The Ombudsman's final decision:
Summary: based on the evidence I have seen, the Governors’ response to Mr P’s complaint may be tainted by the appearance of bias since the investigator and two of the panel members appear to have had links with the school. There are, however, no grounds for the Ombudsman to question the outcome. The school has agreed to review its complaints procedures to avoid the appearance of bias when considering complaints in the future.
- Mr P complains following an investigation by the Governors of his complaint about admissions to the School in 2019. Mr P is concerned places were not allocated according to the School’s oversubscription criteria. He complains the Governors investigation of his complaint was flawed. In particular, Mr P complains:
- the investigator and two of the three Panel Members who considered his complaint were not independent of the school; and
- a key witness declined to cooperate with the investigation.
The Ombudsman’s role and powers
- We investigate complaints about councils and certain other bodies. These include the governing body of any community, foundation or voluntary school maintained by the council when acting in connection with the admission of pupils to the school or otherwise performing any of their functions under Chapter I of Part III of the School Standards and Framework Act 1998. (Local Government Act 1974, sections 25 and 34A, as amended)
- 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)
- If we are satisfied with the governors’ 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)
How I considered this complaint
- I have considered:
- information provided by Mr P;
- the Governors’ response to his complaint at both stages of the school’s complaints procedure;
- the School Admissions Code published by the Department for Education in 2014; and
- Best practice guidance for school complaints procedures issued by the Department for Education in 2020.
What I found
- Menorah High School for Girls is a Voluntary Aided School. The Governors are the Admissions Authority and are responsible for admissions to the school.
- Mr P’s complaint concerns the actions of the governors administering the 2019 admissions to the school. The school’s published admission arrangements said that if oversubscribed, all eligible girls (those meeting religious observance criteria) would be entered into a random ballot for places.
- The school accepts it failed to follow the school admissions code insofar as there was no independent oversight of the ballot for places, but maintains places were allocated fairly (ie randomly).
- Mr P suspects impropriety in the allocation of places. He has no direct evidence, but has obtained evidence from another parent: a letter from a member of staff to a governor in which the member of staff appears to be responding to allegations of involvement in the selection of pupils. The governor has also referred to the ‘colour coding’ of applicants on a spreadsheet (which would have no purpose in a random ballot).
- Mr P complained to the Governors. The Governors considered his complaint at both stages of the school’s complaints procedure. For stage one, they appointed an independent investigator who provided a report on his findings. For stage two, the Governors convened an independent panel to consider Mr P’s complaint.
- The complaints process concluded there were flaws in the ballot due to lack of independent oversight, but found no evidence the school deliberately conducted an unlawful admissions process. The Panel made recommendations, which the Governors accepted, for independent oversight of future ballots.
- Mr P does not accept the Governors findings. He complains the independent investigator and two of the panel members were not independent. He described family, professional and financial links with the school, its staff and governors which he believes call their independence into question. Mr P provided details, but I have not included them here to maintain the anonymity of those concerned.
- Mr P also questions the investigation they carried out. He is unhappy the governor who referred to the colour coding of applicants, and to whom the letter he obtained was addressed, did not respond to an invitation to participate. He is unhappy the member of staff who wrote the letter was not interviewed.
- The panel concluded there had been no impropriety in the ballot, notwithstanding the lack of independent oversight, since the governors conducting the ballot are “gentlemen of integrity and good repute”. Mr P believes the same could be said of the governor who he says alleges impropriety.
- Mr P complains to the Ombudsman about the Governors’ response to his complaint. He would like the Ombudsman to investigate the 2019 admissions to the school.
The independence of the investigator and panel
- Government guidance to schools emphasises the need for fairness in the complains process. It says, “The appearance of bias may be sufficient to taint a decision even if there is no actual bias. This concept derives from the principle that justice must not only be done, but be seen to be done.”
- The investigator and the Panel do not appear to be independent of the school in the way we would expect for a complaint such as that made by Mr P. That is not to criticise the investigator or panel members, who may well have approached the complaint with a completely open mind. There is no evidence to suggest they were biased. They did, after all, find fault with the 2019 admissions to the school, just not the significant fault Mr P believes there was.
- However, Government guidance says it is important that there can be no perception of bias. Mr P has demonstrated that is not the case here. It would have been better if people without links to the school had been chosen. I recognise this poses a challenge for a school that has such strong ties to the community.
The participation of key witnesses
- Mr P complains the ‘key witness’, the discontented governor, did not take part in the investigation. He is unhappy the member of staff whose letter to the governor he obtained from another parent was not interviewed. He wants the Ombudsman to use the investigative powers at our disposal to pursue these lines of inquiry.
- The discontented governor was invited to take part in the complaint investigation but did not reply to the invitation. There is no fault there. The investigator and complaint panel had no powers to compel him to take part.
- The investigator and complaint panel did not interview the member of staff whose letter Mr P obtained. This is a decision they were entitled to take and there are no grounds for the Ombudsman to question it.
Further investigation by the Ombudsman
- Mr P asks the Ombudsman to investigate his concerns about the 2019 admissions to the school. He wants the Ombudsman to interview the discontented governor and analyse the colour-coded spreadsheet.
- I do not propose to investigate Mr P’s concerns any further. The discontented governor has declined an invitation to take part in an investigation. This would have been an opportunity for the governor to share the concerns Mr P believes he raised with a member of staff. In any event, should the discontented governor have concerns and wish to raise them, he may contact the Department for Education.
- The Ombudsman, as an administrative review, is not in a position to resolve Mr P’s complaint. We are unlikely to be able to say any more than has already been said, namely that there should have been independent oversight of the ballot and it was fault there was not. We could not identify any specific injustice to individuals we could remedy. The school has already accepted it made mistakes and undertaken to ensure appropriate scrutiny in the future. There is nothing we could add by further investigation.
- The Governors have already accepted the complaint panel’s recommendations to ensure independent oversight of future ballots for places, so there is no need for me to make further recommendations about the admissions process.
- Mr P’s complaint highlights the risk, described in government guidance, that the appearance of bias may ‘taint’ a decision, regardless of whether or not there is actual bias. I recommended the Governors review their complaints procedures to ensure that future investigations avoid this pitfall. The Governors accepted my recommendation.
- The Governors’ response to Mr P’s complaint was tainted by the appearance of bias since the investigator and two of the panel members appear to have had links with the school. There are, however, no grounds for the Ombudsman to question the outcome. The school has agreed to review its complaints procedures to avoid the appearance of bias when considering complaints in future, so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman