Summary: The Ombudsman found fault on Miss J’s complaint about the appeal panel’s failure to properly consider her appeal against the preferred school’s decision to refuse her son a Year 7 place. Information presented and considered by the panel was not sent to her before the hearing. The record of the decision-making process is unclear and there is no record of the members’ vote. The decision letter fails to explain the panel’s decision and was sent late. The agreed action remedies the injustice caused.

The complaint

1. Miss J complains the appeal panel failed to properly consider and decide her appeal against the school governors’ decision to refuse her son a place in Year 7 at her preferred school; as a result, this caused great distress for the family as the allocated school is more than 5 miles away and will cause childcare problems.

Back to top

The Ombudsman’s role and powers

2. If we are satisfied with a body in jurisdiction’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)

Back to top

School Admission Appeals Code (February 2012)

4. The admission authority must supply the clerk to the appeal panel with all relevant documents needed to conduct the hearing in a fair and transparent manner. This includes details of how the admission arrangements and co-ordinated admission scheme apply to the appellant’s application, the reasons for the decision to refuse admission, and an explanation as to how the admission of an additional child would cause prejudice to the provision of efficient education or efficient use of resources. (paragraph 2.9)
5. The clerk must send all papers required for the hearing to the parties and members of the panel a reasonable time before the date of the hearing. (paragraph 2.10)
6. Appeal panels must follow the 2-stage decision making process for this type of appeal. (paragraph 3.1)
7. First stage: the panel must consider:

• Whether the admission arrangements complied with the law; and
• Whether the admission arrangements were correctly and impartially applied in each case. (paragraph 3.2)

8. The panel must then decide whether the admission of further children would prejudice the provision of efficient education or the efficient use of resources. (paragraph 3.3)
9. A panel must go to the second stage where: it finds the admission arrangements complied with the law, were correctly and impartially applied, or where they were not, the child would not have been offered a place anyway and admitting further children would prejudice the provision of efficient education or efficient use of resources.
10. Second Stage: The panel must balance the prejudice to the school against the appellant’s case for admission of their child. It must take account of the appellant’s reasons for expressing a preference for the school, including what the school can offer the child the allocated or other schools cannot. Where the panel considers the appellant’s case outweighs the prejudice to the school, it must uphold the appeal. (paragraph 3.8)
11. The clerk must ensure an accurate record is taken of the points raised at the hearing including the proceedings, attendance, voting, and reasons for decisions. (paragraph 2.26)
12. Panels must ensure appeals are decided by a simple majority of votes cast. (paragraph 2.23)
13. The decision letter must give clear reasons for the panel’s decision including how, and why, any issues of fact or law were decided during the hearing. (paragraph 2.25)

Back to top

Guidance: changes to admission appeal regulations during Covid outbreak (1 February 2021)

14. The government issued guidance explaining the temporary changes to managing appeals during the Covid-19 outbreak. (The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020)
15. Face to face hearings cannot take place and should be conducted by telephone or video conference.
16. Decision letters should be sent within 7 calendar days of the hearing.

Back to top

School admission policy (2021/2022)

17. The published admission number for Year 7 is 180. (paragraph 1.1)
18. All students applying for a place must attend a banding test. Students are placed in one of 4 ability bands after taking a standardised assessment to ensure a mixed ability intake. Students are allocated a band according to their scores in the banding test (a form of literacy test). (paragraph 1.2)
19. Twenty five percent of the number of students offered places will come from each of the four bands. (paragraph 1.3)
20. If there are more applications than places in each band, students are offered places in priority order using the following criteria: looked after children; those with siblings at the school at the time of attendance; children of school staff; distance. (paragraph 1.5-1.5.4)

Back to top

How I considered this complaint

21. I considered all the information Miss J sent, the notes I made of the telephone conversation I had with her and her friend, as well as the school’s response to my enquiries, a copy of which I sent her. I did not send her a complete copy. This is because some of it contains information about third parties which needs to remain confidential. I sent a copy of my draft decision to Miss J and the school. I considered their responses.

Back to top

What I found

22. Miss J applied for a Year 7 place for her son, K, at her preferred school to start in September 2021. He sat a banding test for a place there.
23. The school’s governors, as admission authority, refused him a place because the year was oversubscribed. All 180 places were allocated. Miss J appealed the decision.
24. Before the appeal, the school sent Miss J a copy of its submissions to the panel. This explained there were 29 more applications than places in his ‘reading performance group’ (the group). Other applicants were considered to have a better claim to a place under its admission policy. The group has 5 priority categories. The last category is for children who live nearest the school as measured in a straight line from the school’s entrance to the child’s address. The last child admitted lives 2.277 miles from the school while K lives 2.383 miles.
25. In her appeal submissions, Miss J said she appealed because the allocated school is more than 5 miles from their house, K has a health issue, and she worries about him travelling for more than an hour on public transport. Miss J works close to the school and K’s grandparents, aunt and cousin all live nearby. In addition, K struggles with change and her husband works away a lot. The allocated school is a Catholic faith school, and the family are not Catholic.
26. An independent appeal panel heard her appeal in May 2021 and rejected it.
27. Miss J has concerns about how the panel dealt with her appeal. During the hearing, she says she had the impression members were not interested in her appeal. She describes one member fiddling with her glasses throughout. In response to my draft decision, the clerk to the appeal panel did not accept this claim and states the member concerned was the chair. It is hard to look disinterested when chairing a hearing.
28. Miss J also believes the panel made up its mind about her appeal before the hearing. In addition, she questions why another child received a place without sitting an assessment. She believes K was disadvantaged by the sibling link category in the school’s admission criteria as he has no brother or sister at the school, although does have cousins there.
29. I have seen a copy of the clerk’s typed notes of the appeal hearing held on 18 May 2021. This sets out both the school’s presenting officer’s case and what Miss J said in her written submissions and verbally at the hearing. The notes record the panel deciding all the admission procedures were correctly and impartially applied. It decided only 2 appeals should be upheld and K’s was not one of them. It noted the successful appeals were more deserving of a place.
30. On 8 June, the clerk wrote to Miss J, explaining the panel refused their appeal, saying:

• the panel first considered the law on admissions and guidance issued by the department of education and was satisfied the school’s duty to offer a place at the school did not apply;
• it considered the reasons for her preference and whether the degree of prejudice caused outweighed them;
• it set out Miss J’s case;
• it set out the school’s case; and
• while sympathetic, the panel considered the above information and carried out the ‘balancing act’ between K’s needs and the effect admitting another child would have on the school. The panel felt it could not uphold the appeal.

31. In response to my enquiries, the clerk explained:

• There were several internet problems during the hearing. This meant the clerk missed part of the proceedings.
• When the problem was resolved, and he re-joined the hearing, the panel had moved to the second stage of the hearing.
• He presumed the panel was satisfied with the first stage. The clerk explained as it was an experienced panel, members would only move to the second stage of the decision-making process if satisfied at the first stage.
• He clarified with the panel that it was satisfied with the first stage, and it confirmed it was. The clerk said on the previous appeals before Miss J’s, the panel considered admission procedures were properly followed.
• The panel made the second stage decision at the end of its consideration of all the appeals and was unanimous. The clerk said, ‘The Panel felt that there was a maximum number that the school could take, given the arguments put forward by the school, and therefore decided to grant 2 appeals (as referred to above)’. The 2 successful appeals were considered by the panel to have more compelling arguments than K.

Analysis

32. I found fault on this complaint for the following reasons:
1. I am satisfied information was presented to the panel by the school’s presenting officer during the hearing which was not sent to Miss J before the hearing. For example, the clerk’s notes record the presenting officer referring to the refurbishment of the school and the impact this had on the playground area. This was not in the information sent by the school before the hearing. This was new information. This is a breach of the Code and amounts to fault.
2. I am satisfied information contained in the decision letter sent following the appeal was also not sent to her before the hearing. Nor have I seen evidence of it being produced by the presenting officer during the hearing. For example, the decision letter refers to: resistant material classes having 8 classes instead of 7 due to safety; 10-20% of classes contain 29-30 pupils; the average class size being 26; one classroom having 23 computers; two pupils to a computer; redevelopment works to the school meaning one third of it was not in use; the presence of a temporary accommodation block; this reducing the amount of outdoor available space by 50%; the need for split lunches. The failure to provide her with this new information before the hearing breaches the Code and amounts to fault.
3. The clerk’s notes of the appeal hearing, and the panel’s decision, do not fully comply with the Code about the first stage of the hearing. The notes do not record the panel satisfying itself the admission arrangements complied with legal requirements, for example. This is fault.
4. Nor does the record show the panel went on to consider the admission of another child would cause prejudice to the provision of efficient education or the efficient use of resources at the first stage. Instead, the notes refer to the panel deciding, ‘only two appeals should be granted, when balancing the prejudice to the school against that of the child’. It is not clear, therefore, whether the panel decided the school could admit another 2 children at the first stage because it had the capacity to do so/would not prejudice the provision of efficient education or efficient use of resources or, whether this was decided at the second stage of the hearing. In response to my draft decision, the clerk said it was considered at the second stage. This lack of clarity in the record about the process followed is fault.
5. The clerk’s note of the decision does not explain how, if this was considered during the second stage of the hearing, the panel balanced Miss J’s reasons against the prejudice that would be caused to the school. I consider this was a failure to make accurate and clear notes of the hearing under the Code and amounts to fault.
6. In response to my enquiries, the clerk said the internet connection was bad during Miss J’s hearing which meant he missed the part when the panel decided the first stage. The clerk explained he asked the panel if it had been satisfied with this stage when he re-joined. The panel said it was and he noted it decided other appeals before hers and satisfied itself about this stage. I consider the clerk should have made a note of both the loss and length of disconnection, his question to the panel, and the panel’s response. In response to my draft decision, the clerk explained the failure to record this in the notes was due to wanting to record as much as possible when re-joining the hearing and there were other appeals waiting. While I appreciate the pressures on the clerk, I consider this was a breach of the Code as he failed to make accurate notes of the hearing.
7. The decision letter failed to properly explain how the panel reached its decision. This is fault as it breaches the Code.
8. There was no record of the panel’s vote on the decision.
9. The decision letter was not sent to Miss J within 7 calendar days.
10. I am satisfied the above identified fault caused Miss J an injustice. She has the distress of not knowing whether the outcome of the appeal would have differed had these failures not taken place.
33. I considered information received about the other child Miss J said received a place. On the information received, I see nothing to suggest the child improperly received a place.
34. Many schools use a criterion of a sibling link in their admission arrangements which means those without a sibling at school will clearly have lower priority than those who do. There is a process an admission authority must follow when proposing admission arrangements. During this, any objection to proposed arrangements is made to the Schools Adjudicator, not the Ombudsman.

Back to top

Agreed action

35. I considered our guidance on remedies.
36. The school agreed to carry out the following within 4 weeks of the final decision on this complaint:
1. Send Miss J a written apology for failing to: not send her all the information presented to the hearing and referred to in the decision letter before the hearing; have a clear record of the decision-making process followed; explain to her how the panel reached its decision; record how members voted; send her the decision letter within 7 days;
2. Arrange the rehearing of Miss J’s appeal with a fresh appeal panel; and
3. Consider and review the training needs of the clerk.

Back to top

Final decision

37. I found fault on Miss J’s complaint against the school. The agreed action remedies the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman