Summary: The Ombudsman found fault by the school in the way it dealt with Mrs M’s request for an in-year place for her daughter. It failed to explain the process, offer her an application form, explain her appeal rights, and delayed forwarding her appeal form. The evidence failed to show the appeal panel properly considered the appeal or followed the correct procedure. The agreed action remedies the injustice these failures caused.

The complaint

1. Mrs M complains about the way her:
1. in-year application, for her daughter to attend Year 3 at St George’s Primary School, was dealt with; and
2. appeal against the refusal to give her a place at the school was dealt with as the hearing was delayed and the appeal panel failed to properly consider her submissions.
2. As a result, she and her family were caused a great deal of stress, uncertainty, and frustration because of the delays and failure to follow procedure.

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The Ombudsman’s role and powers

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)
4. 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)

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How I considered this complaint

5. I considered all the information Mrs M sent, the notes a colleague made of their telephone conversation, and the school’s response to my enquiries on her complaint, a copy of which I sent her. I also considered information the local council, who arranged the appeal hearing, sent. I sent a copy of my draft decision to the school and Mrs M. I considered the responses received from Mrs M, the school, and its solicitor.
6. I also took account of the ‘Changes to the admission appeals regulations during the coronavirus outbreak’ (April 2020) which dealt with temporary changes to the School Admission Regulations 2012 and provided guidance for managing appeals during the Covid-19 outbreak. This states:

• Appeals should be decided as soon as is reasonably practicable and in accordance with the deadline the temporary regulations set;
• The clerk must keep an accurate record of proceedings;
• Appellants must be given at least 14 calendar days’ written notice of an appeal hearing;
• Decision letters should be sent within 7 calendar days of the hearing or, in the case of an appeal based on written submissions only, within 7 calendar days of the appeal panel making their decision wherever possible; and
• Both parties should reply with answers to questions and any further points they wish to make. The clerk will send each party’s submission to the other party.

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What I found

7. Mrs M wanted her daughter, N, to have a place in Year 3 at her preferred school, because the family had moved town. Mrs M kept N in school in their previous town until her brother finished primary school. He now has a school place locally. While the preferred school for N is not the nearest, it is close to the school her brother now goes to which would make travel arrangements easier.

Complaint a): The in-year application

8. Mrs M emailed the school in October 2019 as she wanted a place for N at the end of Year 2 or the start of Year 3. She asked the school to ‘record her interest’ and let her know if a place became available. She also contacted the local council about it who told her it was too early to look for a Year 3 place but, she did have a right of appeal for a Year 2 place although she would stand a better chance of succeeding on an appeal for Year 3. It also told her where the appeal forms, and information about the appeal process, were on its website.
9. Mrs M believed she spoke to the Executive Headteacher who said the school was full and could not add N’s name to the waiting list. She says the school refused to provide her with an application form for Year 3. The school said she did not speak to the Executive Headteacher but, a ‘male member of staff’ who no longer worked there. The school has no record of this telephone conversation.
10. In December, she again emailed the school asking about the availability of a Year 2 place. The school replied saying it was full across all years and invited her to speak to the Headteacher for more information.
11. In January 2020, she contacted the school again. She argued how a place could be made available for N and believed the school could take her without prejudicing the provision of education or resources. The school failed to respond to this email.
12. Mrs M then contacted the council about the school’s failure to respond to her request. She asked about whether she should move to the appeal process. The council again explained she could appeal but, she might want to wait until June to do so as she could then appeal for a Year 3 place. Later the same month, she emailed the council again after not receiving a response from the school about placing N on the waiting list.
13. In March, she contacted the council as she had still heard nothing from the school. The council said it would contact the school and again reminded her of her right to appeal.
14. Mrs M is unhappy with the school’s failure to respond to her correspondence. The local council told her it too received no response from the school following her request for help. She complained about its failure to tell her how to appeal its decision and about its refusal to place N on its waiting list.
15. In March 2020, the country was put in to lockdown because of Covid-19.

Analysis

16. The school’s governing body is the admission authority for this school. When Mrs M appealed its refusal of a place, the local council was asked by the school to arrange for an independent appeal panel to hear it.
17. The school’s admission policy states for non-routine, or in-year admissions:

• Parents should arrange to visit the school;
• They are given an application form when they have a definite address;
• If there is a place, the governors arrange for admission; and
• If there is no place, the admissions committee considers the application. Information about how to appeal against the refusal is given to the parents.

18. I saw no evidence the parents were offered the chance to visit the school before national restrictions were introduced. This is not surprising considering the school was full. Despite this, I consider the school failed to: explain the in-year application process to Mrs M; offer her an application form so she could formally apply for a place; explain she had the right to appeal any decision to refuse N a place there; respond promptly or at all to some correspondence. I am satisfied these failures amount to fault.
19. The law requires the Ombudsman to consider whether any fault found directly caused the complainant an injustice. I am satisfied these failures caused her an injustice. When considering the injustice this caused her, I took account of the following:

• The council advised her in October 2019 about appealing any refusal which means she could have made an appeal earlier than she did;
• These failures meant she lost the right to have any refusal of a place considered by the admissions committee; and
• Appealing any decision about a Year 2 place would have meant challenging the school on limited grounds because of infant class size rules.

20. I also considered Mrs M’s complaint about the school failing to place N on its waiting list. Having looked at this part of her complaint again in response to comments from the school and its solicitor, I found no fault. This is because the waiting list was not intended to be kept beyond the autumn term of the normal admission round. The school was not obliged to maintain this waiting list beyond that period. Any in-year application Mrs M wanted to make was beyond that time frame.
21. The notes of the clerk of the appeal panel hearing records the members considering there was a ‘long waiting list for this school’. This suggests the panel believed the waiting list still existed at the date of the appeal.

Complaint b): The appeal hearing

22. In May, Mrs M appealed the school’s decision to refuse N a place. The school sent the appeal to the council 4 weeks later, 3 days after the deadline had passed for arranging a hearing in July. In response to my enquiries, the school explained this was during a period when schools were not operating normally because of the pandemic restrictions. The school says it was stretched to capacity and it took longer than usual to deal with correspondence.
23. Mrs M received the appeal documents on 3 August which told her the hearing was arranged for 25 August. Mrs M believes the school responsible for part of the delay as it failed to initially set out a proper case in response to her submissions, for example. The date was changed when the school had no staff available to answer her follow-up questions. These were only answered on the last day for sending documents to the panel. This meant she had 56 minutes to submit any additional information before the deadline expired. I response to my draft decision, the school pointed out this was a difficult time for schools who were having to deal with new school working arrangements the government introduced.
24. She complained she had to wait a month before receiving the panel’s decision letter and when she received it, the letter did not contain reasons. Mrs M considers the panel failed to properly consider her submissions when reaching its decision.
25. When she complained to the council about the late hearing, she was told it had an earlier date but, the school’s ‘presenter’ was unavailable due to illness. The ‘presenter’ was the school’s contact who would answer questions raised by the panel and Mrs M if needed. In response to my enquiries, the council’s appeal team confirmed an August hearing date was re-arranged because the Headteacher was ill. Mrs M is unhappy as she says the delay caused the family uncertainty and a great deal of stress as the current school was asking about her return.

Analysis

26. While I note the pressure the school was under because of the national lockdown arrangements introduced by Covid-19, its delay in sending her appeal to the local council meant she missed the submission deadline which in turn meant she lost the chance to have an earlier appeal. It was possible she could have had an appeal in July rather than August. I am satisfied this delay caused her some injustice because an earlier decision could have provided clarity about where N would be educated and reduced stress on the family.
27. The hearing was, due to Covid-19 national restrictions, limited to written submissions only. All questions and answers to the school had to be done in writing before the hearing through the appeal panel clerk support officer. The letter sent to Mrs M before the hearing said if she had any questions about the school’s case, or documents she wanted to send to the panel, she had to do so no later than 5 working days before the date of the hearing.
28. Under the School Admission Appeals Code (Statutory guidance for school leaders, governing bodies, and local authorities: February 2012), appeal panels must follow a 2-stage decision making process for all appeals, except infant class size appeals (paragraph 3.1). This involves:

• First Stage: The panel must consider whether the admission arrangements complied with the law and whether these were correctly and impartially applied to the case in question (paragraph 3.2 a)); and
• Second Stage: The panel must balance the prejudice to the school against the appellant’s case for the admission of the child. It must take in to account the appellant’s reasons for expressing a preference for the school. (paragraph 3.9)

29. Mrs M’s case to the appeal panel included: the failure to apply the admission arrangements properly; the history of her contact with the school and council; the school having extra capacity to admit a further child; adequate staffing to pupil ratio levels; capacity in the average classroom; N’s brother’s autism; his inability to use public transport alone; the logistical difficulty taking the children to school if N attended a different school; the school’s approach to education is better for N; the school was expanded in 2017 which provided further space; the ratio of children with social and emotional needs in the cohort.
30. The school’s case included: the year group met the admission number; there were health and safety concerns for admitting another child; the impact another child would have on staff and pupils in the class for the following years; the small physical size of some of the classrooms; the increased demand on facilities and equipment her admission would cause; there was no evidence of the family’s attendance at church; other schools in the area had places.
31. I make the following findings on this complaint:
1. I considered the notes of the appeal panel made by the clerk. These show the panel’s decision was unanimous. The grounds of the decision were recorded as, ‘Overall parental reasons not sufficient to override authority’. This is not a ground set out in the Code of Practice. This is fault.
2. There is no evidence the panel considered the appeal under the first stage set out in the Code, for example. This requires it look at whether the admission arrangements complied with the law and were correctly and impartially applied to N. This was a point raised by Mrs M in her appeal as she claimed the school failed to apply its admission policy correctly. This failure is fault.
3. If satisfied the arrangements complied with the law and were correctly and impartially applied, the panel moves to the second stage under the Code. The clerk’s notes do not show the panel considered the appeal this way. The notes appear to show the panel went straight to consideration of the second stage as it records the panel deciding the ‘school’s case has been made out’.
4. The notes refer to Ms X who said, ‘there is no reason for the child to be allowed’. Ms X is not identified. I assume she was a replacement panel member, as her name is not in the letter to Mrs M which gave panel members’ names. Her comments do not follow the second stage requirement of balancing the reasons Mrs M put forward for admission against the prejudice to the school. This is fault.
5. There is nothing to show the panel considered Mrs M’s points other than her older brother having autism, the logistics of travelling, and it being a good school. This is fault. Mrs M had also made points about staffing levels, the school’s recent expansion, and physical classroom sizes, for example.
6. In addition, the panel believed the case was about timing and noted there was a long waiting list for a place. The waiting list was not a relevant consideration for the appeal panel to take in to account when reaching its decision. (paragraph 3.22) This is fault.
7. The form has a section for the clerk to record whether the governors case was made out. This records it was made out but, the section to record the ‘grounds’ is blank. Similarly, there is nothing recorded about the ‘Appellants Case, Issues considered by Panel’. I consider this is fault.
8. I have seen a letter dated 25 August sent to Mrs M which just gave her the decision of the appeal panel and said the full decision details would be sent shortly.
9. I have seen the decision letter sent to Mrs M on 26 September. This explained to allow N a place would prejudice the provision of efficient education or the efficient use of the school’s resources and that the degree of prejudice caused at the school outweighs the reasons she put forward. It set out the requirements of stage 1 and stage 2 under the Code of Practice. While the letter explained the panel considered the appeal under both stages, the record of the notes does not show this nor shows any of the deliberations the letter set out. The letter, for example, went in to detail about the panel’s consideration under the headings of ‘Accommodation and resources’. It also referred to the ‘balancing’ carried out under stage 2. None of these details are reflected in the clerk’s notes.
10. Information in the appeal documents sent to Mrs M said the decision would be sent by the clerk within 7 days after the meeting giving the decision and the grounds on which it was made. The local council explained it sent an initial letter on 25 August, a copy of which I have seen, telling Mrs M about the panel’s decision. This only told her of the decision to refuse the appeal, not the reasons for the decision. The council accepted the clerk delayed sending the second letter containing details of the decision. This was because of a short supply of clerks due to Covid-19. This clerk sat on appeals daily for several weeks. Despite the unusual circumstances due to Covid-19, I am satisfied this delay is fault as it failed to send it within 7 calendar days of the hearing decision or, a reasonable time after the hearing.
11. I consider these failures caused Mrs M an avoidable injustice. It caused distress in the form of frustration, inconvenience, anxiety, and uncertainty that the appeal was properly considered.

Agreed action

32. I considered our guidance on remedies and Mrs M’s refusal of a place recently offered by the school.
33. The school agreed to do the following:
1. Send Mrs M a written apology for the failures to: explain the in-year process properly to her; provide her with an application form; explain her right to appeal the decision; send her appeal to the council promptly; ensure the appeal panel hearing properly considered her appeal.
2. Take steps to ensure better and prompt communication with parents enquiring about places; and
3. Invite the local council to take steps to ensure the failures of the clerk it provided for the hearing are addressed so they are not repeated in the future.

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Final decision

34. The Ombudsman found fault causing injustice on Mrs M’s complaint against the school.

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Investigator's decision on behalf of the Ombudsman