Summary: Mr D complains about an unsuccessful admissions appeal. We uphold the complaint, there is fault with the way the appeal was conducted by the panel members. This causes uncertainty as the outcome of the appeal might otherwise have been different. The Council has agreed to arrange and hold a fresh appeal.

The complaint

1. The complainant, whom I shall refer to as Mr D, complains there was fault in the way the Council and the school admission panel dealt with his appeal for a school place for his daughter, whom I shall refer to as C.

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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 considered Mr D’s written complaint to the Ombudsman, the additional information he provided and his appeal form.
5. I considered the Council’s appeal decision letter it sent to Mr D, the appeal papers considered by the panel and the appeal clerk’s notes from the hearing which included the panel’s discussions on the merits of the appeal.
6. Mr D and the Council were invited to comment on a draft of this decision before I made my final decision. Mr D was happy with the draft decision and the Council advised it agreed with my recommendation to arrange a fresh appeal.

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What I found

Relevant law and policy

7. The School Admission Appeals Code 2012 (the Appeals Code) states admission authorities must ensure that appellants receive at least 10 school days’ notice of their appeal hearing. The School Admissions (England) (Coronavirus) (Appeals Arrangements) Regulations 2020 (the 2020 regulations) temporarily amend the 2012 regulations due to COVID-19. The 2020 regulations say appeal hearings should be conducted by telephone or video conference. It also says that appellants must be given at least 14 calendar days’ written notice of an appeal hearing.
8. The Appeals Code sets out a two-stage process for considering appeals. In the first stage the panel examines the decision to refuse admission and considers whether it was made properly. It also has to decide whether the admission of additional children would “prejudice the provision of efficient education or the efficient use of resources” for those already at the school.
9. If a panel decides that prejudice would be caused it goes on to the second stage. In this 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.
10. The panel must uphold an appeal if it finds the child would have gained a place at the school but for a flaw in the admission arrangements or their application to the appellant’s case. It must also uphold an appeal if it finds admitting more children would not cause prejudice and it can allow all appeals. If material new evidence comes to light during the questioning of the presenting officer, the clerk must ensure the panel considers what bearing that evidence may have on all appeals.
11. In considering whether admitting an extra child would cause prejudice the panel must take account of the school’s published admission number (PAN). But the admission authority must still show the admission will cause prejudice over and above that number. The panel “must not reassess the capacity of the school”. However, it may take account of various matters in deciding this question. These can include considering what effect an extra admission would have on both the current and future academic years. Also, taking account of the school organisation and class sizes.
12. If the panel finds there would be prejudice it must then consider the appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
13. The panel must communicate its decision, “including reasons for that decision”, in writing.

What happened

14. School A’s published admission number (PAN) is 230.
15. Mr D’s daughter, C, was admitted to School A in Year 7 in September 2018. The school agreed to admit 238 pupils in September 2018 and in the two academic years that followed. The temporary increase of the PAN to 238 was at the request of the Council to ease pressure on Year 7 admissions across the city. The Council agreed to fund these extra places from September 2018 and in subsequent years.
16. When C was in Year 8, her mother, Mrs D, had to go abroad due to unforeseen caring responsibilities for a family member. Mrs D took C with her and they were away for approximately nine months.
17. C attended school while abroad but struggled to settle and was bullied. Mr D says this affected C’s mental and emotional health.
18. In July 2020, Mr D applied for a place at School A as C wanted to return there. The Council advised Mr D on 30 July 2020 it was not possible to allocate C a place at School A and that it had placed her on a waiting list. The Council allocated C a place at School B instead.
19. Mr D appealed for a place at School A. Mr D explained the circumstances behind C leaving School A in the winter, the upsetting time she had at school abroad and the effect it had on her mental health and wellbeing. He said that she had made strong friendships at School A and had made good progress there before she left due to the unforeseen circumstances. C would like to be at School A with her friends and the teachers she is familiar with.
20. Mr D also advised that C used to walk to school with her friends and his neighbour’s children attended School A and they would sometimes give her a lift to school. He said to attend School B, C has to catch two buses to get there and he has concerns regarding the walking route to School B.
21. The Council received Mr D’s appeal application on 11 August 2020. It wrote to him on 5 October 2020 to advise him of the appeal hearing on 12 October 2020. Due to the COVID-19 outbreak, the Council advised Mr D the hearing would not be taking place face-to-face.
22. Mr D says he received notice of the appeal hearing on 7 October 2020 and called to re-schedule the hearing but was unable to get through to the admissions team. Mr D spoke to a council officer on 9 October 2020 and was advised the next available date for an appeal hearing would be in November. Mr D said he felt pressured to continue with the original hearing date of 12 October 2020.
23. The appeal hearing was held remotely on 12 October 2020. In attendance were three independent panel members, Mr D, a representative from the Council (council officer) and a Clerk.
24. The panel considered information from School A. It said the PAN for Year 9 is 230 and the current number on roll are 232. The council officer confirmed the numbers were up to date. The information from School A said that although the PAN is 230, from September 2018 it increased the number to 238 at the request of the Council. The Council agreed to fund these extra places from September 2018 and in subsequent years.
25. C was refused a place on year 9 being full. The panel asked the council officer how School A coped with 238 pupils but he was unable to answer this question. The council officer was also unable to answer questions regarding School A’s budget or staffing.
26. The panel considered the distance of School A and School B from C’s home.
27. Mr D provided his grounds for appeal. He explained the circumstances around C leaving School A and the impact this had on her mental health. Mr D said that C was currently being home-schooled as she does not want to attend School B but she wants to be with her friends and the familiar environment of School A. Mr D explained his biggest concern was C’s mental health.
28. Mr D confirmed C was away for approximately nine months. Her time at school abroad was traumatic for her. Mr D confirmed that he was aware C may not get a place at School A when she returned but due to the unforeseen circumstances, C leaving was not preventable. Mr D also voiced his concerns about the walking route to School B.
29. The panel confirmed School A had initially admitted 238 pupils but this number was now 232. It confirmed the Council could not provide information regarding how it coped with an additional 8 pupils every year.
30. The panel were satisfied the Council had complied with the admission arrangements and they were applied properly. It then went on to consider if there was prejudice to the school and if the school had proved prejudice. The panel said there was ‘some prejudice’ and it ‘suspected’ School A did not have spare accommodation but there was no one present at the hearing to tell them. The panel agreed that ‘in the absence of any detail provided, low prejudice’.
31. The panel then went on to consider Mr D’s case. It recognised the impact of the time abroad on C’s emotional wellbeing and concluded there was ‘some prejudice to her’. The panel said it ‘did not think there are major difficulties to get to School B’ and they found it difficult to believe that School A can admit 238 pupils.
32. The council officer confirmed that School A, as a whole, had 10 pupils over the PAN and it has never had more than 16 over PAN ‘which they (School A) were prepared to be’.
33. The panel said they were sympathetic with C’s circumstances but their decision was that the prejudice to School A was higher than the prejudice to C due to Year 9 being over the PAN and the crowding at the lower school. Mr D’s appeal was dismissed.
34. The Council sent a decision letter to Mr D on 16 October 2020. It confirmed the panel’s considerations and explained the decision.
35. Mr D was unhappy with the outcome of the appeal and brought his complaint to the Ombudsman.

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Analysis

36. The Ombudsman’s role is to consider whether the appeal panel followed the Admissions Code. We do this by examining the panel’s papers and the notes taken by the Clerk during the hearing. We do not have the power to overturn the panel’s decision, and we cannot give a child a place at the school. It is for the panel to decide what weight to give the evidence. As long as it considered the evidence put forward properly, the Ombudsman cannot say what conclusion it should have come to. If we find fault which calls the panel’s decision into question, we may ask for a new appeal hearing.
37. School A says admitting more than 230 pupils will cause serious prejudice but then goes on to say it has admitted 238 pupils for three consecutive years. When C was initially admitted to School A in September 2018, it had agreed to increase its numbers to 238. The Council agreed to fund these extra eight places from September 2018 and in subsequent years. However, C’s intake, now in year 9, currently has 232 pupils when it received funding for 238. The current Year 8 at School A currently has 230 pupils but the number for this particular intake was increased to 238 also.
38. Despite School A’s claims it has taken an extra 24 pupils across Years 7, 8 and 9, the information shows it has in fact only taken an extra 10 pupils. Although the council officer made reference to the extra 10 pupils and said School A were prepared to be 16 over PAN, there is no evidence the panel properly considered these important factors when making its decision.
39. The panel asked the Council’s representative how the school previously coped with 238 pupils but he was unable to answer the question. He was also unable to answer questions regarding staffing and budgeting, yet the panel made its decision that there was prejudice to the school in the absence of this information.
40. The panel made its decision by ‘suspecting’ School A does not have spare accommodation and ‘in the absence of any detail provided’ there is ‘low prejudice’. This suggests it almost relied on the lack of evidence as proof prejudice had been demonstrated. Additionally, the appeal decision letter to Mr D states the panel considered information that every year group is ‘virtually full’ and not that every year group is actually full. It is likely these comments that suggest the panel made their decision on assumptions and speculation rather than facts would have caused Mr D frustration.
41. I expect Mr D’s frustration to be further compounded by the conflicting evidence from the Council and School A. On the one hand the Council says School A is prepared to be 16 over PAN but it is currently only 10 over and states the Council provided School A funding for these extra places suggesting the school can accommodate at least 6 more pupils. But on the other hand, it says the School is overcrowded, C’s year group is full and it has no information regarding staffing and budgets therefore the prejudice to School A outweighs the prejudice to C. I therefore take the view the panel’s reasoning for it’s decision is flawed.
42. The decision letter also incorrectly stated there are currently 230 pupils on roll in Year 9 but the notes from the hearing and the information from the School state there are 232 pupils on roll in Year 9.
43. Based on the factors referenced above, I have seen no evidence in the panel notes that show how the Council proved that admitting further pupils would cause prejudice and that it considered the evidence properly. This is fault.
44. Mr D complained the Council did not provide him with sufficient notice of the appeal hearing. The Appeals Code provides the Council should ensure the appellant receives at least 10 school days’ notice of the appeal hearing (14 calendar days under the 2020 regulations). The letter notifying Mr D of the appeal hearing is dated 5 October 2020 for the hearing on 12 October 2020 therefore he had 7 calendar days (5 school days) to prepare for the hearing. This is also fault.
45. The faults identified have caused Mr D injustice as it is possible the panel may have reached a different decision had it considered the appeal properly and had Mr D had sufficient time to prepare for the appeal hearing.
46. Mr D also complained the panel was not impartial and the members based their decision on racial stereotypes. The panel members introduced themselves at the beginning of the hearing and stated their occupations/previous occupations. They confirmed they had no links to School A. I have seen no evidence to suggest the panel members were not impartial.
47. Mr D says the panel made remarks regarding languages spoken at School B when this was irrelevant to the appeal. I agree with Mr D that such a remark is irrelevant to the appeal, however, I have seen no evidence to support or refute the remark was made because the only record of the hearing is the Clerk’s notes and there is no reference to such a comment being made. Therefore, I am unable to make a finding on this aspect of Mr D’s complaint.

Agreed action

48. Based on the injustice identified in paragraphs 40, 41 and 45, the Council has agreed to arrange a fresh appeal with a different panel and different appeal clerk as soon as possible in order that the appeal may be heard properly. The Council has agreed the Panel will have taken place and issued its decision within one month of this final decision.

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Final decision

49. There is fault in the Panel’s consideration of Mr D’s appeal and the Council has agreed to remedy the injustice caused by agreeing to arrange a fresh appeal hearing.

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Investigator's decision on behalf of the Ombudsman