Summary: Mrs X complained about the way the admission Appeal Panel dealt with an appeal for her daughter. There were some flaws in the record of the hearing but this did not affect the Panel’s decision. The Council has agreed to review how it records the decision-making.

The complaint

1. Mrs X complained that there was fault in the way the independent school admission Appeal Panel dealt with her appeal for a school place for her daughter. She says the Panel did not consider her evidence properly and the Council used the same Presenting Officer it had used for her previous appeal.

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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 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. 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 discussed the complaint with Mrs X and considered the information she provided. I considered the documents the Council provided, including the appeal papers, appeal decision letter and the Clerk’s notes of the hearing. I considered relevant law and guidance on school admission appeals. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

School admission appeals

5. The School Admission Appeals Code 2012 (‘the Code’) sets out a two-stage process for considering appeals. In the first stage the Appeal Panel must consider whether the admission arrangements comply with the law and were applied properly to the case. It also has to decide whether admitting another child would “prejudice the provision of efficient education or the efficient use of resources” for those already at the school. If the Panel finds there would be prejudice it goes on to the second stage.
6. In the second stage the panel must balance the prejudice to the school against the appellant’s case for the child to be admitted. It must decide whether the appellant’s case outweighs the prejudice to the school. If it does it must uphold the appeal. The Code says that in balancing the arguments the Panel “must take into account the appellant’s reasons for expressing a preference for the school, including what that school can offer the child that the allocated or other schools cannot”.
7. The Code says “the clerk must ensure an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting and reasons for decisions”.

What happened

Background

8. Mrs X has a daughter, Y, who started secondary school in September 2018 at School 1. She had also applied to School 2 but was not successful. In July 2019 Mrs X made an in-year application for a Year 8 place at School 2 as she said Y was not happy at School 1. There were no places available and her application was refused.
9. Mrs X appealed and the appeal hearing took place in August 2019. The appeal was unsuccessful. Mrs X complained to the Ombudsman about the way the Appeal Panel dealt with her appeal. The Ombudsman upheld her complaint finding that the Clerk’s notes of the hearing did not demonstrate that the Panel had followed the two-stage decision-making process properly. We recommended a fresh appeal hearing with a different Clerk and Panel members. The new hearing took place in February 2020. This complaint arises out of that appeal hearing.
10. In the meantime Mrs X had made another in-year application to several schools for a Year 8 place, including School 2 and another school, School 3. She said she was applying to School 3 because it was close to her home and workplace and Y had friends there. Y was offered a place available at School 3 and started there in the autumn term in 2019.

The February 2020 appeal hearing

11. The Council’s argument was that all places in Year 8 were taken and it would be detrimental to School 2 to admit another pupil because of pressures on space and staff time, taking account of the particular needs of the school population.
12. Mrs X presented similar arguments and evidence to those she put to the previous hearing in August 2019. She also updated the Panel on recent developments with Y’s education. She produced some further documents for the Panel to consider on the day of the hearing.
13. She explained:
• the difficult family circumstances that were affecting Y with bereavements and her parents separating;
• the attendance and behavioural problems Y was now experiencing at School 3; she had been excluded, referred to an off-site placement, and was refusing to attend;
• that she was unhappy with some of the policies at School 3.
14. Mrs X said her reasons for wanting a place at School 2 were that many of Y’s friends from primary school went there. She felt Y would be much happier there and this would improve her learning. Also School 2 was closer to home.
15. Mrs X provided a copy of a report from the Child and Adolescent Mental Health Service (CAMHS) which had assessed Y and recommended counselling and other services for her. She also provided copies of letters from Y’s GP, the latest of which in February 2020 confirmed the stress and anxiety Y was suffering from. The GP said being in a school without her friends would cause further deterioration. He said he supported the application for a place at School 2 where Y would be “confident and happy with her friends, so that she is able to focus more on her studies”.
16. She also provided copies of school attendance and behaviour reports from School 3.
17. Mrs X’s appeal was unsuccessful. The decision letter explained that the Panel had considered and discussed all the information and evidence she submitted and that she presented at the hearing. It had made a unanimous decision that her case was not strong enough to outweigh the prejudice that would be caused to the School by admitting another pupil.

Analysis – was there fault causing injustice?

18. Mrs X complains that the Council used the same Presenting Officer as in her previous appeal hearing in August 2019. This is not a matter of fault. The Ombudsman’s recommendation was to use a different Clerk and Panel members. This is to ensure the decision is made by people who were not involved in making the decision that may have been flawed on the previous occasion. The role of the Presenting Officer is to put the case on behalf of the Council. He or she is not involved in making or advising on the decision.
19. Mrs X also complains that the Appeal Panel did not consider her medical evidence properly. She feels if it had it would have allowed her appeal. In considering this part of the complaint I have looked at the appeal papers, the Clerk’s notes of the hearing and the appeal decision letter.
20. The notes of the hearing show the following.
• The Chair confirmed the Panel had read the documents Mrs X sent in before the hearing as well as those she presented on the day.
• The Clerk read out the psychologist’s report but the Panel found “nowhere does it say there that a school place at [School 2] will stop any of the issues you have raised and behaviour which [Y] is displaying”.
• The Chair asked if Mrs X had said everything she wanted to say and felt the Panel had listened to all her comments and “also read and taken into consideration all the correspondence you sent in prior to the appeal and also with you today”. She confirmed she did.
21. The appeal decision letter refers to the medical and other evidence Mrs X provided. It says the Panel “were of the opinion that the medical evidence and the CAMHS report do not provide any evidence that a change of school would ensure that [Y] would find it easier to attend school and would not continue to be reluctant to attend any school. It notes that Y had now attended two different schools and been reluctant to attend the PRU. It says the Panel “did not feel that [School 2] could offer any further provisions that any of the other education establishments can offer, that would improve the situation.” They also noted that Mrs X had named School 3 as one of her preferences because it was close to her home and Y had friends there. Yet “this proved not to have overcome her reluctance to attend this school”.
22. The medical evidence presented was that Y was suffering from stress and anxiety, and attending a school where she had friends would improve her wellbeing. Based on the documents I have seen my view is that the Appeal Panel took account of the medical evidence Mrs X provided but did not consider it was strong enough to support a finding that School 2 could offer something that other schools could not. It was entitled to consider this issue and make its own judgment on the evidence as part of weighing up whether the harm to Y from not attending School 2 was greater than the prejudice to the school in admitting another pupil.
23. I have also considered whether there were any other faults in the way the Appeal Panel conducted the hearing or reached its decision. The notes of the hearing show the Chair explained the procedure at the beginning and Panel members asked questions to Mrs X and the Presenting Officer. The hearing lasted around 45 minutes. Mrs X had the chance to ask questions and she confirmed she had been able to say everything she wanted to say. The Chair checked that all present were ready to move from the first to the second stage of the hearing.
24. The decision letter correctly identifies the decisions the Panel needed to make at the end of each stage, and explains how the Panel reached those decisions.
25. However I have similar concerns about a mismatch between the Clerk’s notes and the text of the decision letter that the Ombudsman had with the previous appeal. The notes show the Chair moved from stage one to stage two after deciding the admission arrangements were correct and had been applied properly. But there is no record that before going on to the balancing stage the Panel decided it would harm the School to admit another pupil. Similarly the notes of the Panel’s decision-making do not refer to any finding that prejudice that would be caused to the School or that Mrs X’s case did not outweigh the prejudice.
26. So I take the view that the record of the hearing is flawed. However I do not consider there is enough evidence that this affected the Panel’s decision-making to recommend a fresh hearing. The appeal decision letter says the Panel discussed and considered all the information and evidence provided. It refers to the arguments and evidence presented by both sides and, in contrast to the decision letter on the previous appeal, gives detailed reasons for the decision. I have no reason to doubt that these discussions took place. But in my view they should be recorded more fully at the decision-making stage. The notes do not have to reflect word for word what took place, but it should be possible to tell from them how the Panel arrived at its decision and the key points taken into account.

Agreed action

27. I recommended that the Council consider ways of improving the record of hearings to ensure the relevant decisions at each stage and key reasons for the overall decision are recorded. The Council should report back to the Ombudsman within three months on the outcome and any proposed changes. The Council has agreed to this recommendation as part of its continuing monitoring and review of its appeals processes.

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Final decision

28. I have found that there was some fault in the record of the proceedings but this did not affect the Appeal Panel’s decision. I am satisfied with the action the Council has agreed to take to review the way it records panels’ decision-making and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman