Summary: Mrs K complains about the way an appeal panel arrived at its decision about her daughter’s application for a place at the Grammar School. We uphold the complaint because of some inconsistencies with the records of the decision. The School has agreed to our recommendation for a fresh appeal.

The complaint

1. The complainant, whom I shall refer to as Mrs K, complains about an unsuccessful grammar school admission appeal for their daughter (whom I shall refer to as L). She says the appeal panel did not consider the appeal fairly. She also questions the impartiality of the panel. She would like a new appeal hearing.

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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 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)

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How I considered this complaint

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs K;
• made enquiries of the School and the Council and considered their responses;
• spoken to Mrs K;
• sent my draft decision to the School and Mrs K and considered the responses I received.

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What I found

Legal and administrative background

School admission and appeals - general

5. Statutory guidance about school admissions and appeals is in The School Admissions Code and School Admission Appeals Code, published by the Department for Education.
6. Parents and carers have the right to appeal an admission authority’s decision not to offer their child a school place. An independent appeal panel decides the appeal.
7. A clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
8. Appeal panels must either uphold or dismiss an appeal and must not uphold an appeal subject to any conditions. Appeals must be decided by a simple majority of votes cast. A panel’s decision is binding on the admission authority.
9. In 2020, the government introduced emergency regulations because of the COVID-19 pandemic. These temporarily amended the existing regulations. (School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020) The emergency regulations allowed that appeals could be conducted entirely based on written submissions. The accompanying guidance said:
• “… for the panel to make a decision which is fair and transparent, they must ensure that the parties are able to fully present their case by way of written submissions”.
• “The panel and clerk should meet … to consider the submissions and formulate questions for the appellant and presenting officer. The aim should be to clarify points made and solicit further relevant information. They should bear in mind that appellants, in particular, may be less familiar with the kind of information and arguments that are required, and may have less experience preparing written submissions.”
• “The clerk should send the questions and all the papers to each of the parties, for example, the presenting officer’s submission will be sent to the appellant along with both sets of questions, and vice versa.”

(Statutory Guidance: Changes to the admission appeals regulations during the coronavirus (COVID-19) pandemic)

School admission and appeals - grammar schools

10. In Kent 25% of children attend a grammar school. Children who wish to be considered for entrance to grammar school sit the ‘Kent Test’ at the beginning of their last year of primary school. Children receive three standardised scores – one for English, one for maths and one for reasoning. In the relevant year, to pass the test, children needed a total score of 332 or more, with a score of at least 108 in each of the three papers.
11. For children who do not pass the Kent Test, the admission and appeal process has a head teacher’s assessment (HTA) panel stage. This allows a headteacher of a child’s primary school to ask a panel to consider a child’s application, if the headteacher believes their test score did not reflect their ability.
12. Maidstone Grammar School for Girls (which I shall refer to as the School) is its own admissions authority. So the School is responsible for admission appeal arrangements. It has a duty to comply with the statutory guidance issued by the Department for Education. Like other grammar schools in the County, the School asks Kent County Council (which I shall refer to as the Council) to manage the independent appeal process on its behalf.
13. The School Admission Appeals Code says panels may be asked to consider a grammar school appeal where the appellant believes the child did not perform at their best on the day of the test. In those cases, a panel must only uphold the appeal if:

• “…there is evidence to demonstrate that the child is of the required academic standards, for example, school reports giving Year 5/Year 6 SAT results or a letter of support from their current or previous school clearly indicating why the child is considered to be of grammar school ability”; and
• the appellant’s arguments outweigh the admission authority’s case that admitting further children would cause prejudice.

14. For grammar school appeals, the Council’s says appeal panel members must consider all the evidence. And each member must give a score between 1 and 4 for the application. The Council says its scoring system works as follows:

• it does not rank children who do not have evidence of grammar school ability;
• 1 is for children with a borderline case;
• 2 for those with a strong case;
• 3 for those with a very strong case; and
• 4 for those with exceptional grounds.

15. The Council does not guide panel members on what warrants each of the scores. It says that is because panel members need to make an independent decision based on the evidence before them.

Standards and Testing Agency (SAT) scores

16. In their last year in primary school, pupils take national curriculum tests in maths, reading, and spelling, punctuation and grammar (SPAG).
17. The SAT scores are ‘scaled’ to ensure consistency. Pupils scoring 100 are performing at the expected level. The range of scores changes year by year, but is between around 80 minimum and 120 maximum. The government publishes conversion tables to allow schools to understand the relationship between the raw and scaled test scores.

What happened

18. L sat the Kent Test in September 2020. She scored 104 in maths, 104 in English and 118 in reasoning, making a total of 326. So she did not meet the required level for a grammar school place (see paragraph 10).
19. L’s primary school’s headteacher supported an application to a HTA panel. The form he completed noted L’s Year 5’s teaching had been disrupted. It also contained the following information:

20. The HTA’s decision was to confirm L’s test score. In March the School offered places. L was not successful.
21. In late April L’s parents appealed. After some confusion about the name the clerk had used in the record of a first appeal hearing, the Council (with the School’s approval) agreed to offer L a fresh appeal. The Council said, to put L back in a position she would have been in if there had not been any fault:
• neither the clerk or panel would have details about the error; or
• the number of successful appeals.
22. Mrs K complains the Council compromised the impartiality of the new appeal panel. This was because it advised a panel member, in response to a query, that the appeal was a re-hearing. And that this was needed due to a clerking error.
23. The new panel sat in May. L’s primary school’s headteacher wrote a letter supporting the appeal. The letter advised:
• L’s current test scores showed she was working above or significantly above the national average;
• L had had to cope with “staffing inconsistencies” which meant “[m]uch learning has been disrupted both last and this academic year”.
• The primary school allowed L to sit past SAT papers to provide scaled scores. The letter listed the most recent test results:

• “…the school completed their own comparative judgement of writing. [L] was in the top 20% for writing against peers in the school.”
• L’s class teacher said L’s “…academic achievement in tests carried out by the school show her to be capable of achieving Greater Depth standards and I believe that these scores, and the work that she produces in class, are an accurate reflection of her abilities.”

24. The clerk’s notes for the new appeal have the panel member’s reasoning.
25. Mrs K’s case:

• The primary school had been supportive. But she outlined disrupted teaching for L during her year 5. They had noticed her progression stall in year 5.

26. Panel member 1 (Scored 0):

• “The information provided by the [primary school headteacher] … for the Assessment panel is not particularly clear.” It showed that between March and September 2020 SPAG and maths marks dropped, but reading increased.
• The information provided by the primary school: of the SATS papers taken in February 2021, supported grammar school ability in reading. “Maths at 113 is certainly an improvement on the Kent test score but I would question that this is an indication of Greater Depth standards to a level that a grammar ability student would be working at.”
• “In my view the mock SATS provided are not hard evidence that [L] is of grammar school ability.”
• “[L] is a borderline student for a grammar school place but, on balance, I am not confident that the evidence provided is sufficiently strong enough to support the view that overall [L] is of grammar school ability”.

27. Panel member 2 (Scored 0):

• “The evidence does not show that, overall [L] is quite there yet, although there is evidence to suggest that she is improving across the board and is at a good level for Reading.”
• “…I would have to come down on the side of [L] probably being a borderline grammar ability student but, on balance, I do not think the evidence presented is sufficiently strong enough for me to be confident that she is ready for a grammar school placement at [the School].”

28. Panel member 3 (Scored 0):

• “The primary school referred to [L] as being in the top 20% for Writing against her peers in the school but it does not indicate where she is in that 20%. Also the top 20% at the primary school only relates to that school and there is nothing to compare it with across the whole cohort.”
• “The class teacher does refer to [L] as being capable of achieving Greater Depth standards… I can see that there is evidence in the February test outcome to think that [L] is of grammar ability in Reading. I am not persuaded by the evidence seen that she is quite there in Maths.”
• The school was silent on a later SPAG score, but the SAT score of 98 from September 2020 was below average.
• Noted it was a difficult decision, but, on balance, was not persuaded L was of grammar ability.

29. The decision reasons in the clerk’s notes say:
• “The Panel … noted the parents’ reference to the very low quality teaching in Year 5 and the information provided in support of your appeal from …[the]… Primary School.”
• “The Panel understood that the score of 113 in the Reading SATs paper taken in February 2021 indicated that [L] was above the national average expected level but she was not necessarily at a level that would normally be associated with a grammar school ability student.”
• “…the school did not provide any recent information about the predicted end of KS2 assessment for the Spelling, Punctuation and Grammar (SPAG). However, in the Standardised scores from the Year 6 information provided by the school for the … HTA … SPAG is referred to as being scored at 95. The Panel was aware this was not an indication of a grammar school ability student. However, in the same information to the HTA under latest reading age/standardised score the school refers to SPAG as being 117 so the information about where [L] was in relation to SPAG was not clear.”
• “The primary school referred to [L] as being in the top 20% for Writing against her peers in the school but there is no indication of what sort of comparative level that is.”
30. Mrs K complained to the Ombudsman. She contended the primary school headteacher had got the dates March and September the wrong way around in his HTA panel submission (see paragraph 19). She had not been able to clarify this with the headteacher, as he had left the school.
31. The School provided its appeal bundle in response to our enquiries. In her covering letter, its headteacher said:

“Maidstone Grammar School for Girls uses Kent County Council for our independent appeals. This has been a longstanding arrangement. However this year we have raised concerns with KCC Appeals Team regarding the outcome of our appeals, given the number of concerns we have been made aware of. In respect of [L’s] two appeals we were surprised by both outcomes.”

32. In response to my enquiries, the Council advised:

• The clerk advised the reference to a SPAG score of 95, in the clerk’s notes decision reasons “…was a typing error on my part, please accept my apologies for that. However, the Panel had referred to the score of 98 in their comments which confirm they had not based their decision on a score of 95. The score of 98 was below the 100 average.”
• “The Appeal Panel cannot be held to blame if the information presented to the HTA Panel was not presented very clearly. What was clear was the HTA viewed that the work presented supported the test results. The Appeal Panel could only make its decision on the evidence it saw and the Members did not believe that the evidence presented was strong enough to support the view that [L] was of grammar ability yet.”

Was there fault by the Council acting for the School?

33. The appeals for the year in question were on paper, rather than in person. This takes away the chance for parents to clarify (at the hearing) issues with evidence. The COVID-19 statutory guidance (see paragraph 9) recognises that problem. So it instructs clerks and panels to be aware appellants may need support – it cites asking questions – to fully present their case. And (even more than usual), for transparency, the Ombudsman would expect to see a clear ‘audit trail’ of the reasoning behind a panel’s decision. I have some concerns the records do not satisfactorily show the panel met either of those requirements.
34. The panel noted the disruption to L’s Year 5 teaching, but said it could only consider whether there was evidence that L was of “the required academic ability” for grammar school. I agree with the panel on it needing evidence of ability. But the information about L’s disrupted Year 5 was relevant information for interpreting the information. And for interrogating what, all acknowledge, was unclear information from the primary school’s headteacher. Given the disruption, I would have expected to see some discussion of whether there was any evidence of development in L's scores. And some consideration of what the most recent evidence showed.
35. The panel could have asked Mrs K some questions before the hearing to seek some clarification about the evidence before it and its inconsistencies. Neither the School or the Council has sent me any evidence that the clerk or panel considered this.
36. To establish whether this fault led to any uncertainty about the outcome of the appeal, I have considered what the most recent evidence of L’s ability was from the information before the panel (although I recognise the SPAG score is based on Mrs K’s interpretation of the headteacher’s information – see paragraph 30):

37. These scores show the possibility that L was, in her most recent scores, performing at a level that was above the minimum set out in the Kent Test. While it is not for the Ombudsman to decide if that was enough to allow the appeal, I would have expected to see fuller consideration of this issue.
38. The February 2021 scores, in particular the panel’s consideration of the maths score, needed more explanation. This is because the recorded score was 113. The maximum score for SATs is around 120. It is not for the Ombudsman to question the professional judgement of appeal panel members. But I would have expected to have seen a fuller explanation of why this seemingly high score was not evidence of grammar school ability. I find fault with the lack of detail in the panel’s consideration of the evidence before it.
39. Two of the panel members use the word ‘borderline’ to describe the merits of L’s case. I note the Council says (see paragraph 15) it is for panel members to decide on a score. More generally, it is for the members to use their judgment when deciding if a child is of grammar school ability. But ‘borderline’ is used to describe a score of 1 in the Council’s scoring system. So I would have expected that, when a panel member has used the same word, they would have applied the relevant score. I find fault.
40. I also find fault with the clerk’s notes:
• recording a SPAG score of 95; and
• recording the February 2021 SAT score for reading as 113, when it was in fact 120 (maths was 113).
41. I accept that in the panel member’s deliberations the correct scores were used. So these were likely typographical errors. But they do lead to a further lack of confidence in the accuracy of the record.

The information given to the new panel

42. We have issued guidance to admissions authorities, to seek a consistent approach when they arrange fresh appeals after a panel’s fault. That guidance says we would expect a fresh panel:

• to base any consideration of prejudice on the numbers that applied when the original appeal was heard; but
• the admission authority should inform the panel there had been fault in the first appeal.

The reason we recommend the second bullet point is to provide some reasoning for panels about why they were being asked to not use up-to-date information.

43. The Council only gave the new panel basic information that there had been an error. That follows our guidance. I accept the Council at first told Mrs K something different and I will send it a copy of our guidance with this draft decision. But I am not persuaded the fault had an impact on the new panel’s consideration of the appeal.

Did the fault cause an injustice?

44. I accept the panel had a difficult decision, due to the unclear evidence. But there are enough problems with the decision record to cause some uncertainty about the panel’s decision.

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Recommended action

45. Because of the uncertainty, I recommended the School offer a fresh appeal with a new panel and clerk. The School has agreed to our recommendations.
46. The School should give the fresh appeal the same information about the availability of places as the first hearing considered. If the appeal gets onto balancing L’s case with the prejudice to the School (this did not happen in either of the earlier appeals), the panel should base any consideration of prejudice on the numbers that applied when the original appeal was heard.
47. This approach accords with our established position on remedying injustice, by seeking to restore the original position the appellant found themselves in, prior to the prejudicial fault in respect of the initial appeal.
48. I also recommended the School apologises to Mrs K and L for the faults I have identified.

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Final decision

49. I uphold this complaint. The School has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman