The Latymer School, Edmonton (19 018 352)

Category : Education > School admissions

Decision : Upheld

Decision date : 30 Sep 2020

The Ombudsman's final decision:

Summary: Miss Y complains the school admission appeal panel did not properly consider her appeal against the School’s decision to refuse to admit her child. The Ombudsman has found fault in the way the appeal was conducted. The School should remedy this fault by arranging a fresh appeal.

The complaint

  1. The complainant, who I am calling Miss Y, complains the school admission appeal panel (the panel) did not properly consider her appeal against the School’s decision to refuse to admit her child. In particular, Miss Y says:
  • The School wrongly advertised the in-year vacancy on its website when its admission procedures say only existing waiting list applicants will be invited to take the entrance test;
  • She felt inhibited presenting her case because the School’s presenting officer interrupted her while she was speaking on several occasions;
  • The appeal venue was unsuitable;
  • The panel did not address issues she raised about the School’s case on prejudice; and
  • The panel did not consider some of the evidence she provided.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot question whether a school admission appeal panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with the school’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

  1. I have spoken to Miss Y and read what she has told us about her complaint, together with the School’s responses.
  2. I invited Miss Y and the School to comment on a draft version of this decision and took account of the responses received.

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What I found

The School’s role

  1. The School acts as its own admissions authority. It has a duty to comply with the statutory guidance issued by the Department of Education about school admissions and appeals. And, as the admissions authority, the School is responsible for admission appeal arrangements. The School, and the independent appeal panel must comply with the relevant law and guidance.

The School Admission Appeals Code

  1. This guidance, issued in 2012 by the Department for Education, outlines the process which must be followed for an appeal against a decision not to award a child a place at a school. The appeal panel must follow a two-stage process.
  2. At the first stage, the panel must consider whether the admission arrangements complied with the law and were correctly and impartially applied in the case. If it finds they were, the panel must then decide whether the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.
  3. If the panel finds the admission arrangements did not comply with the law or were not properly applied, and the child would have been offered a place had the arrangements complied or been properly applied, or there is no prejudice, it must uphold the appeal. In all other cases, the appeal proceeds to stage two.
  4. At stage two, the panel must balance the prejudice to the school against the case for the child to be admitted. If the panel considers the case for admitting the child outweighs the prejudice to the school, it must uphold the appeal.
  5. The Code confirms designated grammar schools are permitted to select children for admission on the basis of academic ability. It notes some admission authorities for grammar schools offer places to those who score highest, others set a pass mark and then apply oversubscription criteria to those applicants that reach the required standard.
  6. In cases where an appeal panel is asked to consider an appeal for grammar school, the appellant believes the child did not perform their best on the day of the entrance test, and a local review panel process has not been applied, the Code says the panel must only uphold the appeal if it is satisfied:
  • there is evidence to demonstrate the child is of the required academic standard; and
  • where applicable, the appellant’s arguments outweigh the admission authority’s case admission of additional children would cause prejudice

The School’s admissions procedure for the academic year 2019

  1. The School is a voluntary aided selective grammar school for boys and girls aged 11-18.
  2. Its published procedure for in-year admissions to years 8,9 & 10 states:

“Parents wishing their child to be considered for any vacancies that may arise in Years 8 to 10 should write directly to the school. For those applicants who took the entrance tests in year 6, the ranking list is maintained until the end of the first half term. Therefore, if a vacancy arises between the start of the academic year in September and the October half term, the next applicant on our initial waiting list of 50 will be offered the place.

If further vacancies arise after this, the remaining applicants on our initial waiting list will be tested in June or July, along with all new applicants on the list. The Governors will base their decisions on the results of tests in English, Maths, French, German, Latin or Russian.

Any successful applicant(s) will be resident in the Inner Area and begin at Latymer at the start of the new academic year.

……The governors will admit applicants up to the number of vacancies, but will only admit applicants who demonstrate through the tests that s/he is capable of following the Latymer education. If there are more qualified candidates than vacancies, the governors will apply the order of priority listed in the oversubscription criteria.

All lists are open from 1 September to 1 June each year.”

What happened

The in-year vacancy

  1. Miss Y’s child, who I am calling Z, was in year 9 at another school and on the School’s waiting list as at September 2019.
  2. The School says it was told in early September 2019 that a child in year 9 would not be attending the School after 27 September 2019. As this meant the School would have a year 9 vacancy for the rest of the academic year it took the decision to fill the vacancy as soon as possible rather than waiting until the start of the next academic year.
  3. It advertised the vacancy on the School website. Parents of current year 9 students attending another school who were interested in the vacancy were invited to register their interest before 18 October 2019.
  4. On 21 October 2019, the School wrote to Miss Y and the other parents who had expressed an interest in the vacancy; those already on the wating list and those who had responded to the advertisement on the website. It said all applicants for the vacancy were required to attend the school assessment tests on 6 November 2019. Parents would be notified in writing of the test results and the successful applicant would be required to take up the place as soon as possible.
  5. Z completed the assessment tests. The School then wrote to Miss Y with the results. 32 candidates sat the test for the one available place, and Z’s position was 4 out of the 32 candidates. The School said Z did not achieve marks high enough for the school to be able to offer them the place. It confirmed Miss Y’s right to appeal the decision.

The appeal hearing and panel’s decision

  1. Miss Y appealed the School’s decision. The appeal was heard in January 2020.
  2. The clerk to the panel notified Miss Y of the panel’s decision a few days after the hearing. The clerk told Miss Y the appeal had not been successful. She explained how the panel had considered the appeal and reached its decision, saying the panel had:
  • as the first stage, examined the decision to refuse admission. It had to be satisfied the School’s published admission arrangements comply with the mandatory requirements of the School Admissions Code and Part 3 of the School Standards and Framework Act 1988 and were correctly and impartially applied to the pupils concerned.
  • found the School’s published admission arrangements complied with the mandatory requirements and were correctly and impartially applied. The School provided evidence the admission of pupils in excess of the Standard Admissions Number would be prejudicial to the efficient education of pupils at the School. The panel concluded that to allocate one more place to the year group would be detrimental to the effective education and use of resources.
  • gone on to Stage two of the appeal hearing and balanced the prejudice to the School against Miss Y’s case for Z to be admitted.
  • considered the extenuating circumstances explaining why Z did not pass, or the threshold mark was not reached. It found Z had not met the required standards, was ranked 4th in the tests and fell below the standards required.
  • referred in their findings to offers being made based on the results of tests as detailed in the School’s Admission Procedures for the Academic year 2020.
  • decided Miss Y’s reasons did not outweigh the prejudice to the provision of efficient education and use of resources that would arise from admitting another child.
  • taken into consideration its Equality Act duties and specific equality duties on academies to ensure that the school eliminates unfair treatment, and advance equality of opportunity. No equality issues were raised as part of the case and it was satisfied there were no grounds for discrimination.
  1. The clerk’s letter concluded by saying:

“If you can prove that there has been maladministration in the appeals process, you may complain to the Ombudsman…”

Analysis – was there fault by the School causing injustice?

  1. The published admission procedure for the academic year starting September 2019 does not allow for the advertisement on the school website of an invitation for applicants for the vacancy, or an ad-hoc test in November.
  2. The admission procedure also says governors will admit applicants up to the number of vacancies, but only those who demonstrate through the tests they are capable of following the Latymer education. If there are more qualified candidates than vacancies, the governors will apply the order of priority listed in the oversubscription criteria. I have not seen any evidence to show how the School applied this part of its admission procedure to the vacancy.
  3. My view is the admission arrangements for this in-year vacancy were mis-applied by the School. This is fault.
  4. The School told Miss Y Z had not achieved high enough marks for it to able to offer them a place. But it did not explain what the required pass mark was, how Z fell short of this or had not demonstrated they were capable of following the School’s education. I consider this is fault by the School which caused Miss Y injustice. She was not given the relevant information about the pass mark or academic standard required to demonstrate ability to follow the School’s education. This prejudiced Miss Y’s preparation of her case to the panel on this issue.
  5. The panel wrongly found the admissions arrangements were correctly applied. They were not. This is fault. It also wrongly referred to the School’s admission procedures for academic year 2020. The relevant procedures were those for the academic year 2019.
  6. The panel did not consider whether Z had lost a place because the admission arrangements were wrongly applied. This is fault.
  7. The panel said Z did not pass the test or the threshold mark was not reached and Z had fallen below the standards required. But the School had not explained what the required pass mark was or how Z fell short of the required standard. This is fault. In my view, the panel was not provided with evidence to support its finding and did not properly consider this issue.
  8. I do not consider there is evidence the panel properly considered the Equality Act duties and whether these were met. Miss Y told the panel Z had special educational needs and been allocated extra time to complete the tests. There is no reference to this in the panel’s findings. This is fault.
  9. It is not for us to say whether, had the panel properly considered the application of the admission arrangements, the school’s required standard and whether it had been demonstrated Z met this, and the equality issues, it would have admitted Z. But it is possible it may have done so. In my view these faults caused injustice. Miss Y and Z lost the opportunity to have their appeal, and the effect of the misapplication of the admission procedure and the other issues, properly considered by the panel.
  1. The clerk was wrong to say Miss Y could complain to us if she was able to prove maladministration in the appeal process. Members of the public do not have to prove this to bring a complaint to us. They may complain to us and we will decide whether to investigate and make findings of fault, maladministration or injustice. I consider this is fault, although Miss Y was not caused injustice by the wording as she brought her complaint to us in any event.
  2. Miss Y also complained about her difficulty presenting her case, the appeal venue and the panel’s failure to address her points about the School’s case on prejudice and some of her evidence. But because I consider the appeal hearing was fundamentally flawed for the reasons set out above, and am recommending a fresh appeal, I have decided it is not proportionate or necessary to make findings on these other parts of Miss Y’s complaint.

Agreed action

  1. The School has agreed it will:
  • offer Miss Y a fresh appeal with a different panel and different clerk, to be heard as soon as possible and no later than 28 days from the date of this final decision; and
  • provide Miss Y, and us, with confirmation as to whether the Governors accept Z has demonstrated through the tests he/she is capable of following the School’s education. If this is not accepted the School should set out clear reasons for this. The information is to be provided within sufficient time for Miss Y to prepare her case about this for the fresh appeal hearing.

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Final decision

  1. I have found fault in the way the admission appeal panel considered the appeal, causing Miss Y injustice. I have completed my investigation on the basis the School will take the above action as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman

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