Summary: We found fault on Miss M’s complaint about the appeal panel failing to follow proper procedures when it rejected her appeal against the School governors’ decision to refuse her son a place in year 7. There is no evidence of the decision at the stage 1 hearing. Irrelevant information was considered. Not all her submissions were considered. Evidence was supplied after the first stage hearing which appellants did not see. There was a failure to record reasons for the panel’s decision. The agreed action remedies the injustice caused.

The complaint

1. Miss M complains about the appeal panel failing to follow proper procedures when it rejected her appeal against the School governors’ decision to refuse her son a place in year 7 at her preferred school: as a result, the family is under a great deal of stress and has the uncertainty of not knowing if the decision would have differed but for the fault.

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The Ombudsman’s role and powers

2. If we are satisfied with an organisation’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)
3. 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)
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 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. An appeal panel must decide whether any material not submitted by the specified deadline is to be considered, taking account of its significance and the effect of a possible need to adjourn the hearing. (paragraph 2.10)
9. One party must not be left alone with the panel in the absence of the other. Where one party is unable to or has failed to attend, the clerk must remain with the panel and remaining party at all times. (paragraph 2.15)
10. Appeal panels must operate according to principles of natural justice which includes ensuring written material and evidence must have been seen by all the parties. (paragraph 2.21)
11. Appeal panels must follow the 2-stage decision making process for this type of appeal. (paragraph 3.1)
12. 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)

13. 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)
14. 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)
15. 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.
16. 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)
17. 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)
18. 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)
19. Appellants may complain about maladministration 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)

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Cardinal Heenan Catholic High School, Liverpool

20. This is a voluntary aided Catholic School under the trusteeship of the Archdiocese of Liverpool. Its governing body is the admissions authority and is responsible for taking decisions on admission applications. The co-ordination of admission arrangements is done by the local Council. Parents must complete a local authority preference form or apply online. If a parent wants the application considered against the School’s faith/denomination criteria, they also need to complete the Supplementary Form.
21. Its published admission number is 210 for students each year for year 7. If it gets more applications than it has places available, it applies its oversubscription criteria.
22. Its oversubscription criteria ranks each applicant from criteria 1 (the highest which is for looked after children, for example) to 9 (the lowest, for ‘Other children’). Criterion 2-4 are for baptised Catholic children. Where it cannot offer all places within any of the criteria, places are allocated to children who live nearest the school as measured in a straight line from their home address to the school using the local authority’s computerised measuring system.
23. Parents refused a place can appeal to an Independent Appeals Panel. The School instructed a private consultancy firm to arrange and hear the appeals.

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How I considered this complaint

24. I considered all the information Miss M sent, the notes I made of our telephone conversation and the one I had with the clerk to the appeal panel, and the School’s response to my enquiries. I sent a copy of my draft decision to Miss M and the School. I considered their response as well as that of the clerk.

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What I found

25. Miss M applied for a place at the School for her son N to start Year 7 in September 2022. N is not a Catholic, nor a member of any other religion or faith community. The School governors refused N a place because it received more applications than it had places. While its published admission number was 210, it received 530 applications. All places up to its published admission number were allocated to those who came within a higher criteria than N under its admission policy. The last child offered a place was criteria 4, with a home to school distance of 2.171 miles. N came within criteria 9.
26. Miss M appealed the decision. Her grounds for appealing it were N having special educational needs, other health needs, along with further ongoing assessments from educational psychologists. He did not have an Education, health, and care plan (EHCP) although was being assessed for one. She said N was attending the local church every week as he hoped to be baptised a Catholic. Due to the Covid-19 pandemic, this was delayed. N also received personal independence payments due to additional disabilities. He was an anxious child. She explained her worries about his ability to commute to the allocated school. This is because he was not capable of travelling two and a half hours a day on his own, which involves taking four buses to get to and from school.
27. In support of her appeal, Miss M sent a copy email from the junior school’s class teacher. This talked about his health needs, anxiety, his friends all going to the School, and his increased need for support. She also sent a copy of his educational psychology report. This set out what he was diagnosed with and the amount of support he needs at secondary school. It confirmed he was vulnerable. The report also said, ‘the expectations of [N] to travel independently on two buses to and from school each day is wholly inappropriate’. Even if he could do this, the report said the level of anxiety it would cause would mean it would impact on his ability to manage when he got to the allocated school.
28. In May 2022, the appeal panel considered the appeal. The School explained the hearings were done virtually. The Archdiocese, as administrators of the appeals, kept the virtual hearing to ensure all hearings could be considered in the timescales required by the Code. The pandemic caused the loss of some panel members and there was the challenge of keeping some members who did not feel comfortable with face-to-face hearings.
29. The appeal was heard in two stages. The first stage was held on a different day to the second stage hearing. The panel, the presenting officer, the clerk, and Miss J all attended virtually.
30. The only documents I have seen for the first stage hearing is one made by the clerk which records the questions panel members asked the presenting officer. This document shows several questions the presenting officer could not answer at the time but, agreed to respond so the panel could get the information to parents. These included: a question about what the net capacity figure would be if the School removed the rooms it wanted to remove; the dates of the last offer of a place was refused and the date additional looked after children and the EHCP child were admitted to the School; a discrepancy in the School’s statement of case said it had five looked after children but the information before the panel showed only four.
31. I have not seen any record showing the panel’s decision at this stage.
32. The notes I have seen were made by the clerk of the second stage hearing. During this hearing, Miss M told the panel N did not have good road sense and nor could he commute on two buses to and from school. She explained N was under a doctor at the hospital, the logistical problems she would face getting him and his sibling to different schools, and his need for him to be with familiar friends.
33. She explained N was still being assessed for an EHCP. The panel asked her various questions about baptism. The panel pointed out only one child was coming to the School from the junior school and while five friends were coming from his football team, there was no guarantee they would be together at School.
34. I have also seen the clerk’s notes recording how the appeal panel reached its decision. These show they took account of the following: N was not a baptised Catholic; one member mentioned this was a ‘medical one’ but was still considering refusing it; not being baptised was raised again; the Chair agreed and noted N was offered the second preference so would also vote to refuse the appeal; the Chair noted the educational psychologist report; there was no EHCP; baptism was raised again; how Covid-19 stopped him getting baptised and no evidence from the church of this.
35. The notes also record panel members initially saying they had recorded this as a C, B to a C, and C to a B case. The clerk explained what this coding used by members meant when reaching their decision:

• A: Where a case needed discussion/consideration and ‘would be at a higher level in terms of evidence and circumstances’.
• B: Where a panel member needed discussion as they were not of an opinion to dismiss or award without further consideration.
• C: Where a panel member felt there was not enough, or a lack of any evidence, to support awarding.

36. Each case was then placed in to one of three tranche’s:

• 1st tranche: The panel listed all the C cases, agreed to refuse them but they go in to a further tranche for discussion. Each case was reviewed to confirm it was unanimous in reaching a decision not to uphold the complaint.
• 2nd tranche: Panel members reviewed all the B cases. All those warranting further discussion were put in to the 3rd tranche with the A cases.
• 3rd tranche: The panel reviewed all A and B cases.

37. In response to my question about why the panel considered baptism at stage 2, the clerk confirmed all cases were looked at for baptism as this was a faith school and part of the admission criteria. The clerk also said the decision was based on no EHCP and the educational psychologist’s report.
38. When I spoke to the clerk, and when he responded to my draft decision, he explained the panel was making sure at the stage 2 hearing that no child had been overlooked in terms of getting allocated a place. This was because some parents failed to send evidence of their child’s baptism with the application.
39. The appeal panel sent Miss N its decision, refusing her appeal. The letter said the panel asked the School a number of questions, the answers to which it did not have for the hearing. The School later sent this information which was shared with the panel and was now included in the letter. The letter went on to explain having considered her case for why N should be admitted, the panel decided the prejudice to the School was not outweighed by her submissions.
40. Miss M believes it did not consider her appeal properly and so complained to us. N remains at home and is not attending any school.

My findings

41. I make the following findings on this complaint:
1. I have not seen a record of the first stage hearing decision. I was not sent a copy of the notes recording the panel’s decision after it considered whether the admission arrangements were correctly and impartially applied to each case, and whether an additional child would prejudice the School’s provision of efficient education or the efficient use of its resources. This is fault.
2. The decision letter told Miss M there were several questions from the panel the School was unable to answer at the first stage hearing. This information was later sent by the School to the clerk who shared it with the panel. Part of the information the School sent was a report from October 2021 which concluded the School building would not allow the published admission number to go back to 240. It highlighted the School was about five classrooms short. I have seen the panel’s questions the presenting officer needed to get back to the panel about.

In response to my draft decision, the clerk sent me a copy of the information he says it later received. All this is dated before the first panel hearing. The clerk’s decision letter said the School did not have this information at the time of the hearing. It also said the School supplied a report, a copy of which I have not seen.

3. While the decision letter referred to, and summarised the information the School later provided by way of a report, this was not shared with all those who appealed before the panel decided their appeals. This is fault. This is because this introduced new evidence and information which appellants had not seen. I am not satisfied the appeal was conducted in a fair and transparent way required by the Code (paragraph 2.21).
4. There is no evidence showing the panel decided whether the material it received should be sent to appellants before it reached its decision or whether it needed to adjourn the hearing to allow appellants to consider it properly (paragraph 2.10). On balance, I consider the panel should have considered adjourning the stage 1 hearing to allow the presenting officer time to submit this information, so all appellants had the benefit of seeing and considering it, rather than just the School and the panel. This is fault.
5. I have not seen a copy of the October 2021 report the decision letter referred to so cannot say whether it would have made a significant difference to the appeal submissions of Miss M or any other appellant at stage 1.
6. The minutes of the panel reaching its decision show the panel took an irrelevant consideration in to account. As Miss M had raised the issue of baptism in her submissions, the panel was entitled to ask her questions about it. The minutes show members took the failure to have N baptised as a factor when deciding the stage two hearing. The fact N was not a baptised Catholic was relevant to the first stage hearing only, not the second. This is because it was relevant to whether the admission authority applied the admissions criteria properly. It was not a relevant consideration at the second stage hearing.
7. I note the clerk said the panel was being diligent by asking appellants about baptism during the second stage hearing. Although I accept the panel may have been looking at this issue to make sure N had not been allocated a place because of a failure to provide evidence of the baptism, I consider it went beyond this and amounted to fault. The panel’s questioning of Miss M went well beyond merely trying to establish whether the admission policy was properly applied. The panel took account of an irrelevant consideration which was fault.
8. I give the following examples of questions asked of Miss M during the hearing by panel members as evidence supporting my conclusion:

• “Just to go on with my questions, you talk about Baptism, you don’t have a religion on the documents. Where are you up to with that process?”
• “Did you have any conversation with the priests regarding any letters that could have been submitted with your documentation about where you’re up to in the process?”
• “I just want to explore the Baptism a little bit more….Cardinal Heenan’s admission policy already had other Baptised children as part of the allocation process….But why did you Baptised earlier? You could have them Baptised well before COVID”
• “I’m not saying that. I’m just asking the question. [N] is now 11 years of age, and you’re talking about having been Baptised at 11 years of age. Did you not consider how [sic] many Baptised when he was younger?”
9. I also give the following examples of comments made by panel members during their decision-making meeting which also support my conclusion:
• “[N] is not Baptised Catholic”
• “There is no proof of Baptism”
• “No there isn’t. They did get their second preference [Y]. So I will move to a No”
• “So [N] is not Baptised”
• “I made a note from the discussion around Baptism. It did not make sense. She said she did not know about RC but was in the process of getting Baptised in June 2021”
• “Covid stopped mum getting him Baptised. However she had no letter from the church to back up the claim”
• “Churches have been open since May last year”
10. Miss M raised several issues in her appeal submissions which the panel should have considered but did not. For example, the record of the panel’s decision makes no reference to N’s anxiety, although there is reference to the educational psychologist report and to this being ‘medical’. There was no mention at all about the commuting N needed to do, the evidence of the report which said this expectation was wholly inappropriate, the logistical problems Miss M would face, his lack of road sense, the evidence about him being a vulnerable child, and the support he would need, for example. The record does not show the panel considering these factors and deciding what weight, if any, to give them. It gives no information about how the panel balanced her submissions against the prejudice caused as required under stage 2. This is fault. This breached the Code (paragraph 3.8).
11. The Code required the admission authority to send a decision letter with clear reasons in it showing how any issues of fact or law were decided. The letter said the panel went on to the second stage hearing which involves balancing Miss M’s reasons for wanting N at this school against the prejudice caused by allowing him a place there. It failed to explain how the panel carried out this balancing. Strangely, it referred again to N being in criteria 9 and the last place offered under distance under criteria 4. This was an irrelevant consideration as again, this was for the panel to consider at the first stage hearing, not the second. This was fault.
12. The letter merely said having considered her case, particularly her written and verbal submissions, and ‘taking all this into account, the Panel dismissed your appeal’. It went on to confirm her submissions did not outweigh the prejudice to the school. While this gave Miss M the decision, it did not give her the reason for the decision. This is a breach of the Code (paragraph 2.25).
13. I also took account of government guidance ‘Advice for clerks and appeal panels on school admission appeals’ (March 2019). I consider the fault found also amounted to failures to follow this guidance. This states during the decision making by the panel, the clerk should, ‘prompt the panel to consider all the issues raised by the parties and record the decision the panel has come to on each of the issues raised’.

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Agreed action

42. I considered our guidance on remedies.
43. The School agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Miss M a written apology for: failing to provide the first stage hearing decision record; considering irrelevant information when making a decision; not considering relevant submissions; allowing new information/evidence which was not disclosed to appellants before reaching a decision on the appeals; failing to record reasons for the panel’s decision.
2. Arrange a rehearing of her appeal as soon as possible with a new appeal panel.
3. Review why the identified fault happened, what training needs it needs to meet for panel members and the clerk and arrange for this to be done.
4. Ensure the identified fault is communicated to all the clerks and panel members it uses.

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Final decision

44. I found fault on Miss M’s complaint against the School. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman