Summary: Mr Y complained the independent appeal panel had failed to properly consider an admission appeal for his son, Z. Because there is no record of the panel challenging the school’s case, the Ombudsman recommended that the school set up a fresh appeal but it has remedied the injustice by offering Z a place.

The complaint

1. The complainant, whom I shall call Mr Y, said the independent appeal panel had failed to properly consider his appeal for his son, Z to attend the school of his choice. In particular, Mr Y said:

• he only received the appeal papers the day before the hearing;
• the panel kept interrupting his questions to the school’s presenting officer; and,
• the panel was not impartial and had prejudged his appeal.

Back to top

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 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)
3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)

Back to top

How I considered this complaint

5. I considered Mr Y’s complaint and made enquiries with the Council (on behalf of the school) and considered its response. I sent Mr Y and the school a copy of my draft decision in order to take any comments they made into account before issuing a decision.

Back to top

What I found

Background

6. Mr Y wanted a place at the school for his son Z. He was unsuccessful in achieving a place because the school was full. Mr Y exercised his right to go to appeal. Appeals are heard by independent appeal panels.
7. Independent appeal panels must follow the School Admission Appeals Code (2012) when considering an appeal. The panel must consider whether:

•the admission arrangements comply with the law;

•the admission arrangements were properly applied to the case.

•admitting another child would prejudice the education of others.

8. To decide this, the panel relies on the school’s presenting officer to submit the school’s case that it is full and that admitting another child would cause prejudice.
9. 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.
10. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.
11. We rely on the clerk’s notes to inform us about the conduct of an appeal as the Code says (at 2.26) these must be “an accurate record”.

Mr U’s appeal

12. It is accepted Mr Y only received the papers for his appeal one day before the hearing. The Code says these should have been sent in time to allow Mr Y “a reasonable time” to prepare his case. One day cannot be said to be “a reasonable time”. However, Mr Y was asked at the hearing if he wanted an adjournment and he said he did not. Although there was fault in the school failing to send him the papers, there is no injustice to Mr Y because he could have asked for the hearing to be adjourned.
13. The school’s case also states where Z was on the waiting list. The Code is clear the panel cannot take account of where someone is on the waiting list or how places on the waiting list have been assigned. There is no evidence the panel did consider this but, arguably, there was no need for this to be part of the case either.
14. Mr Y says the panel interrupted his questions to the presenting officer. There is no reference to this in the clerk’s notes. I cannot make findings where it is one person’s word against another’s.
15. The Council’s guidance for Chairs says: “Panel members are expected to play an active part in the questioning of both parties”. This fits with the Admission Appeals Code at 3.10: “Whilst the panel must take into account the school’s published admission number, the admission authority must be able to demonstrate prejudice over and above the fact that the published admission number has already been reached”. It goes on to suggest how panel members might dig down into the school’s case.
16. There is no evidence in the clerk’s notes that panel members asked any questions of the school. After the presenting officer spoke, the clerk’s notes say; “The Chair then invited Mr Y to ask questions” not panel members. I can see no evidence of any challenge to the school’s case by the panel. This is fault. The panel agreeing at the end they had “no further questions” does not mean it was acceptable not to question the case at all. On the balance of probabilities, this is why Mr Y feels the panel was not independent and impartial as it appears to have accepted the school’s case wholly without challenge. Because this fault was so significant, I initially made a recommendation for a fresh appeal.
17. Mr Y appears not to have understood that when he came back into the room for the second part of the hearing he needed to make his case as to what that school could offer his child that others could not. The panel had already accepted there was prejudice to the school for allowing another child in. The clerk’s notes say; “Mr Y said that he felt unable to ask any further questions of the school representative” when this was not the time for him to do so. I note he continued making observations about the effect on the school having one additional child but the Chair or clerk could, and should, have made it clear at the outset that he needed to present his own argument, which he eventually did.
18. The Code says, at 2.25 the decision letter “must contain a summary of relevant factors that were raised by the parties”. The letter sent to Mr Y following the panel does not do this although I can see from the clerk’s notes that “relevant factors” were properly considered by the panel. Failure to write a decision letter reflecting those factors, however, is fault. In addition, the letter did not refer Mr Y to the Ombudsman, which is also fault. The Council should be clear with clerks of its expectations in relation to letters.
19. The school has now offered Z a place. This remedies the injustice caused.

Agreed action

20. As the school has offered a place there is no further action to take.

Back to top

Final decision

There is evidence of fault leading to injustice. The injustice has been remedied by the school in offering Z a place.

Back to top

Investigator's decision on behalf of the Ombudsman