1. Mrs B complained the appeal panel failed to follow proper procedures when it rejected her appeal against the School governors’ decision to refuse her son a place in year 7. As a result, the family is under a great amount of stress, and she has the uncertainty of not knowing whether the outcome would have differed had the panel considered it properly.
Ombudsman’s role and powers
2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. We cannot question whether a decision by a body is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. An admission appeal panel is a statutory tribunal but, it is also within our jurisdiction. (Local Government Act 1974, section 25). When considering a complaint after an appeal has been rejected, there may be parts which relate to what happened at the appeal and parts which relate to the original admission process (for example, something about the way a decision was taken by the admissions authority which the appeal panel did not consider). Governing bodies which act as admissions authorities are within jurisdiction, as are appeal panels considering appeals against decisions of governing bodies.
The law and guidance on admission appeals
The School Admissions Appeals Code (February 2012)
7. Under the Code, 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)
8. 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)
9. Appeal panels must follow the two-stage decision making process for this type of appeal. (paragraph 3.1)
10. First stage: the panel must consider whether the admission arrangements:
complied with the law; and
- were correctly and impartially applied in each case. (paragraph 3.2)
11. 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)
12. 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)
13. 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.
14. 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)
15. 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)
16. Panels must ensure appeals are decided by a simple majority of votes cast. (paragraph 2.23)
17. 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)
18. Appellants may complain about fault on the part of the appeal panel to us about a maintained school. Admission authorities must inform parents about the arrangements for making a complaint. (paragraph 5.4)
Guidance: changes to admission appeal regulations during Covid-19 outbreak (1 February 2021)
19. 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)
20. Face to face hearings cannot take place and should be conducted by telephone or video conference.
21. Decision letters should be sent within seven calendar days of the hearing, wherever possible.
St Andrew’s Roman Catholic School
22. The School is a voluntary aided Catholic secondary school. Its governing body is the admission authority. The number of children the admission authority agreed can be admitted to the School for year 7 in 2021, without it affecting the provision of effective education, is 210. This is its published admission number.
23. Its governing body is also responsible for deciding the order of priority for admission to the School. When it has more applications than available places, the School applies its oversubscription criteria. This sets out the order of priority of admission. The priority order ranges from the highest, category 1 (Catholic looked after children or previously looked after children) down to the lowest, category 15 (any other children).
24. With the agreement of the local authority, the School offered 240 children a place for September 2021. The School says this was because of a need by the local authority for this and it would also allow the greatest number of applicants possible a Catholic education. By the time of the appeal hearings, of the
240 places offered, 235 children had accepted places.
25. We produced this report after discussing the complaint with Mrs B, making written enquiries of the admission authority, and carefully considering all the evidence provided.
26. We sent Mrs B and the admissions authority a confidential draft of this report and took account of any comments received.
27. Mrs B applied for a year 7 place at the School for her son to start in
September 2021. The School received more applications than it had places. Its governors, as the admission authority, refused the application. This was because all 240 places were offered to children in higher categories than C under its oversubscription criteria.
28. Mrs B appealed the governors’ decision to an independent appeal panel. She did so because she wanted C to continue with his Catholic education as he attended a Catholic primary school. She also wanted him to remain with his friends, which she thought important after the national Covid-19 restrictions.
29. As the School was responsible for arranging an independent appeal panel to hear parents’ appeals against its decision not to admit their children, it used the appeal service provided by the local authority. The local authority service arranges school admission appeals, including providing panel members and the clerk for hearings. Despite using the appeal service, the School remains responsible for ensuring the appeals function is carried out effectively and according to statutory requirements.
30. The independent appeal panel heard 40 appeals against the School’s decision over six days. Of these, 16 succeeded but, Mrs B’s appeal was not one of them.
31. Mrs B is unhappy with the appeal hearing. She complained about a panel member stating she did not have the additional evidence Mrs B sent before the hearing. This was a letter of support from C’s primary school head teacher and information on the consultation between the local authority and the school about permanently expanding its published admission number to 240 from September 2022. She is also unhappy with the time taken for her to receive a letter from the panel explaining its decision after the hearing.
The appeal hearing
32. Due to Covid-19 restrictions, none of the appeals were done face to face. The School explained the appeal hearing procedure to appellants in advance. It told them the first stage of the hearing would be dealt with on paper only and the second stage by audio. For the first stage of the hearing, appellants were invited to send any questions they wanted to ask the School to the appeal service. The appeal service would gather any questions they and the appeal panel had and send them to the School for a response. It would then send the School’s response to the appellants and the panel.
33. In its written submission to the appeal panel, the School said while its published admission number was 210, it offered places to 240 children. It offered a higher number of places because the local authority needed it to do so and, it would also allow a greater number of children to have a Catholic education. As part of this agreement with the local authority, the School would not admit children from its waiting list until the number of children with places fell below 210.
34. The School confirmed the last child offered a place came within category 4 of its oversubscription criteria. This is for Catholic children who live in the catchment area. C came within category 12, which is for other children currently attending one of the named feeder schools.
35. The School noted each year, some children will not take up their offered place. At the time it sent its submissions, four children had refused places.
36. In response to one of the written questions received by the appeal service, the School confirmed the governors, the head teacher, the Diocese, and the local authority agreed to increase the published admission number from 210 to 240 from September 2022. At the time of the hearings, the School continued to follow the formal process to permanently change its published admission number.
37. The School also confirmed it admitted more children than its published admission number in September 2018 and September 2019. This meant senior staff taught extra lessons, and it used areas such as the stage and music practice rooms as teaching rooms for the sixth form. For the 2021 admissions, it had used all ‘possible resources and goodwill’ to offer 240 places.
38. The clerk’s six pages of notes of the hearing are typed and headed ‘Record of School Admission Appeal Decision’. The clerk’s notes set out in detail what the panel considered. It recorded 235 children accepting offered places. It also recorded the panel unanimously deciding to admit all the appellants’ children, ‘would be detrimental to the provision of efficient education and the efficient use of resources within the school’.
39. Apart from two introductory paragraphs at the start of the six-page decision letter to Mrs B, and three paragraphs at the end, the clerk’s notes and the letter are identical.
40. The School said under the School Admission Appeals Code, the panel must consider if prejudice has been shown, ‘over and above the fact the published admission number has already been reached’ when considering prejudice at stage 1. The School argued this did not mean the panel had to consider the actual number of places allocated or offered. It also argued the Code prevents a panel from reassessing the School’s capacity. The panel could not, therefore, consider the allocation of 240 places as the School’s published admission number. It argued many schools ‘over offer’ to help the local authority make sure every child is offered a place.
41. One of the panel questions to the School’s representative was about it admitting ‘considerably more’ children in previous years than the published admission number. A panel member asked whether this was done at the School’s request, the local authority’s request, or a combination of the two. The School’s representative responded by saying it was done, ‘in conjunction with the local authority, the Diocese, and local schools’.
42. The School provided us with a copy of a typed document headed ‘Grouped Stage 2’ created by the clerk. This records those who attended the appeal and brief notes of Mrs B’s questions to the School’s representative, questions asked by the panel of her, and her submissions at stage 2 of the hearing. The document does not record the panel’s decision or reasons for its decision.
43. The clerk told us she had not typed the ‘Record of School Admission Appeal Decision’ during the first or second stage of the hearing. She believes she may have made handwritten notes during each stage. She also believes these may have been destroyed once she used them to create the decision letter after the hearings.
44. The clerk could not recall if the panel members, during stage 1 of the hearing, considered whether prejudice would arise or not due to only 235 children out of 240 accepting places.
45. The clerk’s notes explain what the panel took into account when considering Mrs B’s appeal at stage 2. The notes record the panel, after considering her evidence, unanimously decided it was, ‘not sufficiently strong on this occasion to outweigh the prejudice that St Andrew’s School will suffer by the addition of another pupil’.
46. Nor could the clerk remember the panel members’ discussion at stage 2. She confirmed the decision letter to Mrs B included the information contained in her handwritten notes. The clerk also confirmed the decision letters were prepared and sent out two to three weeks after the hearings.
47. The local authority provided a copy of a spreadsheet which records the name of each child who appealed and the decision on each one at stage 2. It recorded the vote of each member and the final decision on each appeal as a Yes or a No. This was also prepared by the clerk who says she used it while discussing decisions with panel members. The School says it was not an official record of the hearing but more of a memory aid.
48. Four days after the hearing, the clerk wrote to Mrs B. The letter explained the panel refused her appeal and due to national Covid-19 restrictions, there would be a delay sending her the panel’s detailed decision letter. The detailed decision letter was sent almost a month after.
Was the admissions authority at fault? Failure to keep records
49. The Code required the clerk to take an accurate record of the points raised at the
hearing, including the proceedings, voting, and reasons for the decision. We are not satisfied the clerk took an accurate record of what happened during the hearing when the panel reached its decision. This is because clerks’ notes we usually see, which are made as the hearing progresses, not weeks later, read like a commentary and record remarks made by individual panel members, for example, when reaching their decision. They also record how each member voted.
50. The notes of this appeal did not do this but instead, set out in detail what the panel considered. This level of detail, and the style of writing, is usually only seen in decision letters, not notes made during a hearing.
51. Although the School provided a copy of a spreadsheet recording the name of each child appealing, and how each panel member voted, this did not record the reasons for the decision. Nor is there any evidence this spreadsheet was made during the hearings.
52. On balance, we cannot say the admissions authority fulfilled the duty under the Code to make an accurate record of the hearing. We are unable to conclude the typed record of the hearing is an accurate reflection of the panel’s decision and reasoning.
The hearing: first stage
53. Under the first stage of the hearing, the Code required the panel to consider whether the admission arrangements complied with the law and whether they were correctly and impartially applied to C. It then required the panel to go on and decide whether the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.
54. There is nothing to show the panel correctly considered this appeal under
stage 1. Neither the clerk’s notes nor the decision letter shows the panel properly considered whether the admission of additional children would cause prejudice.
55. In its response to a draft of this report, the School said there was no agreement with the local authority at the time of the hearings as to what the new published admission number was as this was being consulted on.
56. The School had said it could admit 240 by using all, ‘possible resources and goodwill’. This implies it took steps to ensure it could meet the strain an extra
30 children would place on its ability to provide efficient education or the efficient use of resources. The panel did not ask the School how it would manage with 240 children.
57. What the panel needed to do to comply with the Code, was consider whether admitting up to five more children could be done without causing prejudice. It needed to do this because not all the offered 240 places were accepted at the time of the hearing.
58. Instead, the clerk’s typed notes of the hearing, and the decision letter, show the panel considered whether the School could admit another tutor group to year 7 in September 2021 of 40 children. The head teacher’s response to this suggestion noted the impact admitting significantly above the published admission number in year 7 would have on the School. He said it would reduce the number of groups in sixth form and increase the average class size, for example. The panel failed to question, and consider, whether his response was undermined by the School initially offering 30 places over its published admission number.
59. The notes and decision letter also said the panel looked, ‘at whether tutor groups could be increased to 30 students’ and whether it could admit another, ‘tutor group into year 7 in September 2021, that is admitting an additional 40 students’. This was not what the Code required the panel to do. It required the panel to decide whether the admission of additional children would cause prejudice. The panel only considered whether the admission of all 40 children who had appealed would cause prejudice. It failed to ask whether a lesser number could be admitted before causing prejudice. This is fault.
60. Although the School told us the panel could not take account of the number of places offered, as it needed to only consider the published admission number, this is not what the notes and decision letter says happened. These state the panel considered to, ‘admit significantly above the offered number this September, will make it impossible to timetable all lessons which will have a significant negative impact on the education of other students across the school’.
61. This statement shows the panel considered admitting children above the offered number of 240 would impact negatively on the education of other children at the School. The evidence fails to show the panel considered whether admitting children up to the offered number would impact negatively or not.
62. The panel is not expected to reassess the published admission number. What it failed to do was properly consider whether it could admit up to the offered number before prejudice to efficient provision of education arose. In its response to a copy of a draft of this report, the School confirmed it did not agree and believes its interpretation of the Code is correct. The School’s comments on this point do not alter our findings.
The hearing: second stage
63. The Code required the panel to balance the prejudice to the School against Mrs B’s reasons for wanting C’s admission to it.
64. While there is the typed record of the stage 2 hearing, this did not contain the panel’s decision or reasons for its decision.
65. What the almost identical clerk’s notes and the decision letter say happened when the panel reached its decision, is not supported by other evidence. This means there is nothing to show what they say happened when the panel reached its decision is accurate. This means we cannot say the panel properly balanced the prejudice to the School against Mrs B’s reasons for wanting C’s admission to it.
66. We are satisfied the panel member Mrs B complained about had all the available evidence before her during the hearing. We have based this on the clerk’s recollection of what happened.
67. There is no evidence to justify a finding of fault on Mrs B’s complaint about the delay sending her the full final decision letter by about three weeks after the hearing. In reaching this conclusion, we took account of the school needing to complete all 40 appeals, the staffing problems it faced, and workload pressures generally at what was a busy time of year for the School. This is because while the letter was not sent within the seven calendar day deadline set by the temporary regulations, these state the deadline should be met, ‘wherever possible’.
68. We are satisfied the decision letter sent to Mrs B failed to signpost her to us if she had concerns about the appeal not complying with the Code. The letter told her she had no further right of appeal against the panel’s decision but, directed her to look at the local authority’s website, or the school admission appeals guidance notes, should she wish to complain.
69. We do not believe the School did enough to satisfy the Code’s intention. The decision letters should provide information about complaining directly to us rather than requiring appellants to take additional steps to discover who they can complain to about the handling of their appeal. This failure is fault.
Did the fault cause injustice?
70. The failure to keep a proper record of the proceedings caused Mrs B an injustice. She has the distress of not knowing whether her appeal was properly considered. Nor does she know whether the clerk’s typed notes and decision letter accurately reflect what the panel members took into account and decided.
71. The failure to properly consider prejudice at stage 1 also caused her an injustice. Mrs B has the uncertainty of not knowing whether it would have made any difference to her appeal had the panel properly considered it.
72. We do not know what the outcome of her appeal might have been had the faults not happened. Although we cannot say her appeal would have succeeded, the faults identified caused her avoidable uncertainty and frustration. In addition, she was also put to the time and trouble of having to complain to us.
73. We note the governing body has offered Mrs B a new hearing with a fresh panel.
74. To remedy the personal injustice caused to C, we recommend that within three months of the date of this report, the governing body sends Mrs B a written apology for the failure to make and keep an accurate record of the hearing and for the panel’s failure to properly consider her appeal.
75. To ensure the faults identified with the appeal hearing do not continue, and affect future appellants, the School’s governing body will review its arrangements for conducting appeals and its contractual arrangements with the local authority appeals service to satisfy itself:
appeal panel members are appropriately trained and able to conduct appeals in line with the Code; and
appeal panel clerks are appropriately trained to fulfil their role in line with the Code, which includes the importance of keeping accurate records of hearings and clear decision reasons.
76. The governing body must consider the report and confirm within three months the action it has taken or proposes to take. We will require evidence of this. (Local Government Act 1974, section 31 (2), as amended)
77. We have completed our investigation into this complaint. There was fault by the governing body which caused injustice to C. The governing body should take the action identified in paragraphs 74 to 76 to remedy that injustice.