Summary: The Ombudsman found fault by the Council on Mrs Q’s complaint about how the appeal panel considered her appeal against the Council’s decision to refuse her son a place in Year 7 at her preferred school. It failed to ensure proper records of the hearing were made and the appeal panel wrongly assessed it at the second stage of the hearing. The agreed action remedies the injustice caused.

The complaint

1. Mrs Q complains the appeal panel failed to consider her submissions properly and fairly against the Council’s decision to refuse her son a place in Year 7 in September 2021 at her preferred school: as a result, she was caused distress, anxiety, is deeply concerned about transport arrangements needed for the allocated school, as well as the impact this may have on her ability to work and her son’s ability to make local friends.

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The Ombudsman’s role and powers

2. 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)
3. 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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The School Admission Appeals Code (February 2021)

4. Under the Code, the clerk to the appeal panel must provide an independent and impartial service. The clerk’s role includes keeping an accurate record of proceedings. (paragraph 1.11)
5. The Code states appeal panels must follow a 2-stage decision making process for this type of appeal:
1. First stage: The panel must consider whether the admission arrangements:

• complied with the law; and
• were correctly and impartially applied in this case.

It moves on to the second stage where it finds the admission arrangements complied with the law or, if they had not, the child would not have been offered a place anyway. To move to the next stage, the panel must also find the admission of another child would prejudice the provision of efficient education or efficient use of resources. Only then does it move to the:

b) Second stage: The panel must balance the prejudice to the school against the appellant’s case for the child’s admission to the school. It must, therefore, take account of the appellant’s reasons for expressing a preference for the school. If the appellant’s case outweighs the prejudice to the school, it must uphold the appeal. (paragraphs 3.1-3.10)

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How I considered this complaint

6. I considered all the information Mrs Q sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I did not send her a complete copy because it contains information about a third party which needs to remain confidential. I sent Mrs Q and the Council a copy of my draft decision. I considered their responses.

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What I found

7. Mrs Q appealed the admission authority’s (the Council) decision to refuse her son a Year 7 place in September 2021 at his preferred secondary school. Instead, it offered him a place at her second preference school. She is unhappy because they plan to move and live closer to the preferred school before the new term starts. Slow building works, because of Covid-19 restrictions, delayed their move to the new property.
8. In her appeal submissions, Mrs Q explained they were converting another property closer to the preferred school within its catchment area. It would be a shorter, and safer, walk for her son to the school. She explained her son is shy but has friends and family at the preferred school.
9. Due to Covid-19 restrictions, her appeal against this decision was dealt with by telephone. She had one call, which was for the second stage hearing. During the call, she made the same submissions she made in writing. The appeal panel asked her whether her son had friends at the preferred and allocated school.
10. Mrs Q claims 1 of her son’s friend’s appeals was successful even though the child lives near her.
11. Before the hearing, the Council sent Mrs Q its guide about the appeal (‘Independent Admission Appeals Panels: A Guide for Parents (during the Coronavirus Pandemic 2020/21)’). This explained:

• the government issued social distancing rules which means in-person hearings are not allowed;
• the government also issued guidance about how hearings could be held remotely by telephone link, video link, or by written submissions (Department of Education guidance: ‘Changes to the admission appeals regulations during the coronavirus outbreak’ (24 April 2020));
• The guidance did not replace The School Admission Code (2014) or The School Admissions Appeals Code (2012) but, made temporary changes to the appeals process. All appeals between April and September 2021 must be held remotely and decided as soon as is reasonably practicable;
• At the hearing, the presenting officer puts the case for the admission authority (Stage 1), parents and the panel can ask the presenting officer questions, then the parents put their case to the panel (stage 2). The presenting officer and panel can ask the parents questions. The presenting officer sums up the admission authority’s case and then the parents do the same; and
• At stage 1, the panel must consider: i) whether the admission arrangements complied with the law; ii) whether the admission arrangements were correctly and impartially applied in the case. The panel must decide whether admission of more children would prejudice the provision of efficient education or the efficient use of resources.

12. A letter sent to her before the hearing explained she had 3 working days from receiving the school’s case to contact the clerk with any questions she wished to ask. The admission authority then had 3 days to respond to her questions. It would send her the responses to her, and other parents’, questions. The panel will meet with the clerk a week before the stage 2 hearing to decide if the school has proved its case. If it has, it moves on to the next stage of the appeal.
13. At stage 2, the panel must balance the prejudice to the school against the parents’ case for admission.
14. In the Council’s submissions, it stated the last place allocated at the preferred school was to a child living 1.463 miles from it outside the catchment area. Mrs Q’s son lives 1.725 miles away. It also explained the Year 7 admission number was reached, the number of children attending with special educational needs, the number and size of classrooms, the use of the hall and the library for teaching, congestion, and the lack of indoor social areas. It noted it had a small canteen and a lack of IT suites and science laboratories. In addition, there are traffic considerations as there is no bus service to the school from two areas.

Analysis

15. I make the following findings on this complaint:
1. Although the 2 sets of guidance the Council sent Mrs Q failed to explain the stage 1 hearing would be a written only appeal, it gave her this information in a letter before the hearing explaining arrangements were made for the panel to hear her appeal.
2. The clerk’s notes of the stage 1 hearing state all panel members agreed the published admission number was reached. It recorded one member expressing concern about health and safety issues and risks round the school while another noted the higher-than-average number of children in care at the school and those with special educational needs. The third member expressed disappointment only, ‘some information provided in the answers to the questions submitted’. It ended by noting all the members agreed the ‘school had proved its case’.
3. In response to my enquiries, the Council said the clerk asked the panel whether the admission arrangements complied with the law and whether they were correctly and impartially applied to this case. It said the clerk also asked them whether the admission of additional children would prejudice the efficient education or the efficient use of resources. The Council accepts the clerk failed to record these questions, and the panel’s responses. To avoid this happening in the future, it offered to take steps to remind all clerks about the need to take detailed notes during school admission appeals and will provide training, where appropriate.
4. I am satisfied the failure to properly record the panel’s decision at stage 1 amounts to fault. This is because there was a failure to accurately record what happened. This means there is no record of their deliberations. There is no record of the panel deciding whether the admission arrangements were lawful. Nor is there a record of the panel deciding whether they were properly applied in Mrs Q’s case or of it considering whether the admission of her son would prejudice the efficient education or the efficient use of resources.
5. The notes made by the clerk for the stage 2 hearing, about a week later, record their building works were not complete, with no date for completion, and the family continued to live out of area. It ends by recording the panel decided, ‘There are no educational reasons’ for her son to attend the preferred school.
6. The Council also accepts the clerk failed to fully record in the notes the panel’s decision at stage 2.
7. I am satisfied the failure to properly record the panel’s decision at stage 2 amounts to fault. This is because there was a failure to accurately record what happened. There is no record of the panel’s deliberations showing it weighed Mrs Q’s reasons for her son to go to this school against the prejudice this would cause. The panel’s decision that there were, ‘no educational reasons’ for her son to attend the preferred school is not the correct assessment. This is also fault.
8. I have read the decision letter sent to Mrs Q following the appeal. While this set out in some detail what the panel considered, this was not supported by what the clerk’s notes recorded.
9. I am satisfied the fault found caused Mrs Q an injustice. This caused her distress. She lost the opportunity to have her appeal properly heard. She also has the uncertainty, for example, of not knowing whether the outcome of the appeal would have differed but for the fault found.
10. I found no fault on Mrs Q’s complaint about the appeal outcome of her son’s friend. I cannot provide any details for reasons of confidentiality but, I have read the appeal papers for that case.

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Agreed action

16. I considered our guidance on remedies.
17. The Council agreed to carry out the following:
1. Send Mrs Q an apology for the failure to: properly record the stage 1 hearing; properly record the stage 2 hearing; apply the correct test at the stage 2 hearing;
2. Promptly arrange a rehearing of Mrs Q’s appeal;
3. To remind all appeal panel clerks of the need to make and retain a proper record of the stage 1 and 2 hearings and to consider their training needs;
4. To remind all appeal panel clerks of the need for panels to carry out the correct assessment at stage 2 hearings and to consider their training needs;
5. To remind all appeal panels of the need to carry out the correct assessment at stage 2 of the hearing and to consider their training needs; and
6. Review the appeals this appeal panel refused for this school to ensure it carried out the correct assessment at stage 2 of the hearing and if it did not, to offer the appellants the opportunity to have a rehearing.

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Final decision

18. I found fault on Mrs Q’s complaint against the Council. The agreed action remedies the injustice this caused.

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Investigator's decision on behalf of the Ombudsman