Summary: Ms B complained about the way in which the School’s Appeal Panel considered Ms B’s appeal against the refusal of a place at the School for her son C. We found no fault in the actions of the School.

The complaint

1. Ms B complained that the Latymer School’s (the School) Appeal Panel (in respect of her appeal for a place for her son, C) failed to properly consider her grounds of appeal. She believes the clerk’s decision letter did not include the main points of her appeal, the clerk was biased towards the school and not all the information relied upon was presented at the appeal. This has caused Ms B significant distress and uncertainty as to her son’s education.

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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 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)
3. Independent appeal panels must follow the law when considering an appeal. The panel must consider whether:
• the admission arrangements comply with the law;
• the admission arrangements were properly applied to the case.
4. The panel must then consider whether admitting another child would prejudice the education of others.
5. If the panel finds there would be prejudice the panel must then consider each appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
6. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.
7. 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

8. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

School’s admission policy

9. The school is a voluntary-aided selective school for secondary age children. Admission is awarded on the basis of academic ability, which is assessed by compulsory tests. The School says only applicants in the top 650 (after academic tests) will be considered selective and only selective applicants will be admitted. But it will make adjustments in accordance with its over-subscription criteria.
10. Applicants sit two test papers. The School marks the first paper and ranks the results. Any applicant ranked below position 650 will be discounted and their second paper will not be marked.
11. The School will then mark the second paper for applicants ranked between 1 and 650 and adjust the positions accordingly. The School will offer places up to its admission number of 192 based on these scores. In the event of receiving more applications than places the School will apply the following oversubscription criteria:
1. Looked After Children
2. Up to 20 applicants in receipt of Pupil Premium. Applicants under this criterion are deemed selective if they are ranked within the top 900 applicants. The number admitted under this criterion can vary from year to year.
3. Up to 20 applicants who show Exceptional Musical Talent will be considered for a music place. Applicants under this criterion are deemed selective if they are ranked within the top 900 applicants. Exceptional musical talent can be demonstrated on any instrument based on assessment with a recognised board. Applicants will usually have achieved at least Grade 5 distinction level, but this will depend on the instrument as well as previous opportunity and experience. Confirmation of this level may be tested by an audition. The decision to audition candidates (or not) or to offer a music place is final. The number admitted under this criterion can vary from year to year.
4. Applicants resident in a defined geographical area in rank order.
5. Applicants resident outside this area in ranked order.
12. The School operates a waiting list of 50 applicants and does not give priority to siblings.

What happened

13. Ms B’s son, C, sat the tests for the School in 2020. After paper 1 he was ranked 581 and after paper 2, 582. Following confirmation of withdrawn applicants, C was in position 366.
14. C also applied under the exceptional musical talent criterion. On 3 November 2020 the School sent a letter declining a place on musical talent without an audition. It said it had received 200 applications for 20 places and 29 had been offered an audition. Ms B queried the refusal as C had a Grade 5 distinction in his instrument. After providing the certificate again the School offered C an audition. It also inadvertently sent Ms B an internal email where members of staff had queried whether C should be offered a place without an audition.
15. C attended the audition but the School concluded on the basis of the audition that he did not demonstrate exceptional musical talent.
16. In March 2021 the School refused a place to C as his ranking was too low and he had not demonstrated exceptional musical talent. He also did not qualify to go on the waiting list.
17. Ms B appealed the decision on three grounds:
• Musical talent.
• High academic aspirations and achievements.
• Personal/family stress during the pandemic.
18. She submitted documents in support of her appeal including C’s grade five distinction certificate, the internal email suggesting C may have qualified for a music place without an audition and the initial refusal under the music criterion.
19. The clerk from a third-party organisation sent a letter to Ms B in April 2021 explaining the process and the purpose of each stage of the process. They also enclosed the School’s supporting papers.
20. Stage one of the appeals process was held on 4 May 2021, where the School presented its case that the school had applied its admission arrangements correctly and to admit further pupils would cause prejudice to the efficient education of the other pupils. Stage two of the process, where Ms B could present her individual case that the reasons for admitting C outweighed the prejudice, was held on 12 May 2021.
21. The notes of the stage one hearing show Ms B asked a question about the music audition process at stage one. The School answered by explaining that to qualify an applicant should usually have achieved grade 5. If 50 grade five pianists applied, they would be auditioned but the School would not admit them all, as it only has 20 places. After parents had asked questions, the Panel adjourned a to discuss the case. It concluded that the school’s admission arrangements complied with the law and the school had applied them correctly and impartially.
22. The notes of the stage two hearing show that Ms B stated her case and the reasons for her grounds of appeal. In respect of musical talent, she said he had reached the required level of distinction at grade 5 and so should have been offered a place. She said she had received confusing letters about the music place and the internal email suggested C’s application had been put into the wrong pile. The audition was last-minute and confusing for C.
23. The head teacher explained that following the internal email which was questioning whether C should have been on the pile for an audition, there was a meeting between the head of music and the administrative team. The head of music was not sure, so gave C the benefit of the doubt and offered him an audition.
24. The notes show the hearing lasted just over half an hour and the Panel then deliberated. Initially two members felt the appeal should not be upheld and one did. But after further discussion the third member changed their mind and agreed the appeal should not be allowed. Their reasons were that the school had not made an error, Ms B did not fully understand the music criterion and there was no compelling reason to allow the appeal.
25. The clerk notified Ms B of the decision on 17 May 2021. They gave a full summary of both stages of the process. In respect of stage two it summarised Ms B’s grounds of appeal and then the findings of the Panel. They said:

“The panel carefully considered the educational, medical and social aspects of your appeal and were sympathetic to your child’s circumstances, however after considering the evidence they concluded that the Latymer School was not best placed to meet C’s needs… no independent professional medical advice or other reports were presented to show that the Latymer School was the only school capable of meeting your child’s educational or social needs…they concluded that C has been allocated a funded place at an alternative school that is able to provided an efficient education. It was the view of the panel that it is an inefficient use of resources to overcrowd one school when there are places available in other schools… The panel considered your case very carefully and after a lengthy discussion on balance decided that your reasons did not outweigh the degree of prejudice to the provision of efficient education and efficient use of resources that would arise if another child was admitted to the school.”

26. Ms B complained to the Ombudsman.

Analysis

27. I cannot identify fault with way the Appeal Panel considered Ms B’s appeal. It held a two-stage appeal process, sent details of the School’s case in advance of the hearing and allowed Ms B to fully participate in both stages. It considered her specific arguments relating to the confusion over the music place, her son’s academic ability and the personal reasons which may have affected his performance. It concluded that while sympathetic to his circumstances he had not met the academic or musical criteria and Ms B had not submitted any other evidence to show that his circumstances outweighed the prejudice that would be caused to the efficient education of the other children if it were to admit C.
28. In respect of the music criterion, the School had initially declined a place because it had not received C’s exam certificate showing he had reached grade 5 distinction. Once it received this, it offered him an audition. On the basis of the audition, it decided he did not qualify. I cannot find fault with this process. The published admission criteria make clear that the decision on exceptional musical talent will be made by the School. In C’s case, once it had the grade 5 certificate it offered him an audition but concluded he did not demonstrate exceptional musical talent.
29. The Panel felt Ms B misunderstood the music criterion and believed that if applicants showed they had reached a distinction at grade 5 then they should be offered a place. The Panel explained that the decision on a music place for C was dependent on the outcome of the audition. Whether or not, the School had made a mistake over which pile he was in, it corrected that uncertainty by offering him an audition.
30. The decision letter was detailed and offered a full explanation for the decision. The only comment I would make is that the clerk to the Appeal Panel needs to ensure they explain the correct test in the decision letter. The test at stage two is whether the appellant has demonstrated that their arguments why the child should be admitted to the school outweigh the prejudice that would be caused to the efficient education of the others by admitting the child. I consider this test was correctly expressed at the end of the letter but earlier on incorrect references were made to available places at other schools which is not a relevant consideration.
31. There is no evidence that the clerk was biased or that the panel did not consider all of Ms B’s arguments.

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Final decision

32. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the School towards Ms B.

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Investigator's decision on behalf of the Ombudsman