Summary: Mr R has a brought a complaint about the school admissions appeal panel’s decision to refuse Child Z admission to his preferred school. The Ombudsman has found fault by the Panel for failing to record its deliberations properly. However, we do not consider the fault caused Mr R an injustice because if the decision had been properly recorded, it is likely the Panel’s decision would have been the same.

The complaint

1. The complainant, who I refer to as Mr R, is making a complaint related to an unsuccessful school admissions appeal for his son, who I refer to as Child Z. Specifically, Mr R says:

1. the appeals panel heard two separate appeals for different school during the appeal hearing, meaning each were not assessed on their merits;

2. the person appointed to help him during the appeals process was also acting for the Council in a capacity of representing the schools interests, thereby causing a conflict of interest;

3. the appeals panel did not consider his wife’s medical difficulties as a reason to why Child Z should be admitted to the schools under appeal and;

4. the school that has been offered to Child Z is a considerable distance further than what the Council say it is.

2. Mr R feels the decision by the appeals panel is prejudiced and that not admitting Child Z will have an adverse impact on the family. As a desired outcome, he wants a fair appeal hearing.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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).
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended).

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How I considered this complant

6. I have reviewed Mr R’s complaint to the Ombudsman and his appeal to the school admissions appeal panel. I have also had regard to the responses of the Council, the notes of appeals clerk and government policy. Both Mr R and the Council received an opportunity to comment on a draft of my decision before a final decision was made.

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What I found

Background and legislative framework

7. In accordance with Section 13 of the Education Act 1996, all local authorities must ensure that primary and secondary education is available to meet the needs of the population in their area.
8. The school admissions appeal panel (the Panel) sits as an independent admission panels for the benefit of children, parents, schools, and academies. It performs a judicial function and must be independent, impartial and transparent in their decision-making at all times. Panel members must not have a vested interest in the outcome of any stages of the appeal or be involved in an earlier stage of the proceedings, for example the decision to refuse admission.
9. The Published Admission Number (PAN) is the maximum number of pupils that the admission authority will admit to each year group.
10. School admission appeals by the Panel are governed by School Admissions Appeal Code (the Code). The Code is statutory guidance and must be followed. When considering an appeal which is not subject to infant class size legislation, the Panel must consider the following:

First stage: examining the decision to refuse admission

11. In the first stage of the decision-making process, the Panel must have consideration as to whether:

• admission arrangements comply with the School Admissions Code 
• admission arrangements were correctly and independently applied
• admission of additional children would prejudice the provision of efficient education or the efficient use of resources

Second stage: balancing the arguments

12. At this stage, the Panel must balance the arguments put forward by both the admission authority and the appellant. It must take into account the appellant’s reasons for wanting their child to attend the school in question, including what it can offer that other schools cannot.
13. If the Panel considers that the appellant’s case outweighs the prejudice to the school, it must uphold the appeal. When making decisions, the panel should:

• consider each point raised by the parties
• communicate to the clerk how each point was considered
• ensure the reasons for the final decision are explicit
• reach a decision by a simple majority of votes cast (where the votes are equally divided the chair has a second or casting vote) and either uphold or dismiss the appeal

After the appeal hearing

14. After the appeal hearing, the clerk should tell the parties of the Panel’s decision. The decision letter must contain a summary of relevant factors that each party raised and the Panel’s considerations. It must also give clear reasons for the Panel’s decision, including how the Panel decided on any points raised by the parties during the hearing.
15. The clerk or chair must sign the decision letter and send a copy to all parties within 5 school days, wherever possible. The clerk should inform all parties if they expect a delay in sending out the decision letter.

Chronology of events

16. In November 2020, Mr R filed an appeal for Child Z to attend the preferred school (School B). He said his appeal was on the grounds that School B is close to his home and because his wife has a medical condition. Mr R says to refuse admission would make family life difficult.
17. At the same time, Mr R also appealed another decision by the Council to refuse Child Z to another preferred school (School A).
18. In early January 2021, the Panel heard Mr R’s appeals for both School A and School B. With respect to the appeal hearing for School B, the notes of clerk demonstrate the Panel had regard to whether the admission arrangements complied with the law and Code. The Panel resolved that they had and had been correctly applied.
19. Second, the Panel considered the representations made by School B not to admit Child Z. The Panel noted School B’s concerns it is currently oversubscribed and above the PAN. It also noted that there was not enough room or resources at School B to facilitate an additional year group or staffing to accommodate another child. School B also said it staff were under pressure to assist a with special educational needs and that it would be unable to divert staff away to support additional children. On that basis, the Panel accepted School B’s point that to admit any additional children would prejudice the provision of efficient education or the efficient use of resources.
20. Finally, the Panel moved to consider whether the circumstances and needs of Child Z and Mr R’s family outweighed the prejudice to School B. The notes of the clerk demonstrate the Panel considered this issue. However, it referenced the circumstances and needs of Child Z and Mr R’s family as being the same as the appeal hearing for School A. The notes of the Panel hearing for School B do not specify what the needs of Child Z and Mr R’s family are or how they do not outweigh School B’s case against admission. Instead, the notes are limited to saying the issues are the same as the appeal hearing for School A.
21. In January 2021, the clerk issued Mr R the decision letter following the appeal hearing. The decision was not to admit Child Z to School B on the grounds it was oversubscribed and faced financial pressures, as well as challenges supporting children with special educational needs. Also, the clerk noted Mr R considered the school offered by the Council (School C) was too far away and his wife would have difficultly helping Child Z with travel due to her health. However, the clerk said the Panel felt the medical information provided by Mr R did not evidence that School B was the only school which could accommodate Child ZB and the family’s needs. On that basis, the clerk said the Panel’s view was Mr R’s case did not outweigh the prejudice to School B should it allow admission.

My findings

22. Importantly, my findings in this complaint and draft decision are strictly limited to Mr R’s appeal for School B and the Panel’s consideration of that appeal. The Ombudsman has received a separate complaint for the appeal of School A and this will be dealt with by way of a separate process of decision-making.
23. By law, I cannot question the merits of the Panel’s decision to refuse admission to Child Z if it followed the Code without fault. I must therefore have regard to whether Mr R’s appeal for School B was conducted procedurally correct.
24. I am satisfied the Panel properly had regard to the Code. It also had regard to School B’s admission arrangements and the pressures it faces. By considering the factors outlined in paragraph 19, the Panel resolved that to admit Child Z would prejudice the provision of efficient education or the use of resources.
25. The Panel then attempted to weigh this against Mr R’s reasons for appeal, specifically the matter of his wife’s health condition. However, the Panel did not consider whether this important factor outweighed the prejudice to School B. This is because the notes of clerk said the issues in this respect are the same as the appeal hearing for School A. This does not demonstrate the appeal hearing for School A was conducted on its individual merits. For that reason, I do not consider record shows the Panel properly carried out the balancing test referred to at paragraphs 12 to 13. I have therefore determined the Panel was at fault.
26. I must therefore consider whether Mr R has suffered an injustice because of the fault identified. This means I must decide whether he has suffered serious loss, harm or distress. In my view, Mr Z presented the same arguments for both School A and School B. The appeal hearing for School A was conducted correctly and without fault and the Panel decided not to admit Child Z. This is because the medical evidence presented by Mr R in respect of his wife’s medical condition did not stipulate that Child Z must attend either School A or School B. On this basis, had the Panel conducted the appeal hearing without fault, I do not consider it would have made a different decision not to admit Child Z. For that reason, I do not consider Mr R has suffered a significant injustice and so I will not recommend a remedy of a fresh appeal.
27. Finally, Mr R has said the person appointed to assist him during the appeals process was also acting for the Council during the appeal hearing. Specifically, he says this individual was the presenting officer who put forward the School B to refuse Child Z admission. He feels this constitutes a conflict of interest. However, I have not found any evidence of a conflict or that this matter prejudiced the decision of the Panel. Further, the Panel took its decisions independent of the individual referred to by Mr R. For instance, he did not undertake the balancing test to determine whether Child Z would be admitted. For those reasons, I do not consider the Council was not a fault in this respect.

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Final decision

28. There was fault by the Panel for failing to consider Mr R’s appeal for School B on its individual merits. However, I do not consider the fault caused Mr R a significant injustice because it is unlikely Child Z would have been admitted but for the fault.

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Investigator's decision on behalf of the Ombudsman