Summary: Mrs Y complains the appeal panel did not properly consider her case when she appealed against the refusal to admit her child, D. She also says her request for an alternative hearing date was not properly considered, despite her exceptional circumstances. When refusing the appeal, the clerk’s decision letter referred to an old version of the statutory guidance. In our view, there is some procedural fault which creates injustice in the form of uncertainty. The governing body of the school has agreed to undertake the actions listed at the end of this statement.

The complaint

1. Mrs Y complains about the school appeal hearing for her child, D. She says the appeal hearing was not held in accordance with the statutory ‘School Admission Appeals Code’ (2022). In particular, she says:
• The school failed to provide all relevant paperwork before the appeal hearing and did not give a deadline for any additional submissions;
• The school did not properly consider her request for an alternative hearing date;
• The school applied the incorrect version of the statutory guidance when considering the appeal; and
• The panel did not fully and properly consider her case.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way a school admissions appeals panel made its decision. If there was no fault in how the panel made its decision, we cannot question the outcome. 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)
3. 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)

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How I considered this complaint

4. During my investigation I considered the information provided by Mrs Y and gave her the opportunity to discuss the complaint with me by telephone.
5. I made enquiries of the school and considered its response. I also consulted the relevant law and statutory guidance which I have referred to in this decision.
6. Mrs Y and the school had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

What should happen

7. Statutory guidance about school admissions and appeals can be found in the ‘School Admissions Code’ and ‘School Admission Appeals Code’. Both are published by the Department for Education. 
8. Under the system of coordinated admissions, parents make a single application for a school place to their home council where they pay their council tax to. 
9. All schools must have a set of admission arrangements containing oversubscription criteria. The school’s admission authority uses these to decide which children will receive an offer of a place if there are more applications than places available.
10. Parents have the right to appeal an admission authority’s decision not to offer their child a school place. Appeal hearings must be held in private and conducted in the presence of all panel members and parties. Appeal panels must act according to the principles of natural justice. 
11. A clerk supports the appeal panel. Parents can submit information in support of their appeal. The clerk must send all papers required for the hearing a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority. 
12. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions. 
13. The admission authority must also provide a presenting officer at the hearing to explain the decision not to admit the child and to answer questions from the appellant and panel. 
14. Panels must follow a two-stage decision making process. At stage one the panel examines the decision to refuse admission. The panel must consider whether: 
• the admissions arrangements complied with the mandatory requirements set out in the School Admissions Code; 
• the admission arrangements were applied correctly; and
• the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.  
15. If a panel decides that admitting further children would “prejudice the provision of efficient education or the efficient use of resources” they move to the second stage of the process. 
16. At stage two, the panel must balance the prejudice to the school against the appellant’s case for the child to be admitted.  
17. 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 that a child shall be admitted to a school is binding on the admission authority concerned. 
18. The clerk to the panel must write to the appellant, the admission authority and the council with the panel’s decision and reasons. 

What happened

Before the school admissions appeal hearing

19. Mrs Y applied for her child, D, to attend the school from September 2023. The deadline for on-time applications for the secondary 2023 intake was 31 October 2022. Mrs Y submitted her online application on 25 September 2022 naming the school as her first preference.
20. The school is a voluntary aided Catholic secondary school. Its governing body is the admission authority. The admission authority agreed the school could admit 205 children in year seven from September 2023 without it affecting the provision of effective education. This is its published admission number.
21. The Council issued offers for secondary school places on 1 March 2023. D did not receive an offer of a place at the school due to the number of applications received from children with higher over-subscription criteria and a closer home to school distance.
22. Dissatisfied with the refusal, Mrs Y submitted an appeal. The school’s appeals are administered by the local Archdiocese.
23. Mrs Y received an acknowledgement of her appeal submission which said “the Education Department will now post out an appeal pack to the given address. Please read through it thoroughly and complete the appeal form and submit any relevant supporting documents”.
24. Mrs Y then submitted a second application to the Council on 8 March 2023. She again named the school as her first preference followed by two other schools.
25. The Council has confirmed the school did not automatically receive a copy of D’s application, but applications are provided upon request. However, the Council did issue a list of all applicants to the school to allow for ranking to take place before offer day. The Council confirms that D’s on-time application was included in the ranking list.
26. However, when the Archdiocese requested paperwork in April 2023 regarding the upcoming hearings, the Council only sent a copy of D’s late application. It also sent a copy of the March 2023 refusal letter.
27. After receiving the provisional date for the virtual appeal hearing, Mrs Y contacted the Archdiocese to request an alternative date. She explained that her younger child was due to have “major surgery” a few days prior to the hearing and that Mrs Y would still be in hospital with her child at the time of the hearing.
28. The Archdiocese responded to confirm the appeal would be heard in Mrs Y’s absence if she was unable to attend.

During the appeal hearing

29. The virtual appeal hearing took place in May 2023. The school’s head teacher presented the school’s case at stage one of the hearing. The panel and parents then had an opportunity to ask questions.
30. The clerk’s notes show the panel decided the school’s admission arrangements complied with the statutory requirements and were correctly applied. The panel also decided that the admission of further children would prejudice the efficient education or others and the efficient use of resources.
31. The appeal hearing proceeded to stage two.
32. The clerk’s notes show the head explained the reasons for the refusal of D’s application. Mrs Y then became distressed and said the admissions process was unfair. She said the panel had not seen all her evidence. The chair of the panel asked Mrs Y to explain further. She said the panel had not seen a letter of support from D’s current primary school.
33. The notes show the clerk held up the letter in question and ask whether all panel members had sight of a copy. The panel confirmed they did.
34. The panel asked Mrs Y whether any further information was missing from her submission. She said there was not. The panel confirmed that Mrs Y was happy to proceed.
35. Mrs Y spoke about D’s mental health and the need for them to be with friends who would be attending the school. Mrs Y also explained that D helps to look after their younger sister and Mrs Y will not be able to manage if D has to attend another school. This was due to logistical problems and the distance between the school allocated to D and their sister’s primary school.
36. The panel then asked Mrs Y some questions about her circumstances.
37. The second stage of the hearing concluded with the chair confirming with Mrs Y that she had been given the opportunity to raise everything she wanted to. Mrs Y confirmed she had.
38. The panel considered Mrs Y’s case. The clerk noted, “At stage 2, on balance the panel felt that the parent’s case did not outweigh the case made by the school”.
39. The clerk went on to summarise Mrs Y’s case and noted that her appeal relied heavily on the needs of the younger sibling, rather than D. The panel agreed that, “… it would be more convenient for the parent to have all three children on what is essentially one site but this could change and did not outweigh the very strong case made by the school”.

After the appeal hearing

40. Mrs Y received a letter from the clerk which outlined the panel’s decision to refuse her appeal. In summary it said:
• The panel heard the appeal in accordance with the legislation and statutory guidance as modified by the temporary amendments made in April 2020 due to the COVID-19 pandemic.
• The panel was satisfied the school had determined, published and applied its policy correctly. All places were allocated according to the agreed criteria.
• The school presented a strong case to demonstrate that the admission of an additional pupil would prejudice the efficient education of others.
• The panel considered Mrs Y’s circumstances. The school is close to the primary school attended by her younger children. In the future, the school would be suitable for D’s younger sibling due to her SEN needs. The school is also attended by D’s friends.
• Taking everything into account, the panel decided that Mrs Y’s case did not outweigh the case made by the school.
41. Dissatisfied with the outcome, Mrs Y complained to the LGSCO. In summary, she said:
• She did not receive all relevant correspondence, including the appeal pack and the deadline date for supplementary information.
• The request to have an alternative appeal date was refused without proper consideration, despite her exceptional circumstances at the time.
• The appeal was not heard in accordance with the correct version of the Code.
• The panel did not consider her specific case and failed to refer to her supporting evidence in its decision letter.

Was there fault causing injustice to Mrs Y and D?

42. In our view, and based on the information seen, we find procedural fault in the handling of Mrs Y’s appeal. This is because:
• There is no evidence to show the Archdiocese sent Mrs Y the appeal paperwork before the hearing. This is contrary to paragraphs 2.7 and 2.10 of the School Admissions Appeal Code (2022). We considered whether this caused a significant injustice. We can see the panel had a copy of Mrs Y’s supporting letter which it referred to during the stage two of the hearing. Mrs Y also had the opportunity to verbally put forward her case.
• There is no evidence to show how the admissions authority considered Mrs Y’s request for an alternative hearing date. Paragraph 2.13 says an appeal may go ahead in the appellant’s absence if it is “impractical to offer an alternative date”. There is no evidence to show how the admissions authority considered the practicalities of arranging an alternative date for Mrs Y.
• Furthermore, paragraph 2.16 says that admission authorities must be satisfied that remote appeal hearings can be heard fairly and transparently. They must also ensure the case can be presented fully and with full engagement. Mrs Y explained she was in hospital with limited internet access. The failure to consider her circumstances meant that Mrs Y may not have had the same opportunity as other appellants to fully participate during the hearing.
• There is no evidence of the votes cast by the panel. Paragraph 2.26 of the Code says that panels must ensure appeals are decided by a simple majority of votes. Paragraph 2.29 says the clerk must take an accurate record of the points raised as well as voting and reasons for the decision. The clerk’s notes do not contain any detail about the panel’s votes.
• There is uncertainty whether the correct and current version of the Code was referred to by the clerk and the panel. The decision letter refers to the amendments made in April 2020 during the COVID-19 pandemic. At the time of Mrs Y’s appeal in May 2023, the April 2020 amendments were not in force and had not been since 1 October 2022. However, this caused limited injustice because the new Code still permits the use of remote hearings provided that all parties can fully engage. We have already dealt with this point in bullet three above.
43. We have also received confirmation that the Council did not share D’s on-time application with the Archdiocese. Although the admissions authority is not responsible for this oversight, it is possible this had a bearing on the panel’s considerations as the school has regularly referred to D as being a late applicant.
44. For the reasons explained above, we consider the fault overall has caused Mrs Y an injustice. She has the time and trouble in approaching the LGSCO and the uncertainty of not knowing whether her appeal was properly considered. Although we can see Mrs Y’s supporting letter was considered by the panel, we cannot know what the outcome of her appeal might have been had the faults not happened.
45. The LGSCO cannot second guess the outcome of an appeal or question the merits of a decision to refuse admission. We cannot therefore say Mrs Y’s appeal would have succeeded without fault. The faults identified caused avoidable time, trouble, uncertainty and frustration.

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Agreed action

46. To remedy the injustice caused to Mrs Y and D, the governing body will undertake the following remedial action:
• apologise in writing to Mrs Y in recognition of the injustice caused in the form of avoidable frustration and time and trouble caused by the fault outlined in this decision; and
• arrange a fresh appeal hearing with a different panel and clerk to consider D’s appeal without fault. The governing body will also ensure Mrs Y receives the appeal pack within the timescales outlined in the School Admissions Appeal Code (2022).
47. To ensure the faults identified in the conduct of the appeal do not continue and affect future appellants, the governing body will take the following action within three months of the date of this decision statement:
• remind clerks and panel members that the April 2020 amendments to the Code are no longer in use. The governing body will ensure that panel members hear appeals in accordance with the correct and current version of the Appeals Code; and
• remind appeal panel clerks of the requirement to keep an accurate record of hearings and clear decision reasons, including votes cast by panel members.
48. The School will provide us with evidence it has complied with the above actions.

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Final decision

49. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman