Summary: The Ombudsman found fault by the preferred school on Mrs S’s complaint about the appeal panel failing to properly consider her submissions when it rejected her appeal against the decision to refuse her son a Year 7 place. The record of the decision-making process is unclear, proper reasons for the decision were not made, and nor was the decision properly explained to her. The agreed action remedies the injustice caused.

The complaint

1. Mrs S complains the appeal panel failed to properly consider her submissions when it rejected her appeal against the decision to refuse her son a place in Year 7 at the preferred school; as a result, this causes her stress because taking him to the allocated school will cause logistical problems as her other children attend different schools and she also looks after her elderly mother-in-law.

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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)

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School Admission Appeals Code (February 2012)

4. Appeal panels must follow the 2-stage decision making process for this type of appeal. (paragraph 3.1)
5. 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)

6. 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)
7. 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.
8. Second Stage: The panel must balance the prejudice to the school against the appellant’s case for admission of their child to the school. 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)
9. 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)
10. The clerk must communicate in writing the decision of the appeal panel, and the reasons for it, to the local authority, governing body, and parents concerned. (paragraph 6.7)

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How I considered this complaint

11. I considered all the information Mrs S sent, the notes I made of my telephone conversation with her, as well as the response I received from the school, and the local education authority, to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Mrs S and the school. I considered their responses.

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What I found

12. Mrs S has 6 children aged between 8 to 18 years old. She applied for her son, T, to attend Year 7, starting in September 2021, at the preferred school. Her preferred school is a Catholic faith school. T is not a baptised Catholic but 2 of his sisters already go there. The school governors, as admissions authority, considered her application for a place. They refused it because the 125-place year group was full.
13. Mrs S appealed this decision to an independent appeal panel. She is unhappy the panel refused her appeal and does not believe it properly considered her submissions. During the appeal, she explained the logistical difficulties sending T to the allocated school would cause her. This is because between them, the children would attend 3 different schools. She could not get them all there on time. In addition, she is the sole carer of her elderly mother-in-law who lives close to the preferred school.
14. Mrs S explained the appeal was heard online because of Covid-19 restrictions. As one panel member’s camera was not working, the hearing was audio only.
15. About a week after the appeal, she received a letter from the clerk to the appeal panel explaining the panel’s decision to refuse it. It explained T was allocated category 6 under the school’s admission policy. This is for, ‘Other children who have a sibling attending the school at the date of admission’. The last category a child was allocated a place under was category 4. This, and all higher categories above it, are for children baptised as Catholic.
16. The letter also explained the panel was satisfied:

• The admission arrangements were lawful and correctly and impartially applied: Places were allocated according to the admission policy.
• Prejudice arose to the school: It noted the size of the school, the design of classrooms, the number of set groups in the year, the limited resources of IT/computing/design technology, food technology, and art. It noted the numbers restrict free movement around the school, cause overcrowding, health and safety concerns, pressure on communal spaces, as well as on the canteen/dining. There was a higher-than-average group of disadvantaged children and those with special educational needs. Admission would cause increased workloads and planning for staff. Not all baptised children received a place. To admit further children to Year 7 would, ‘prejudice the health & safety and wellbeing of children, the quality of educational provision and the efficient use of resources in the school’.

17. The letter went on to explain what the panel considered at the second stage of its decision-making process. It outlined Mrs S’s submissions, some additional to the ones she made on her appeal form. It also referred to the questions the panel asked her. The panel decided, after ‘balancing the arguments’, that to admit further children would cause prejudice to the efficient provision of education or efficient use of resources. It told her the reason for this decision is, ‘based upon the current oversubscription in the year group and across the whole school’. It went on to say further admissions would cause overcrowding and prejudice the education of other children in the school and would not be an efficient use of resources.
18. The letter concluded by saying having considered all the circumstances, the panel did not find the facts of her case were sufficiently strong to outweigh the prejudice caused by admitting further children to the year group.

Analysis

19. I found fault on this complaint. In reaching this conclusion, I took the following into account:
1. In response to my enquiries, the presenting officer for the school who attended the hearing confirmed first and second stage hearings were individually heard at each of the appeal meetings.
2. The clerk’s notes show Mrs S’s hearing was held on 10 May 2021. On the last page of these notes, the clerk records the ‘Decision’ of the appeal. As the decision forms part of the notes made during the hearing, and in the absence of any other date recorded on this section of the notes, it is reasonable to conclude the decision notes were made the same day as the hearing.

In response to my draft decision, the clerk confirmed the decision was not added to the notes on the same day of the hearing. The clerk added them later for each individual hearing and accepts she should have dated this to make it clear when the panel reached the decision. While I note what the clerk says, the problem is the evidence I have is not a clear, accurate record of the decision-making process. This is fault.

3. The clerk’s notes under ‘Decision’ state ‘3 NO’, which I assume was a record of the voting pattern of the 3 panel members, and their decision to reject her appeal. The record notes: her son was not baptised; he had existing siblings at the school; the allocated school was closer to home; Mrs S’s caring responsibilities; and ended by stating it was, ‘reasonable for children to travel’.
4. This note gives the strong impression of the panel making the second stage decision before it reached a first stage decision. This is because there is no mention of the first stage decision. The Code requires the panel to decide the first stage before moving on to the second stage. This is fault.
5. I was also sent a copy of the clerk’s notes of the decision-making meeting dated 13 May. This is 3 days after Mrs S’s hearing. It contains a section after the first stage decision which records the panel going on to consider the individual cases on all the appeals and balancing arguments for each one. There is no separate note on the document of the panel’s balancing decision made that day for each case.

Again, in response to my draft decision, the clerk said she made notes on the bottom of the notes for each day for each separate hearing. I remain satisfied there was no separately dated note of the panel’s balancing decision made that day for each case.

6. I assume what might have happened on 13 May, when the panel met again to decide each appeal, was this: once the panel was satisfied about the first stage decision, it then went on to make the second stage decision on each appeal. The clerk recorded the second stage decision at the end of notes made during the hearing for each case.

In response to my draft decision, the clerk confirmed this is what she did. The clerk accepts she should have dated the notes correctly and ideally, written the notes separately on a separate piece of paper, clearly dated.

7. The problem is the process followed is not clear. The evidence itself is confusing. The interpretation in f) may not be correct. From the written record, it is also possible for the second stage of the decision-making process to have taken place before the first stage for the reasons given in b). The clerk was under a duty to keep an accurate record of the hearing and I consider the failure to do so amounts to fault.
8. If the process outlined in f) was correct, I am not satisfied the notes of the decision complied with the Code. This is because the notes fail to show what the panel considered, how it considered it, and how it balanced her submissions against the prejudice to the school. I consider the failure to properly record the reasons for the panel’s decision is fault.

In response to my draft decision, the clerk stated the panel’s decision-making was clear and complied with the Code. She accepted if any fault was found, it should be because of the lack of clarity in her notes and not the panel’s decision-making.

9. Nor am I satisfied the decision letter sent on 20 May explains how the panel balanced her submissions against the prejudice that would be caused. The reference to the decision being based on the current oversubscription in the year group and school, for example, is more relevant to the first stage decision. I consider this failure to properly explain the decision is fault.

The clerk also accepted, in response to my draft, she may not have included the reasons in the correct section of this letter which gave the impression the process was not followed properly.

10. I am satisfied the identified fault caused Mrs S an injustice in the form of distress. She has the uncertainty of not knowing whether the panel followed the correct procedures when it considered and decided her appeal. Nor does she know whether the outcome of the appeal would have differed if the fault had not occurred.

The clerk accepted the decision letter is not clear and could lead to uncertainty.

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Agreed action

20. I considered our guidance on remedies.
21. The school agreed to carry out the following action no later than 4 weeks of the final decision:
1. To send Mrs S an apology for the failings to: accurately record the decision-making process of the appeal panel; properly record the panel’s decision; explain the decision to her about how the panel balanced her submissions against the prejudice admission would cause;
2. To arrange a new hearing with a different appeal panel to consider her appeal afresh;
3. Review procedures to ensure clear records of the decision-making process are made; and
4. Review procedures to ensure decision letters, and records of decision, give proper reasons for panel decisions.

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Final decision

22. I found fault on Mrs S’s complaint against the school. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman