Summary: Miss H complains in relation to an unsuccessful school admissions appeal. She says the appeal process did not follow the School Admissions Appeal Code and that ultimately, this prejudiced the decision by the appeals panel to not admit her son. We have not found any evidence of fault in the way the appeal was heard and how the decision to refuse admission was reached. We therefore have no jurisdiction to question the merits of the admission authority’s decision to refuse admission. However, we did identify minor fault by the admission authority’s clerk with respect to how it communicated the panel’s decision to Miss H. That said, the fault had no bearing on the appeals process or decision reached and so we do not consider Miss H or Child X suffered an injustice by reason of it.

The complaint

1. The complainant, who I refer to as Miss H, is making a complaint in relation to an unsuccessful school admissions appeal for her son (Child X) to attend the Year 7 group at All Hallows RC High School (All Hallows).
2. All Hallows has Voluntary Aided status, which means the governors are ultimately responsible for admissions and the school is, therefore, its own admissions authority. Nevertheless, All Hallows ask the local authority, Salford City Council (the Council), to administer the admissions process and appeals on its behalf. Specifically, Miss H alleges the following:
1. Documents she provided in advance of the appeal were not considered by the school’s admissions appeal panel.
2. Child X’s Year 7 application to All Hallows was treated as an ‘in-year application’, as opposed to ‘late application’ as it should have been.
3. The appeal hearing was changed from a video hearing to a telephone hearing without proper notice.
4. The minutes of the panel appeal hearing contained material inaccuracies.
3. As a result, Miss H says the appeal panel did not give full consideration to the appeal. Further, she says the decision to not admit Child X has been prejudicial to his wellbeing and educational welfare. As a desired outcome, Miss H wants the appeal panel to hear the appeal again while adhering to procedure.

Back to top

What I have investigated

4. I have investigated all of the above complaint outcomes. In addition, I have investigated whether the Panel considered Miss H’s appeal in accordance with the School Admissions Appeal Code.

Back to top

The Ombudsman’s role and powers

5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. 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).
7. 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).
8. We cannot question whether a council’s decision 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).

Back to top

How I considered this complaint

9. I have reviewed Miss H’s complaint to the Ombudsman and her appeal to the school admissions appeal panel. I have also had regard to the responses of the Council, notes of the appeal clerk and schools allocations policy. I invited both Miss H and the Council to comment on a draft of my decision. No comments were received by either party.

Back to top

What I found

Background and legislative framework

10. In accordance with Section 13 of the Education Act 1996, all local authorities must ensure that primary and secondary education is available to meet the needs of the population in their area.
11. The school admissions appeal panel (the Panel) sits as an independent admission panels for the benefit of children, parents, schools, and academies. It performs a judicial function and must be independent, impartial and transparent in their decision-making at all times. Panel members must not have a vested interest in the outcome of any stages of the appeal or be involved in an earlier stage of the proceedings, for example the decision to refuse admission.
12. The Published Admission Number (PAN) is the maximum number of pupils that the admission authority will admit to each year group.
13. School admission appeals by the Panel are governed by the School Admissions Appeal Code (the Code). The Code is statutory guidance and must be followed. When considering an appeal which is not subject to infant class size legislation, the Panel must consider the following:

First stage: examining the decision to refuse admission

14. In the first stage of the decision-making process, the Panel must have consideration as to whether:

• admission arrangements comply with the School Admissions Code and all other admissions law
• admission arrangements were correctly and impartially applied
• admission of additional children would prejudice the provision of efficient education or the efficient use of resources

Second stage: balancing the arguments

15. At this stage, the Panel must balance the arguments put forward by both the admission authority and the appellant. It must take into account the appellant’s reasons for wanting their child to attend the school in question, including what it can offer that other schools cannot.
16. If the Panel considers that the appellant’s case outweighs the prejudice to the school, it must uphold the appeal. When making decisions, the panel should:

• consider each point raised by the parties
• communicate to the clerk how each point was considered
• ensure the reasons for the final decision are explicit
• reach a decision by a simple majority of votes cast (where the votes are equally divided the chair has a second or casting vote)
• either uphold or dismiss an appeal without it being subject to any specified conditions

After the appeal hearing

17. After the appeal hearing, the clerk should tell the parties of the Panel’s decision. The decision letter must contain a summary of relevant factors that each party raised and the Panel’s considerations. It must also give clear reasons for the Panel’s decision, including how the Panel decided on any points raised by the parties during the hearing.
18. The clerk or chair must sign the decision letter and send a copy to all parties within 5 school days, wherever possible. The clerk should inform all parties if they expect a delay in sending out the decision letter.

In-year and late applications

19. ‘In-year applications’ are applications when a person applies to a school outside the normal admissions round and at a time when the child should already be attending school. For ‘In Year’ applications received outside the normal admissions round and if places are available then children qualifying under the published criteria will be admitted. If there are places available but more applicants than places then the published oversubscription criteria will be applied.
20. ‘Late applications’ are applications for entry which are submitted before the first day of the first term in the admission year, but have not been made in time to enable the local authority to offer a place on National Offer Day.

Chronology of events

21. For the academic year commencing September 2021, All Hallows received 454 applications for a place in Year 7, of which 432 were on-time applications. The agreed PAN number for Year 7 was 125.
22. In October 2020, Miss H applied for school places for Child X for the academic year commencing September 2021. At the time, she did not apply for a place at All Hallows and instead listed a preference for two other schools in the area.
23. In mid-May 2021, Miss H wrote to the Council to inform she had made a mistake when selecting her preferred school for Child X. She asked to apply for a Year 7 place at All Hallows as she believed this would better suit Child X’s needs for a positive and supportive educational learning environment. The Council added the preference to Miss H’s application, though it was considered a late application.
24. At that point of Miss H’s application for Child X to attend All Hallows, places had already been offered and accepted for the forthcoming Year 7 intake. There was therefore no place available for Child X and he was ranked according to the All Hallows’ oversubscription criteria and placed on a waiting list.
25. In late May 2021, Miss H submitted an appeal to the Council on the grounds that should Child X attend the school offered, this would have a detrimental effect on his educational welfare. Further, Miss H said that Child X has special educational needs (SEN) which meant he would benefit from smaller groups which All Hallows could offer.
26. In addition, Miss H provided a copy of a letter provided by Child X’s primary school which supported him attending a smaller educational setting.
27. At the end of May 2021, All Hallows released an appeal statement relating to admission appeals. It said there were no longer any available places in Year 7 for September 2021. Further, it explained that to admit more children to Year 7 would prejudice the health and safety and wellbeing of children, the quality of educational provision and the efficient use of resources in the school.
28. In mid-July 2021, the Council sent Miss H the appeal agenda which included the school’s appeals statement and her application for appeal with supporting documents. The same documents, including a letter of support from Child X’s then primary school, were sent to Panel members days later.
29. On 14 July 2021, the Panel heard Miss X’s appeal. On the day of the appeal, Miss H was told that this would now be a telephone hearing as opposed to a video conference. During the hearing, it was All Hallows’ position that it could not accommodate any additional pupils beyond the PAN for the following reasons:
1. The structure of the school building already accommodates 54 children over its designed capacity. To admit more children would lead to overcrowding in classroom areas and reduce access to specialist resources. Moreover, admission beyond the PAN could have the effect of prejudicing the health and safety of learners in areas of the building due to overcrowding.
2. The school already supports many learners with SEN and 10 learners currently have an EHCP in year 7. The disproportionate number of children with SEN and/or additional educational needs already at the school uses the maximum staff time, resilience, and resources. The school says it has no other capacity to give in this area.
3. To admit further learners would inevitability lead to greater class sizes which in turn would create extra workload for teachers and support staff who are already at capacity. It would also reduce access to specialist provision such as ICT, science, and food technology resources at the school.
30. For these reasons, All Hallows told the Panel that to admit more children to Year 7 would prejudice the health and safety and wellbeing of children, the quality of educational provision and the efficient use of resources.
31. At the appeal hearing, it was Miss H’s position that Child X held many of the values and personal attributes which would make him an asset to All Hallows. Further, she explained that Child X has SEN which could be better met by the School’s experience and resources in supporting similar children. In Miss H’s view, a decision not to admit Child X would be prejudicial to his wellbeing and development. Further, Miss H explained Child X’s primary school was of the same view which informed its letter to support her admission appeal.
32. The Panel subsequently had regard to whether admission arrangements complied with the Code and that all other admission laws and arrangements were correctly and impartially applied. No concerns were identified by the Panel.
33. Following deliberations between Panel members, it accepted the All Hallows’ case that to admit further children to Year 7 would prejudice the quality of educational provision and the efficient use of resources. It therefore considered whether Miss H’s case outweighed that of All Hallows’. In reaching this conclusion, the Panel noted Miss H’s application was late, there were already a large number of children with SEN being supported and the strain on All Hallows in this respect was well above the national average. The Panel therefore resolved that the prejudice to Child X did not outweigh the prejudice to All Hallows. The Panel members therefore voted unanimously not to admit entry to Child X.
34. In late July 2021, the Council wrote to Miss H with the Panel’s decision not to offer a place for Child X. The letter informing Miss H of the decision emphasised the difficulties All Hallows faced in accepting additional children beyond the PAN and noted Miss H’s reasoning for appealing. The letter mistakenly said however that Child X’s application to All Hallows had been considered as an in-year application, as opposed to a late application.

My assessment

35. By law, I cannot question the merits of the Panel’s decision to refuse admission to Child X if it adhered to the Code and without procedural failing. I must therefore have regard to whether Miss H’s appeal was conducted with procedural accuracy.

Decision to refuse admission

36. In my view, the Panel properly had regard to the Code. It correctly had regard to All Hallows’ admission arrangements and the pressures it faces. By considering the factors outlined in Paragraph 28 (a) to (c), the Panel resolved that to admit Child X would prejudice the provision of efficient education or the efficient use of resources. The Panel then weighed this against Miss H’s reasons for appeal (see Paragraph 30), specifically the matter of Child X’s SEN, values and personal attributes. In conclusion, the Panel decided that Child X’s circumstances did not outweigh the prejudice to All Hallows should it admit Child X. I have not determined any fault and so I have no authority to question the merits of the decision. I will now consider the alleged procedural faults referenced by Miss H.

Appeal documents

37. To support Miss H’s appeal, she provided the Council a copy of a supporting letter from Child X’s primary school that he be admitted to All Hallows. Miss H said that it became clear during the appeal hearing that one Panel member had not received the letter. As a result, Miss H believes her appeal documents were not fully considered by the Panel which prejudiced the appeal.
38. I have reviewed the appeal papers and process in this case and note that the full appeal documents were sent to Panel members in mid-July 2021. I do not therefore accept the Panel members did not review and have access to the full appeal documents before making a decision. In addition, I have seen evidence in the notes of the Panel clerk that Miss H discussed that Child X’s primary school had supported the appeal and issue of admission. On that basis, it is clear that the Panel was aware of the letter from Child X’s primary school and the issues it raised. I have not found any evidence of fault with regard to Miss H’s appeal documents and the points she makes about these not being fully considered.

Minutes of the appeal hearing

39. In close connection with the above, Miss H explains the hearing minutes of the Panel clerk do not reference that a member of the Panel did not have access to all the appeal papers. She says therefore the Panel clerk failed to maintain an accurate record of the discussions. However, as identified above, I am satisfied Miss H’s appeal documents were received by the Panel members and fully considered. I have not identified any fault concerning this issue and I am not persuaded the notes of Panel clerk should not be relied upon. The evidence demonstrates the Panel fully considered the issue of Child X’s SEN and Miss H’s view that All Hallows could best meet his needs. However, the Panel resolved unanimously that the prejudice to All Hallows would be greater should it admit a further child. I am satisfied this decision was reached without procedural failing.

Change of appeal format

40. Miss H says she had been informed that she would be able to present her appeal reasons in person virtually. However, on the day of the appeal, she was told that this would now be a telephone hearing. In summary, Miss H feels that this took away from her ability to present in person (albeit virtually). Further, she also references Paragraph 2.12 of the Code that “appeal panels must allow appellants the opportunity to appear in person and make oral representations”.
41. In April 2020, temporary regulations came into force, to give admission authorities, local authorities and appeal panels some flexibility when dealing with appeals during the COVID-19 pandemic. These temporary changes applied to the format of hearing admissions appeals. For instance, where it was not reasonably practicable to hold face-to-face hearings for reasons related to the COVID-19 pandemic, hearings should be conducted by telephone or video conference. Where telephone or video conference is not possible, appeals conducted entirely on the basis of written submissions are acceptable. At the time of the appeal, Paragraph 2.12 of the Code was not a procedural requirement and so I do not find All Hallows or the Panel to be at fault for not offering an in person hearing.
42. With respect to the hearing changing from a video conference to telephone call at short notice, the Council has explained there were IT issues which caused the change in the hearing format. I accept that reasoning and Miss H was still afforded a telephone hearing to make representations in support of Child X’s admission. In any event, I have not been provided any evidence Miss H was prejudiced by reason of the change in hearing format. Further, I do not consider the appeal outcome would have changed had Miss H been able to present in person or by video conference. This is because All Hallows was ultimately oversubscribed and the prejudice to Child X did not outweigh that of the schools. I have not found evidence of fault in relation to this part of the complaint.

Type of application

43. Miss H has explained that the Panel wrongly assessed Child X’s application as an in-year application. She says the application was late and should not have been considered any other way. I have reviewed the notes of the Panel’s clerk and it is unambiguous that Child X’s application was considered late by the Panel. I do however accept the clerk wrongly stated in the decision letter to Miss B that “the application was received later and was considered as an in-year application.”
44. I asked the Council to provide clarification on this point which in turn contacted All Hallows and the Panel’s clerk. All Hallows’ position is that its statement following Miss H’s initial application stated Child X had not been offered a place due to the application being late and All Hallows being oversubscribed. It therefore confirmed Miss H’s application was considered late and not an in-year application. However, the Council accepts the passage in the letter (above) was a single clerical error on behalf of the clerk when drafting the letter. It adds the error is regrettable and the clerk is very apologetic for the mistake. I do therefore find there was minor fault by the admissions authority in communicating the outcome of the Panel appeal to Miss H. However, this had no bearing on the Panel’s determination of the appeal since it was, as a matter of fact, considered late.
45. I do not therefore consider Miss H or Child X has suffered serious loss, harm or distress by reason of the identified fault. In other words, I do not consider Child X would have been admitted to All Hallows, but for the fault identified.

Back to top

Final decision

46. The admissions appeal was conducted with procedural accuracy and adhered to the Code. I have not identified any fault by the Panel in the way it considered the appeal. I did identify minor fault by Panel’s clerk in the way (s)he communicated with Miss H, but this did not affect the way the hearing was considered and the conclusion reached. The complaint is therefore not upheld.

Back to top

Investigator's decision on behalf of the Ombudsman