Summary: The Ombudsman found fault by the school on Mrs Y’s complaint about the appeal panel failing to properly consider her appeal against the school’s refusal to give her son a Year 7 place. The clerk’s notes of the hearing do not explain how the panel reached its decision. What the decision letter said about how the panel reached is decision is not supported by the clerk’s notes. The agreed action remedies the injustice caused.

The complaint

1. Mrs Y complains the appeal panel failed to properly consider her submissions on her appeal against the school governors’ decision to refuse her son a place in Year 7 from September 2021 at her preferred school; as a result, she was not told why his appeal failed and this has caused them a great deal of stress and anxiety.

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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. 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)

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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, wherever possible.

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How I considered this complaint

17. I considered all the information Mrs Y sent, the notes I made of our telephone conversation, and the school’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Mrs Y and the school. I considered the school’s response and the notes I made of the telephone conversation I had with the head teacher.

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What I found

18. Mrs Y applied for a Year 7 place for her son at her preferred school, starting in September 2021. The school is its own admission authority, and its governors refused her application. Mrs Y appealed the decision to an appeal panel. The appeal panel refused her appeal. Mrs Y believes the panel failed to properly consider her submissions, especially her son’s medical reasons and evidence, for going to the preferred school.
19. Her evidence to the panel explained her son struggles to walk near roads, or cross them, alone. This was because of a car accident, and he receives professional help to deal with it. This will cause her son a problem as while the preferred school is about 0.7 mile from home, the allocated school is 2 miles away. She currently takes him there by car which is causing logistical difficulties as not only does she work, but she must take her other children to 2 separate places as well. Had he received a place at the preferred school, his grandmother, who lives close to it, could ensure he crossed the road safely. His worry about getting to the allocated school is affecting his mental health and causing him anxiety.
20. The appeal panel heard her appeal on 12 May 2021 and the clerk sent her the panel’s decision in a letter on 21 May. In response to my enquiries about Mrs Y’s claim she never received the letter, the school provided a copy of an email she sent on 18 May. In it she says she had been trying to contact the school for the previous 2 days and she had a recent appeal, ‘declined’. Mrs Y wanted to meet to discuss moving forward after the appeal.
21. The clerk’s notes of stage 2 of the hearing records one of the members saying Mrs Y’s son would not be happy with the allocated school, which is her second preference school. The Chair and other member are recorded as repeating a couple of Mrs Y’s points. The notes record the decision as, ‘Not Allowed’.
22. The appeal panel members were contacted by the school in response to my enquiries. The Chair told the school: the appeal paperwork is destroyed almost immediately after the hearing for data protection reasons; requesting they recall an appeal in May with any accuracy is an impossibility because of the number of appeals carried out; members rely on the clerk both to record all points raised and discussed on each case and to inform parents of the reasons why their appeal failed.

Analysis

23. I make the following findings on this complaint:
1. Although the clerk’s notes of the stage 2 hearing set out the panel’s decision, it fails to set out the reasons for the decision. It records a point or two each member made at this stage. One of them, about Mrs Y’s son being unhappy with the allocated school, is irrelevant as the appeal was about the preferred school, not the allocated school.

The notes do not explain how the members carried out the balancing of Mrs Y’s reasons for wanting her son to go to this school, such as the logistical problems she faced and his problems walking and crossing the road, for example, against the prejudice admission would cause. This failure is fault.

2. While the decision letter explained the panel had gone on to balance the prejudice that would be caused by admitting a further child against Mrs Y’s submissions, this was not supported by the clerk’s record of the hearing. There is no evidential record, therefore, to support what the letter claimed had happened at stage 2. This is fault
3. I am satisfied both these failures caused Mrs Y an injustice. This is because she has the distress of not knowing whether the panel properly considered her submissions and assessed them using the correct procedure.
4. The clerk’s notes of the hearing do not show the voting of the panel members when reaching their stage 2 decision as required by the Code. This is fault.
5. On balance, I am not satisfied the failure to send the full decision letter to Mrs Y within 7 calendar days of the hearing justifies a finding of fault in these circumstances. This is because she was clearly aware of the panel’s decision within 7 days of the hearing as I have seen a copy of the email she sent the school about how the panel declined her appeal. I have also taken account of the school processing 44 appeals which clearly has an impact on staff resources and workloads at what is a busy time of the school year. In addition, the head teacher explained the panel could do no work on the Saturday following the hearing for religious reasons.

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Agreed action

24. I considered our guidance on remedies.
25. The school agreed to take the following action within 4 weeks of the final decision on this complaint:
1. Send Mrs Y a written apology for the failure to: properly record the decision of the panel at the end of the stage 2 process; make a record of the panel’s voting on the appeal.
2. Arrange for the rehearing of Mrs Y’s appeal with a new appeal panel.
3. Act to make the clerk aware of these failures so training needs can be considered to prevent repetition of these failures on future cases.

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Final decision

26. The Ombudsman found fault by the school on Mrs Y’s complaint. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman