Summary: Mrs B complains an independent school admissions appeal panel did not properly consider the details of her appeal. She says the School did not properly consult on changes to its admissions arrangements, which disadvantaged her son. She says the appeal panel did not make any findings about this. The Ombudsman finds fault in how the panel considered Mrs B’s appeal.

The complaint

1. The complainant, who I refer to as Mrs B, complains about how an independent appeal panel considered her appeal against the decision not to offer her child a place at the School. Mrs B says the School did not properly consult on changes to its admissions arrangements, which disadvantaged her application for a place. She says the appeal panel did not properly consider or make any findings about how the School consulted.

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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. If we are satisfied with an authority’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

4. I considered the information Mrs B provided and spoke to her about the complaint, then made enquiries of the School. I sent a copy of my draft decision to Mrs B and the School for their comments before making a final decision.

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What I found

Law and Guidance

5. Independent appeal panels must follow the law when considering an appeal. At Stage 1 the panel must consider whether:
• the admission arrangements comply with the law;
• the admission arrangements were properly applied to the case.
6. The panel must then consider whether admitting another child would prejudice the education of others. If it does not prejudice others, the panel must uphold the appeal.
7. If the panel finds there would be prejudice, it must then proceed to Stage 2. At this stage it must 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.
8. 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.
9. The School Admissions Code (“the Code”) says admissions authorities must consult on any changes to their admissions arrangements. It says failure to consult effectively may be grounds for subsequent complaints and appeals.

Background

10. The School is a Church of England secondary school. The School has published admissions arrangements, which include an oversubscription criteria with a scoring system at ‘D1’ based on families’ religion, denomination and how regularly they attend their place of worship. Prospective students of an Anglican background score higher than those of other denominations. Mrs B is non-Anglican Christian.
11. In the admissions arrangements that were in place pre-2021, there were two combinations of Anglican applicant points that ranked higher than the highest-ranking non-Anglican.
12. In late 2019 the School decided to consult on a change to its admissions arrangements for 2021. The proposed changed removed an entrance examination and adjusted the scoring system. Under the proposed system there were five combinations of Anglican applicant points that ranked higher than the highest-ranking non-Anglican.
13. The consultation period opened in December 2019 and closed in January 2020. Mrs B submitted comments on the new arrangements asking the School to reconsider how the church points were allocated so as not to disadvantage non-Anglican applicants.
14. In March 2020 the School published its new admissions arrangements on its website. The scoring system in the new arrangements was different to that in the one sent out for consultation. It weighted points in favour of Anglican applicants more heavily and there were now 10 combinations of Anglican applicant points that ranked higher than the highest-ranking non-Anglican.
15. In September 2020 one of Mrs B’s children was admitted to the School, having been successful under the previous admissions arrangements.
16. In November 2020 Mrs B applied for her younger child to start at the School in 2021. In March 2021 the School notified Mrs B her application was not successful under the new admissions arrangements. The School was heavily oversubscribed. No non-Anglican applicants were successful for a place under D1 of the oversubscription criteria in that year.
17. Mrs B appealed the decision based on three reasons:
• Reason 1 – The School failed to consult effectively on its admissions arrangements. It published a significantly changed final oversubscription criteria compared to the one it consulted on, which further disadvantaged non-Anglicans.
• Reason 2 – The impact on the family of not having both children attending the School.
• Reason 3 – Emotional and mental welfare of her children, due to the support they provide to each other and the difficulty her eldest child had in his first year at the School.
18. Mrs B attended the appeal hearing and gave verbal representations online. The panel also heard representations from the School.
19. The appeal panel outcome letter says that in reaching its decision at stage one, it was satisfied the admissions arrangements complied with the relevant legislation and the Code and was correctly and impartially applied.
20. The panel went on to consider at stage two, whether Mrs B’s case for admitting her child outweighed any prejudice to the School. It found her case did not outweigh the prejudice to the School of admitting more students than its published admissions number.
21. Mrs B contacted the clerk of the appeal panel as she did not believe the panel had addressed the points of her appeal about consultation. The clerk said the panel had considered Mrs B’s case about the consultation process and, in light of information provided by the School, were satisfied the School consulted appropriately. She said the School confirmed no non-Anglican applicants would have been successful this year regardless of whether the 2021 or 2020 arrangements were in place.
22. The chair of the appeal panel provided a response to my enquiries. The chair said she checked the admissions arrangements on the School’s website and saw they were agreed and ratified in July 2020. She said the appeal panel heard over a hundred appeals and it became apparent from information provided by the School that, had the previous admissions arrangements been in place, Mrs B’s son would still not have been successful.

Findings

23. I find fault in the way the appeal panel considered Mrs B’s case.
24. Mrs B appealed on the basis the School did not properly consult parents on the final, published admissions arrangements. The Code says that a failure to consult effectively may be grounds for appeal. Therefore, it was relevant for the appeal panel to consider Mrs B’s argument for why the School did not properly consult.
25. In saying the School did not consult properly, Mrs B was saying the final arrangements did not meet the requirements of the Code. The panel therefore should have considered Mrs B’s points about consultation at Stage 1 of the appeal.
26. The panel’s outcome letter, at Stage 1, simply says the admissions arrangements were lawful, with no further explanation. The chair’s response to my enquiries says she could see that governors ratified the arrangements. Neither of these demonstrate the panel considered or addressed the points Mrs B raised about consultation. This is fault.
27. I cannot say whether, had the panel properly considered Mrs B’s arguments about consultation, it would have reached a different outcome. It is possible the School changed its arrangements based on the responses to its consultation. In which case I can see nothing in the Code that suggests the School must repeatedly consult on any changes it makes. However, it could also have published a different set of scores that were not based on any comments received. In which case it might be argued the School did not consult on the actual arrangements it published.
28. It was for the panel to consider the relevant information, any evidence provided by the School, and make a decision on this point.
29. If the panel found the School did not properly consult and therefore the arrangements did not comply with the Code, it is likely it would still have found there was a prejudice to the School in admitting another student. In which case, it would still have proceeded to Stage 2 and considered whether the prejudice to Mrs B outweighed that to the School.
30. Again, I cannot say whether the panel would have made a different decision at Stage 2. However, if it found fault in the consultation at Stage 1, that might have impacted how it viewed the level of prejudice to each party. Again, it was for the panel to consider this. Therefore, I recommend the School hold a further appeal hearing, consider Mrs B’s arguments about consultation and set out clear reasons for how it reaches any decision about this.
31. I note that in correspondence after the appeal, the clerk said Mrs B’s son would not have been offered a place anyway under the previous arrangements. The chair reiterated this in her response to my enquiries.
32. There is no mention of this in the outcome letter so no evidence the panel relied on this in making its decision. It is also not clear how the panel were able to reach this conclusion. I understand the School was heavily oversubscribed in the previous year but Mrs B’s elder son was still successful for a place under those arrangements. The arrangements included an examination, for which it is not possible to say how each child would perform in any given year.
33. If the panel relied on this, it would need to set out clearly how it calculated that Mrs B’s younger son would have been unsuccessful under the previous arrangements. I believe it is more likely that it is not possible to say what the outcome would have been under the old arrangements. Also, it is not really relevant as the School clearly had the intention to change its arrangements for 2021. If the panel found fault in how it consulted, it would be impossible to say what final arrangements the School would have published for 2021 but for that fault, and how it would have affected Mrs B’s application for her younger son. So, it would come back to weighing up the prejudice to either party at Stage 2.

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Agreed action

34. The School has agreed to, within a month of this decision:
• Apologise to Mrs B for the fault in the way the independent appeal panel considered her appeal.
• Arrange for a new appeal hearing, at which the panel should consider Mrs B’s arguments about the consultation at Stage 1. Provide a clear explanation of how it decided whether the consultation, and subsequently published admissions arrangements, met the requirements of the Code. Provide a clear explanation of how it considered the prejudice to either party following its findings at Stage 1.

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Final decision

35. I have found fault in how the independent appeals panel considered Mrs B’s appeal.

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Investigator's decision on behalf of the Ombudsman