The Ombudsman's final decision:
Summary: Mr X complains an appeal panel failed to properly consider an appeal for a school place for his brother, Y. We have found School A at fault for failing to ensure the consideration of Y’s appeal was properly documented. School A has agreed to apologise to Y and arrange a fresh appeal hearing to remedy the injustice caused.
- Mr X complains an appeal panel failed to properly consider an appeal for a school place for his brother, Y. Mr X believes the panel did not properly consider the specific circumstances of Y’s case when making its decision. Mr X says this has resulted in Y being unable to attend his preferred school, negatively impacting his wellbeing and mental health.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
- I considered information provided by Y and Mr X and discussed the complaint with Mr X.
- I considered information and notes provided by the school (School A) about Y’s appeal hearing, co-ordinated by the local authority (the Council).
- Both Mr X and School A had an opportunity to comment on a draft version of this decision. I considered their comments before making a final decision.
Relevant Legislation and Guidance
The School Admissions Appeals Code
- The School Admission Appeals Code 2012 (the Code), published by the Department for Education, provides statutory guidance about school appeals. The purpose of the Code is to ensure the independence of admission appeals panels and to ensure that all admissions appeals are conducted in a fair and transparent way.
- The Code has the force of law. Where it imposes mandatory requirements, or refers to requirements in legislation, the words ‘must’ and ‘must not’ are used.
- Section 3 of the Code explains the process that must be followed when reaching decisions on appeals of the type made by Y. There is a two-stage decision making process: first, the panel must examine the decision to refuse admission; and second, it must balance the arguments made by the school and the appellant.
- At the first stage, the panel must consider:
- whether the admissions arrangements complied with the law; and
- whether the admissions arrangements were correctly and impartially applied in each case.
- the effect of a further admission on the year group as it moves through the school;
- whether the school has made any changes to its physical accommodation or organisation since an admission number was originally set for the relevant year group; and
- the impact on the organisation and class sizes.
- The Department for Education has published non-statutory advice for clerks and appeal panels on school admissions appeals (the Guidance). This provides information to support clerks and panels to ensure appeal hearings are conducted in a fair, transparent and consistent manner.
- The Guidance says the panel should ensure to communicate to the clerk how it considered the points raised by each party. The panel should also ensure the reasons for the final decision are explicit.
What I found
Background to the appeal
- In mid-2021, Y’s family applied for a place for Y in Year 11 at three schools. The Council advised that each of the schools were full and offered Y a place at an alternative school. The Council said all other schools closer to Y’s home were full.
- In September 2021, Y’s family submitted an appeal for a place at School A. In the submission, Y explained the grounds for his appeal. Y said that:
- he had been experiencing flashbacks, mental health difficulties and poor concentration, arising from recent trauma suffered before he sought asylum in the country. Y said he was receiving treatment for this.
- due to his mental health issues, Y would be unable to commute to the school offered if his brother, Y’s carer, could not travel with him.
- the financial support allocated to him was not sufficient to live on and purchase two daily bus tickets for Y and his brother, who was acting as his carer, to commute to the school.
The appeal hearing and decision
- The clerk’s notes of the hearing show that three panel members and a representative from School A were in attendance. The panel considered Y’s case based on written evidence, as requested by Y’s family, who were not in attendance.
- School A is a Voluntary Aided School and the Governing Body of School A is the admissions authority. Whilst the Council co-ordinates admissions arrangements and facilitates appeals on behalf of School A, the Governing Body of School A remains responsible for both.
- School A presented its case to the panel. Briefly summarised, School A said that:
- its PAN for Year 11 was 240 and it was already accommodating 257 students;
- admitting more students was causing health and safety concerns, due to limited space in specialist rooms and restricted availability of practical equipment;
- overcrowding had implications for the safe use of the school environment and created added supervisory responsibilities for teachers; and
- growth in student numbers was causing overcrowding on buses, leading to students having to make alternative travel arrangements at short notice.
- Paragraphs 9 and 10 set out the decision-making process a panel must follow. As also outlined in paragraphs 12 and 14, the clerk must ensure to take an accurate record of the hearing and the panel should ensure the reasons for its decision are explicit.
- The decision letter sent to Y’s family after the hearing contains a summary of Y’s case and says the panel gave it careful and detailed consideration. While this suggests the panel were familiar with Y’s circumstances, the notes of the hearing do not evidence detailed consideration of the type described.
- As outlined in paragraph 11, the panel must consider a school’s PAN, but the admissions authority must be able to demonstrate prejudice beyond the fact the PAN has been reached. School A’s case explained it had already exceeded its PAN of 240 for the current Year 11, with 257 students on the roll, and further admissions would have an impact on resources. It cited restricted access to specialist equipment and classrooms, increased pressure on staff, and the capacity of local transport services.
- School A’s written case also confirmed the PAN for Years 7-10 was 270, a higher figure than the actual number of students already in Year 11. The number of students already in Year 10 was 261, with even higher figures already on the roll in Years 7 through 9.
- The clerk’s notes show the panel correctly had regard for the PAN in Year 11. The notes do not, however, show if the panel probed the impact of further admissions beyond the PAN, as the Code suggests. It is not clear if the panel explored why admitting Y would cause prejudice for School A, given School A would have to manage a higher number of students in Year 11 the following year. The lack of clarity on this point is fault.
- The notes show the panel concluded that School A’s admissions arrangements were lawful and properly applied, but offer no detail showing how the panel made this determination. The notes only state “Stage 1 proven: Yes”.
- Information included with Y’s appeal outlines the difficulties and injustice he endured before seeking asylum, explaining the impact these experiences had on him. These experiences informed Y’s choice of preferred schools, with Y explaining why attending schools further away presented practical, physical and financial difficulties. The panel concluded the reasons Y gave for his appeal did not outweigh the prejudice his admission would cause School A, but the notes offer no explanation as to how the panel reached this decision. Crucially, there is no evidence showing how the panel considered the specifics of Y’s case and balanced these arguments against those made by School A. The notes only state “As per the written case from the parent.”
- The lack of explanatory detail recorded in the notes of the hearing means it is not possible to be certain how the panel reached its conclusions at both stages in the decision-making process. This is fault.
- I am of the view the faults identified have caused Y an injustice. This is because there is uncertainty as to whether the panel properly considered Y’s appeal, in line with the requirements of the Code and the Guidance.
- Further, both the panel notes and the decision letter reference the case made by “the parent(s).” The details of Y’s appeal submission make clear Y has been separated from his parents whilst seeking asylum. Given the specific circumstances, the repeated references to Y’s parents are insensitive and further undercut the suggestion of careful consideration of Y’s case.
- Within four weeks of the final decision being issued, School A has agreed to:
- provide a written apology for the failure to adequately record the panel’s consideration of Y’s appeal and the uncertainty this has caused;
- arrange a fresh appeal hearing with a new panel and clerk, to consider Y’s appeal again; and
- draw to the clerk’s attention the faults highlighted in this statement, so training needs can be considered to prevent these occurring in other cases.
- I have found School A at fault for failing to ensure the panel’s consideration of Y’s appeal was properly documented. This fault has caused uncertainty for Mr X and Y. The agreed actions provide a remedy for this injustice.
Investigator's decision on behalf of the Ombudsman