Summary: Mrs D complains there were flaws in the procedure followed by a school admission appeal panel. We uphold the complaint finding the panel did not take account of information which it mistakenly believed Mrs D had not provided. It said this was “crucial” to the appeal. We consider this oversight may have affected the outcome of the appeal. We therefore recommend the Council arrange a further appeal.

The complaint

1. I have called the complainant ‘Mrs D’. She complains about a decision taken by an independent school admission appeal panel which did not uphold an appeal for her child, ‘E’, to attend a selective grammar school in the Council’s area. Mrs D complains the Panel failed to take account of information she provided about E’s SATs results. The Panel mistakenly said she had not provided such information.
2. Mrs D says as a result, she cannot rely on the outcome of the appeal.

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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 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. Before issuing this decision statement I considered Mrs D’s written complaint to this office and supporting papers she provided. I also considered papers provided to us by the Council. These included the bundle of case papers considered by the appeal panel, the Clerk’s notes of the panel hearings and deliberation and the letter sent to Mrs D refusing her appeal. I also considered relevant law and guidance set out below.
6. Both Mrs D, the Council and members of the appeal panel were sent a copy of a draft decision statement setting out my proposed findings. I took account all comments received on the draft before completing this statement.

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What I found

Relevant Legal and Administrative Considerations

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

• The admission arrangements comply with the law;
• The admission authority properly applied those admission arrangements. Grammar schools can select children based on their academic ability.

8. The panel must then consider whether admitting another child would prejudice the education of others. The appeal panel must consider the impact of admitting additional children on the school.
9. If the panel finds it cannot admit another child without prejudicing the education of others it must then consider if the appellant’s arguments outweigh the prejudice caused to the school.
10. For grammar school appeals, government guidance says “An appeal panel may be asked to consider an appeal where the appellant believes that the child did not perform at their best on the day of the entrance test. In such cases […] the panel must only uphold the appeal if it is satisfied:

• That there is evidence to demonstrate the child is of the required academic standards, for example, school reports giving Year 5/Year 6 SAT results or a letter of support from their current or previous school clearly indicating why the child is considered to be of grammar school ability; and
• where applicable, that the appellant’s arguments outweigh the admission authority’s case that admission of additional children would cause prejudice. (School Admission Appeals Code 2012 paragraph 3.13)

The key facts

E’s application to the school and Council decision

11. Mrs D lives within the catchment area for the school and wanted E to join the school for September 2019 admission in Year 7. As the school is a selective grammar school, applicants must sit a test of their academic ability. The school’s published admission criteria say entrance to the school depends on pupils scoring a minimum of 104 at the test. It advised that for September 2018 admissions, the last successful applicant achieved a test score of 108.5.
12. E took the test in September 2018 and scored 101.1. The last successful applicant again scored around 108.5. Consequently, when Mrs D still applied for E to join the school, the Council did not offer a place.

Mrs D’s first appeal

13. Mrs D appealed this decision. In her appeal Mrs D said that at the time E sat the test they complained of headaches and double vision. Mrs D said neither her nor her husband recognised how serious the condition was. They believed E suffered headaches caused by stress. Shortly after taking the exam, E’s GP made a referral for an urgent appointment with a local eye clinic. Tests confirmed he suffered double vision. A letter from a consultant at the clinic confirming this diagnosis dates four days after E took the school entrance test.
14. Mrs D said had she had this diagnosis she would have alerted the school when E took the test. She said E could then have had adjustments for the test. For example, having more time to take the test or having the test paper in larger type. The published admission criteria say that “any medical or physical needs the candidate may have can be taken into account” on the day of testing.
15. With her appeal Mrs D enclosed the letter confirming E’s diagnosis from September 2018. She also enclosed a second letter from a consultant dated November 2018 confirming E suffered frequent migraine headaches resulting in frequent trips to accident and emergency. In a third attachment, Mrs D enclosed a school report card from Year 5 showing E’s attainment in reading, writing, science and maths. She also provided a single A4 page showing how writing appears to someone suffering double-vision.

The Council’s case to the appeal

16. In its written case to the appeal the Council explained why it did not offer a place to E based on their test score. It said the school had a published admission number of 180 pupils in Year 7. It explained why it did not consider it could admit further pupils without prejudice. It highlighted such matters as classroom size; narrow corridors; the need for smaller class sizes in certain subjects; limits on numbers in the assembly hall, canteen and so on.

The appeal

17. Mrs D’s case went to an independent school admission appeal panel. It upheld the Council’s decision not to offer E a place at the School. Mrs D complained to us about that decision. We upheld her complaint finding there was fault in how the Panel had decided E’s case.
18. We found the Panel had accepted E had an undiagnosed health condition on day of the entrance test. But it did not address the argument Mrs D made that E would have gained the pass mark but for this. Nor did it consider any supporting information she provided for this view. The only grounds it gave for finding E was not of academic ability was that they did not achieve the pass mark on the entrance exam.
19. We said: “A Panel can weigh the pupil’s test score in the balance when making its decision. But must also consider if there is evidence the child has sufficient academic ability notwithstanding their test score (then if applicable, it must decide if the appellant has established a strong enough case to outweigh the prejudice caused to the School). The Panel missed this key consideration. Which must result in a finding of fault.”
20. We considered the fault caused injustice to Mrs D. Had the Panel properly approached the question of E’s academic ability then it might have taken a different decision. We therefore recommended a second appeal.

The second appeal

21. That second appeal is therefore the subject of this complaint. It took place in late October 2019 and the Panel sent Mrs D its decision letter in early November. As agreed, a different Panel, with a different Clerk, heard this appeal.
22. I note that before the appeal took place Mrs D had opportunity to present further evidence to the Panel. So, as well as the information provided to the first appeal, she provided the following:

• An amended statement from Mrs D giving her reasons for appeal which drew attention to supporting information provided.
• Details of E attending a high achieving pupil programme at their current secondary school.
• A letter from E’s primary school Headteacher dated April 2019 which set out their then levels of academic attainment and provided standardised test results from the Spring Term 2019.
• A copy of E’s SATs (statutory assessment tests) results from Year 6.
• A copy of E’s attendance record for Year 6, showing they had significant authorised absence both for double vision and a different matter (referred to in the Headteacher’s letter).

23. The above information is contained in a bundle of papers sent to Mrs D before the appeal, with a covering letter explaining the bundle comprises the papers the Panel would consider. This also included the Council’s case to the appeal which was as previously summarised in paragraph 16.

The appeal hearing

24. The Clerk’s notes suggest the hearing lasted around an hour. A Council officer presented their case before Mrs D presented hers. The notes suggest the Panel asked questions of both sides. There was lengthy discussion around E’s health on the day they sat the school entrance exam and Mrs D’s understanding of their illness then. There was also chance for Mrs D to explain how E received medical treatment and how their health had improved.
25. During her comments Mrs D drew attention to E’s SATs results, reporting they did “very well”. She noted E sat those tests some months after the entrance exam and when receiving medication for their condition.

The Panel’s decision

26. The Clerk’s notes show the Panel spent time discussing E’s health on the day of the test. They say there was “ample evidence” E was unwell on that day. They then went on to consider what evidence Mrs D had provided to show E was of the required academic ability. The Panel considered the evidence did not support the view E was of grammar school ability. The Clerk’s notes say: “parent talked about SATs results but does not produce them – crucial evidence”.
27. The Panel then set out its decision reasons in writing, in a letter sent to Mrs D. The letter set out the Panel’s understanding of Mrs D’s case and the facts around E’s illness on the day of the test and subsequent treatment. The letter explained how the Panel considered the question of whether Mrs D had demonstrated E “was of the required academic standard” to enter the preferred school. The Panel explained why it did not consider E’s Year 5 report card or the letter from their primary school Headteacher, supported this conclusion.
28. The letter then went on: “The Panel felt it would have been helpful if the child’s SAT’s results had been presented, as you had mentioned them as evidence [E] had the required ability. In the absence of these results the Panel could not give much weight to this submission as these results were crucial supporting evidence for your case, particularly as these results were the main results following the 11+ exam results, and they were sat at a time when the child’s illness had been diagnosed and was being treated. The Panel understood the child still had medical issues around the time of [their] SATs but felt these results would have been helpful in informing its decision”.

My findings

29. As part of our investigation into Mrs D’s complaint about the first appeal we considered if there was any evidence the Council, as admission authority, had failed to apply its admission criteria properly. We found there was not. E fell short of the mark needed in the entrance test and there remains no dispute about that.
30. I note both appeals have accepted Mrs D’s evidence that E was unwell on the day they sat the school entrance exam. They have therefore hinged on whether there is evidence to support the view that E was of “the required academic ability” that he would have secured the necessary qualification score but for that illness.
31. I am satisfied that on this occasion the Panel approached this question properly. It gave Mrs D reasonable time to present evidence at the appeal and conscientiously asked her questions to fully understand her case. That is all clearly set out in the Clerk’s notes and the decision letter, which is thorough.
32. The Panel then went on to apply itself to the written evidence in support of Mrs D’s case. Again, the Panel left a clear audit trail of its thinking both in the Clerk’s notes and the decision letter. I note it gave clear reasons for the weight that it put on the evidence around E’s attainment in Year 5 and the letter from their primary school Headteacher.
33. However, it erred in consideration of the evidence surrounding E’s Year 6 SATs results. Both the Clerk’s notes and the decision letter show the Panel believed it did not have this information. However, the results were in the appeal paper bundle sent to Mrs D. I find they could have been more clearly marked in the bundle (I understand Mrs D provided them in a separate email with brief covering explanation that is not in the appeal paper bundle). But they were still there. It was an administrative fault either for the results not to be given to the Panel or for the Panel to have overlooked them. I consider the latter the more plausible explanation given Mrs D should have received the same bundle of papers as the Panel members. But nothing turns on which of these propositions is correct. As in any event there was fault.
34. I consider that fault caused an injustice to Mrs D and E. The Panel’s decision letter described the SATs results as at least ‘helpful’ and potentially ‘crucial’ to the outcome of the appeal. The Clerk’s notes also say the Panel saw the results as ‘crucial’ to their findings. I also note the SATs results show E performing better than stated in the letter of their primary school Headteacher. This was evidence the Panel put weight on in showing E was not of the required academic ability. So, I consider it possible the Panel may have come to a different conclusion had it considered the SATs results as part of its analysis of Mrs D’s case, as it clearly wanted to do.

Agreed action

35. The Council, which arranges appeals, has accepted my findings. To remedy Mrs D’s injustice it has agreed for her to now have another appeal. This will be heard within 20 school days of this decision. The appeal will be heard by a different panel and with a different Clerk.

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Final decision

36. For reasons set out above I uphold this complaint finding fault by an education appeal panel causing injustice to Mrs D. The Council has agreed to remedy this complaint in a way that I consider will provide a fair outcome to Mrs D. Consequently, I can now complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman