The Ombudsman's final decision:
Summary: Mr X complained about errors during the Council’s school admissions appeals process. There was no fault in how the Council considered Mr X’s appeal. However, the Council’s procedures meant Mr X did not receive a written decision letter within the five-day statutory timescale. This was fault. This did not cause Mr X a significant injustice, but the Council’s procedures may be causing injustice to others. The Council has agreed to review its procedures to ensure it complies with its statutory obligations.
- Mr X complained about errors and delay during the school admissions appeals process which meant his child did not get a sixth form place at their preferred school (school A). He says this has caused him and his child distress and his child has missed out on education.
- He wants the Council to carry out a fresh appeal and award his child a school place.
The Ombudsman’s role and powers
- 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 a school admissions appeal 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. (Local Government Act 1974, section 34(3), as amended)
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- 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)
How I considered this complaint
- I read Mr X’s complaint and spoke about it with his representative.
- I made enquiries of the Council and considered the information it sent me.
- Mr X and the Council had the opportunity to comment on the draft decision. I considered their comments before making a final decision.
What I found
The School Admissions Appeals Code
- In 2012, the government issued statutory guidance on how to administer school admissions appeals. The aim of the guidance is to ensure that all admissions appeals are conducted in a fair and transparent way. It says the Code imposes some mandatory or statutory requirements and when this is the case, it uses the words “must” or “must not”.
- Any appeals submitted after the appropriate deadline must still be heard, in accordance with the timescale set out in the admission authorities timetable.
- The Code says the panel:
“must communicate the decision of each appeal, including the reasons for that decision, in writing to the appellant… as soon as possible after the hearing, but not later than five school days, unless there is good reason.”
- Section 3.17 of the Code says:
“In the case of an appeal where the child did not reach the specified entry requirements, the panel must not make its own assessment of the child’s ability, but must decide whether the admission authority’s decision was reasonable in light of the information available to it. In doing so, it must consider whether any process in place to consider such cases (for example, where a pupil had not been studying in England and did not have GCSEs) was carried out in a consistent and objective way.”
School A’s sixth form admissions policy
- The school’s policy says all students admitted to the sixth form must meet the general entry requirements and the minimum course entry requirements. For those applying to study three A-Levels, the requirements are 5 GCSEs at grade 5-9 with a minimum of Grade 4 in English Language or Literature and Mathematics as well as the relevant subject-specific entry criteria.
- In September 2019, Mr X’s child, Y, began year 11 at school A in the Council’s area. School A used exam board B for several of its GCSE subjects, including Maths and English.
- During the autumn term, Mr X accepted short-term work abroad. He planned to take his family abroad with him, but to return to the Council’s area before September 2020, in time for Y to begin A-level studies in year 12.
- Y left school A in December 2019 and the family moved abroad shortly after. Y began attending a school abroad.
- In January 2020, Mr X applied for Y to start sixth form at school A in September 2020. As Y was not a current student at school A, he applied for Y as an external candidate.
- Y attended school abroad between January and June 2020. Due to the COVID-19 pandemic, many pupils did not sit GCSE exams, but instead schools awarded students centre-assessed grades. Y’s school offered to register Y for centre- assessed grades, but Mr X declined this as the school used a different exam board (Exam board C). Mr X said instead, he would apply directly to exam board B to award Y GCSE grades.
- In June 2020, Mr X contacted school A to request support to help Y get a place at its sixth form. The school replied saying it would need proof of Y’s centre-assessed GCSE grades. It said Mr X should ask the school Y currently attended to ensure it registered them for these, as without centre-assessed GCSE grades, they would be unable to enrol at school A for A-Levels.
- Exam board B rejected Mr X’s application to award Y centre-assessed grades. Mr X lodged an appeal against this decision.
- In July 2020, the school told Mr X that Y should attend the sixth form enrolment day in August and the school would see what support it could provide them.
- At the end of August and early September, school A held two sixth form enrolment days. However, Y did not attend these as, due to travel restrictions resulting from the COVID-19 pandemic, the family were unable to return to England in time.
- Mr X and Y returned to the Council’s area at the end of September 2020. Mr X wrote to school A and asked it to award Y a place in the sixth form. He attached Y’s leaving certificate from the school abroad. At this time, Y had not been awarded any GCSE grades.
- School A wrote to Mr X. It said it could not admit Y to the sixth form as Y did not have any GCSE grades. It also said the sixth form admission process had closed before the start of term in early September. It said students had now completed their transition to Year 12 and a month of their A-level courses. It advised Mr X that Y should attend a college to obtain GCSEs.
- Mr X was dissatisfied with this and asked to meet with school A. School A said it was unable to meet with him due to COVID-19 safety restrictions, and, in any case, the school had made its position clear.
- Mr X asked school A how he could appeal. The school told him there was no appeal process.
- Six days later school A wrote to Mr X again. It told him he could appeal against the decision through the Council and gave him information on how to do this.
- School A contacted the school Y had attended abroad. It asked the school whether Y had any centre-assessed GCSE grades. The school confirmed it did not. It said it had offered to register Y for centre-assessed grades with exam board C, but that Mr X had declined this as he wanted Y’s grades to be awarded by exam board B.
- School A supported Mr X’s appeal to exam board B to award Y centre-assessed GCSE grades.
- Mr X lodged an appeal with the Council about school A’s decision to decline Y a sixth form place. The Council scheduled the appeal hearing for 2 December 2020.
- On 1 December 2020, school A wrote to Mr X. It said exam board B had now agreed to award Y centre-assessed GCSE grades and included a list of the GCSE grades it had awarded Y.
- On 2 December 2020, the appeal panel met to consider the case. Due to COVID-19 restrictions, the hearing was held virtually. The panel considered submissions from Mr X, his representative, and the school. Mr X’s representative said the panel needed to consider section 3.17 of the Code and that Y had not been studying in England. They said they did not think the school had considered this point in a fair and consistent way. The Panel notes show it was aware exam board B had awarded Y centre-assessed grades the day before the appeal hearing. School A said that at the time of Y’s application, Y did not have GCSE grades. Now that Y had a set of grades, Y could apply for any sixth form, including school A.
- The notes show Mr X and his representative both confirmed they had had sufficient opportunity to make their case. They also record that the chairperson explained to them that if the appeal was successful, Mr X would receive a call the next day at 10am. If Mr X did not receive a call, this meant the appeal had been dismissed.
- The panel considered the appeal but did not allow it. The notes say the panel felt school A had done everything it could to support Y, as an external candidate not on its roll. It noted she did not have centre-assessed GCSE grades at the time of the application and so did not meet the admission criteria. It also noted school A had contacted Y’s school abroad to ask if it had any centre-assessed grades for Y, but the school confirmed it did not. It felt this action meant it had met its duty for due consideration of the fact Y had been studying abroad as set out in section 3.17 of the Code. As it dismissed the appeal, the Council did not contact Mr X the following day.
- The Council sent Mr X the appeal hearing decision letter on 4 January 2021.
- Mr X was unhappy with the decision and his representative brought the complaint to us. He told us:
- The Council had contributed to the delay in him lodging his appeal, as the Council website directs unsuccessful applicants wanting to appeal back to the school rather than to the Council.
- The panel had not fully considered that Y was an external student applying from abroad and so did not have GSCE grades.
- The Council delayed in issuing the panel decision letter. He said the Code says it should issue it within five days of the panel hearing, but Mr X did not receive it until a month after the appeal.
- When Mr X and Y returned to England at the end of September 2020, Y was an external applicant and did not have any awarded GCSE grades. School A contacted the school Y had attended abroad who confirmed it did not have any grades for Y and the reasons for this. School A concluded Y did not meet the admission criteria as Y did not have GCSE grades and there was no evidence of progression of Y’s learning abroad.
- The panel considered how school A had reached this decision. It noted school A had contacted Y’s school abroad for more information. It decided school A had met its duty to take Y’s circumstances into account as set out in 3.17 of the Code. The panel appropriately reviewed school A’s decision and considered it had followed the correct process. There was no fault in how the panel considered the appeal, so I cannot question the decision reached. The Council was not at fault.
- The panel notes show it was aware Y had received GCSE grades from exam board B the day before the panel. However, the role of the panel is not to re-take the decision, it is to decide whether the decision school A made at the time was reasonable, in light of the information available to it. It concluded school A’s decision had been made in line with its admissions criteria, based on information available at the time. It noted that as Y now had GCSE grades, they could make a fresh application to any sixth form, including school A. The panel fulfilled its role to review school A’s original decision in line with the Code and was not at fault.
- Mr X says information related to admission appeals on the Council’s website is misleading and contributed to delay in lodging his appeal. Mr X did ask the school how he could appeal and it was the school who initially told Mr X there was no appeal process. The school corrected this position six days later and told him he could lodge an appeal with the Council. It was the school who initially told Mr X incorrect information, so I cannot say this delay was Council fault. The Ombudsman cannot make findings on the action of schools.
- The Code says the panel must communicate the decision of each appeal, including the reasons for that decision, in writing to the appellant as soon as possible after the hearing, but not later than five school days, unless there is good reason. This is a statutory requirement. The Council says it cannot meet this requirement due to the number of appeals it receives and so has devised its own, local procedure. Any departure from the statutory guidance should only be in individual cases and for specific, good reasons. The volume of appeals received is not a satisfactory reason to depart from the Code on a routine basis. The Council should instead review its arrangements to ensure it can comply with the Code and communicate appeal panel decisions in writing within five school days.
- The Council did not send Mr X a written decision within five school days and this is fault. The delay caused Mr X some uncertainty but, in this case, I do not consider it caused a significant injustice as it did not impact significantly on the course of events. However, as the Council says it uses its local procedure in all its appeals, I am concerned others may not be receiving their written decision letter within five school days. This fault may be causing a wider injustice.
- Within three months of the final decision, the Council will review its school admission appeals procedures to enable it to comply with the School Admissions Appeals Code’s requirement to provide a written decision letter within five school days of an appeal hearing.
- It should provide evidence to the Ombudsman that it has done this.
- I have completed my investigation. I have found fault which did not cause Mr X a significant injustice but may be causing injustice to others. The Council has agreed to review its procedures.
Investigator's decision on behalf of the Ombudsman