The Ombudsman's final decision:
Summary: The Ombudsman found fault on Miss F’s complaint about the appeal panel failing to properly consider her appeal against the school’s decision to refuse her children a place. The statement of case lacked important information and some of the information it contained was irrelevant. The clerk’s notes failed to properly record the decision-making process. The decision letter failed to contain correct information. The agreed action remedies the injustice caused.
- Miss F complains about the appeal panel failing to properly consider her appeal against the school’s decision to refuse her children a place at the preferred school; as a result, the family is under great pressure and stress as the children are upset they are not going to this school
The Ombudsman’s role and powers
- 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)
- 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)
School Admission Appeals Code (February 2012)
- 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)
- 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)
- Appeal panels must follow the 2-stage decision making process for this type of appeal. (paragraph 3.1)
- 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)
- 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)
- A panel must uphold the appeal at first stage where it finds: the admission arrangements did not comply with admission law, or were not correctly and impartially applied, and the child would have been offered a place or; the admission of additional children would not prejudice the provision of efficient education or efficient use of resources. (paragraph 3.5)
- 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.
- 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)
- 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)
- Panels must ensure appeals are decided by a simple majority of votes cast. (paragraph 2.23)
- 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)
- The appeal panel must take account of the school’s published admission number and the admission authority must demonstrate prejudice over and above the fact that this number has already been reached. While not reassessing the capacity of the school, it must consider the impact on the school of admitting additional children. When reaching a decision about whether there would be prejudice, the panel must consider the following:
- What effect an additional admission would have on the school in the current and following academic years as the year group moves through the school;
- Whether any changes have been made to the school’s physical accommodation or organisation since the admission number was originally set for the relevant year group;
- The impact of the locally agreed Fair Access Protocol; and
- The impact on the organisation and size of classes, the availability of teaching staff, and the effect on children already at the school. (paragraph 3.10)
Guidance: changes to admission appeal regulations during Covid outbreak (1 February 2021)
- 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)
- Face to face hearings cannot take place and should be conducted by telephone or video conference.
- Decision letters should be sent within 7 calendar days of the hearing, wherever possible.
How I considered this complaint
- I considered all the information received from Miss F, including the school’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Miss F and the school. I considered the responses received from the school and the local authority who provided the appeals service.
What I found
- Miss F applied for her children to go to the preferred school in year 7 from September 2021. The school governors, as admission authority, refused them a place because the school received more applications than it had places. Miss F unsuccessfully appealed the decision on both applications to an independent appeal panel.
- Miss F is unhappy with the way the panel considered her appeals. She says what was written in the decision letter to her, for example, was incorrect as it claimed she said something she had not.
- In response to my enquiries, the school confirmed the only information it provided before the hearing to the panel and Miss F was in its statement of case which said:
- Her children were placed in admission criterion 9 when she applied for school places;
- The published admission number for year 7 was 210 and it received 527 applications. At the time of the appeal, the number of children admitted to year 7 was 214;
- It was waiting confirmation from the local authority about the numbers on the waiting list for year 7 but, the school believed it was 42; and
- Upholding an appeal would prejudice the efficient provision of education and the effective use of resources for students on the roll. It would also be unfair to any child higher up the waiting list.
- Under the school’s admission policy, criterion 9 is for ‘Other children’. The last child to receive a place came within criterion 7. Criteria 1-5 are all for Roman Catholic baptised children, criterion 6 is for looked after children, and criterion 7 is for other children from four named Roman Catholic primary schools. Miss F’s children did not attend any of these schools. The policy states evidence of faith in the form of a Roman Catholic baptism certificate is needed to be considered Roman Catholic.
- Miss F’s submissions to the panel said her children always dreamed of going to this school, and it is a faith they have followed since nursery. She wanted them to keep following this faith and noted they live closer to the preferred school than the one allocated. Neither child has friends at the allocated school.
- Following the hearing, the school sent Miss F a letter setting out the panel’s decision. This explained how the panel considered the appeals. It considered the prejudice that would be caused by admitting further children and noted the 214 children on the roll. The panel heard there were ‘currently additional constraints at the school’ and considered admitting more children would impact on pupil teacher time. Admitting further children would also impact on the health and safety of pupils and staff.
The letter said Miss F wanted a place for her children for educational reasons but, she says her reason for wanting them at the school was to do with their mental health and social wellbeing. She is unhappy the letter failed to mention this reason. When challenged, the clerk later apologised for this error.
- I make the following findings on this complaint:
- The school’s statement of case sent to Miss F and the panel failed to give details about the impact admitting further children would have on the school. It gave no details, for example, of class sizes, the number of teaching staff, the impact on health and safety, the use and pressures on space at the school, or on specialist resources. The failure to explain what impact a further admission would have on the school is a breach of the Code and amounts to fault.
- The statement also contained irrelevant information. It said admitting further children would ‘be unfair to any child higher up the waiting list’. It told the panel the estimated number on the waiting list was 42. Both are irrelevant information. This is because I consider it alerted the panel that it had not received appeals from all those on the waiting list. Including this information is a breach of the Code and amounts to fault.
- I am not satisfied the clerk’s notes show how the panel considered and decided the stage 1 and stage 2 part of the hearing for these appeals. I invited the school to clarify whether the panel held a group stage 1 hearing or held individual ones on each appeal. The school failed to answer this point.
- The clerk’s notes state the panel felt prejudice would arise if further pupils were allowed in to year 7. It failed to record whether the panel addressed the questions at stage 1, namely whether the admission arrangements complied with the law and whether they were correctly applied in this case. This is a breach of the Code and amounts to fault.
- The clerk’s notes conclude by stating the panel was sympathetic to Miss F and felt she is doing the best for her children but felt on balance, her case was ‘not enough to be allowed’ and therefore refused her appeal. This is not the test required by the Code under stage 2. This is a breach of the Code and amounts to fault.
- No record of the members’ voting was kept. This is also a breach of the Code and amounts to fault.
- As accepted by the clerk, the decision letter wrongly claimed Miss F mentioned wanting the twins to go to this school because it provides an excellent education. In addition, it failed to refer to what she had said which was about her children’s mental health and wellbeing. This was a breach of the Code as it failed to contain a summary of relevant factors raised by Miss F and considered by the panel. This amounts to fault.
- The decision letter referred to additional constraints admission would have, the impact on pupil teacher time, and the impact of health and safety. This information was not set out in the statement of case sent to Miss F before the hearing and nor was it in the clerk’s record of the hearing. This is a breach of the Code as it suggests the introduction of evidence not contained in its statement. All relevant documents needed sending by the school to the clerk before the hearing to allow a fair and transparent hearing. This includes an explanation about how admission of another child would cause prejudice. This is a breach of the Code amounting to fault.
- I am satisfied the fault identified caused Miss F an injustice. This is because it caused her distress in the form of uncertainty as she does not know whether the outcome of the appeal would have differed had it been properly heard.
- I considered our guidance on remedies.
- The school agreed to take the following action within 4 weeks of the final decision on this complaint:
- Send Miss T a written apology for failing to: include relevant information in its statement of case; provide her with all information before the hearing; properly record the panel’s decision-making process followed during the hearing; record the panel’s vote; include correct information in the decision letter.
- Arrange for a rehearing of Miss F’s appeals with a new appeal panel.
- Act to ensure future statement of cases include all necessary and relevant information.
- It considers and discusses the training needs of the clerk to the panel to ensure future appeals follow the Code.
- I found fault on Miss F’s complaint against the school. The agreed action remedies the injustice caused.
Investigator's decision on behalf of the Ombudsman