the members of the panel a reasonable time before the date of the hearing”. She also complains that she was not able to ask questions of the admission authority’s representative. However, the Clerk’s handwritten notes from the first stage of the appeal process record that the panel, Clerk and admissions authority were introduced; that the Clerk explained the two stages of the decision-making; and that the Chair of the panel told those present they could ask questions and should give their name if doing so. The notes also record that after the admission authority had presented its case, the Chair invited questions and several people raised points. The notes record that a person with the same name as Ms B asked about extra funding for building to expand the school buildings: Ms B says this was not her, but even if this is the case it evidences that parents were able to ask questions. The Clerk’s notes also record that at the start of Ms B’s individual appeal, the Chair confirmed what the panel would consider and the order of the hearing, and note that Ms B did ask a question of the admission authority once it had put its case to the panel. Ms B disputes that the Chair confirmed what the panel would consider and the order of the hearing, but on balance I accept the contemporaneous evidence of the Clerk’s notes.
28. While Ms B should have been notified in advance of the names of the panel members, and reports that she did telephone the Council but was unable to get the information, as she has not indicated that she had any objection to those present (or raised any such objection at the time) I cannot conclude that this led to any significant injustice for her.
29. Ms B also complains that she was subjected to irrelevant questioning during her individual appeal, giving the impression panel members had not read her submission, and that she felt the panel were accusatory in tone. The Clerk’s notes indicate that Ms B set out her case before the panel moved to questions. Ms B reports for example that she was asked why her child does not have an Education, Health and Care (EHC) plan, and she felt this question was irrelevant. The Clerk’s notes indicate that having asked about the EHC plan, Ms B’s response was that she was not aware of that, and the panel member explained that an EHC plan would set out what support the child needs and what his targets are. Questions about an EHC plan in the context of the appeal were not irrelevant, because the panel was exploring what had been established in respect of the child’s needs, to support Ms B’s case for a place at the school in which she had made reference to special educational needs. I am satisfied overall that the panel’s questioning was not inappropriate: I cannot take a view on perceived tone of the questioning. Ms B reports that she was not given a chance to ask any final questions, but the Clerk’s notes show at the end of the questioning that Ms B had nothing more to add, and based on that I consider she was afforded an opportunity to say what she wished to say. The panel hearing was not affected by fault.
30. There was however fault in what happened after the hearing.
31. Relevant guidance for clerks says: “After the hearing the clerk should notify the parties of the panel’s decision. The decision letter must contain a summary of relevant factors that each party raised and the panel’s considerations. It must also give clear reasons for the panel’s decision, including how the panel decided on any points raised by the parties during the hearing. The clerk or chair must sign the decision letter and send a copy to all parties within five school days, wherever possible. The clerk should inform all parties if they expect a delay in sending out the decision letter”.
32. The Council wrote to Ms B on 11 June, which was within the five days, to advise that her appeal had been unsuccessful. It said though that the reasons would be set out in another letter to follow in due course. By 12 September, with the new school year underway, Ms B had not received the full explanatory letter promised and she telephoned the Council. Ms B says the Council was apologetic that the decision letter had not been sent out but could not say why this had happened. The Council says it does not have a record of that conversation, but as it had a copy of the letter on file the implication is that it had been issued as dated (22 July). However, the time taken to issue the explanatory decision letter was too long, even if this was done on 22 July, and was fault. The time frame specified in the Code was not met and no explanation was given for the delay.

Injustice to Ms B

33. While Ms B had been quickly notified of the panel’s decision not to uphold her appeal, the fault identified above meant that Ms B was waiting longer than she should have done to receive the detailed reasons for that decision.

Agreed action

34. To remedy the injustice identified above, I recommended that the Council provides Ms B with an apology within four weeks of the date of the decision on this complaint. The Council has agreed to my recommendation.

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Final decision

35. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman