Summary: Mr D complained about the appeal panel’s decision not to admit his son to his preferred secondary school. We find some fault in how the panel considered Mr D’s appeal. As a result, Mr D cannot be satisfied the appeal process was carried out fairly. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr D complained about the appeal panel’s decision not to admit his son (E) to his preferred secondary school. He says the panel failed to properly consider supporting information from E’s headteacher. Mr D says the matter has caused distress and upset.

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The Ombudsman’s role and powers

2. 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)
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. I considered information from Mr D and the Council.
5. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

6. 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.
7. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.
8. Appeals must be held in private and conducted in the presence of all panel members and parties. The admission authority must provide a presenting officer at the hearing to present the decision not to admit the child and to answer questions about the school’s case.
9. Panels must follow a two-stage decision making process. 
10. Stage 1: 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 if 
• The admission of additional children would prejudice the provision of efficient education or the efficient use of resources.  

11. 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 two of the process.
12. Stage 2: balancing the arguments. The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted.
13. Grammar schools are permitted to select children for admission on the basis of academic ability. Some admission authorities for grammar schools offer places to those who score highest, others set a pass mark and then apply oversubscription criteria to those applicants that reach the required standard.
14. In cases where an appeal panel is asked to consider an appeal for a grammar school, the appellant believes the child did not perform their best on the day of the entrance test, and a local review panel process has not been applied, the panel must only uphold the appeal if it is satisfied:

• There is evidence to demonstrate the child is of the required academic standard; and
• Where applicable, the appellant’s arguments outweigh the admission authority’s case admission of additional children would cause prejudice.

15. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
16. The appeal panel must write to the appellant, the admission authority and the council with its decision and the reasons for it. The decision letter must be easy to understand and must contain a summary of relevant factors raised by parties and considered by the panel. It must also provide clear reasons for the panel’s decision.

What happened

17. Mr D applied for a year 7 place for E to attend his preferred secondary grammar school (School Y). Children who wish to attend a grammar school in Kent must sit a test. They receive three standardised scores – one for English, one for maths and one for reasoning. In the relevant year, to pass the test, a total score of 332 or more was required, with a score of at least 108 in each of the three papers.
18. E achieved a total score of 333, but his individual score in English was less than the target of 108.
19. School Y refused Mr D’s application. It said E had not attained the standard required for admission to a grammar school. It also said it was oversubscribed and could not take additional pupils.
20. Mr D appealed. He provided letters of support from the headteacher of E’s primary school.
21. The Council arranged an appeal panel to consider the case. School Y’s written case was the lack of circulation in the classrooms meant exceeding the published admission number was difficult. The published admission number is the number of pupils in each year group that the admission authority has agreed will be admitted. It said the space in the communal areas was limited and the admission of further pupils would prejudice the efficient education of existing pupils.
22. At the first stage of the appeal, the headteacher from School Y said it would accept 20 more pupils. The panel took questions from Mr D and noted School Y’s written case.
23. Mr D then presented his case. He said E had a headache on the day of the test. He also said E is talented both academically and in sports and English is not his first language. He said a grammar school would allow E to reach his full academic potential.
24. The panel noted E is multi-lingual and he moved schools to achieve a more challenging education. However, it decided there was not sufficient evidence to conclude a grammar school was an appropriate placement for him.
25. The Council sent its decision letter to Mr D. It said the panel was satisfied School Y’s admissions arrangements were lawful and in accordance with legislation. It said the headteacher’s letter of support from E’s primary school stated at the end of year 6 he would be average in reading and writing and above average in maths. It said the panel considered E's multi-lingual skills, his primary school’s academic assessments and his ability to excel in sports. However, the panel did not consider E could cope with the fast pace of a grammar school environment. The panel found the prejudice to School Y outweighed the prejudice to E.

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Analysis

26. The Ombudsman’s role is to consider whether the appeal panel followed the School Admission Appeals Code.
27. The clerk’s stage one notes are difficult to follow. It is not clear how the panel decided the admission arrangements were lawful and properly applied and the reasons why it was satisfied. This is fault. The clerk’s notes do not have to reflect word for word what took place, but it should be possible to tell how the panel arrived at its decision. This did not happen in this case.
28. The clerk’s stage two notes are very brief on the decision making and how the panel decided School Y was not an appropriate placement for E. The decision letter has much more detail on the panel’s decision making, but this is not reflected the clerk’s notes.
29. The decision letter also says the headteacher’s letter of support stated at the end of year 6 E would be average in reading and writing and above average in maths. This is not what the headteacher said. The headteacher instead said E would be just above the attainment level for all subjects and significantly above in maths. This suggests the panel may have misunderstood the information from E’s primary school.
30. The faults identified call into question the panel’s decision. This has caused Mr D a significant injustice as he cannot be certain his appeal was properly considered.

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Agreed action

31. To address the injustice caused by fault, by 13 September 2023 the Council has agreed to:

• Apologise to Mr D.
• Arrange for Mr D’s appeal to be re-heard with a new panel and clerk. The appeal should be considered based on the admission figures at the time Mr D made his first appeal. This is to ensure Mr D is put back in the position he would have been in had the appeal been properly considered.

32. By 11 October 2023 the Council will:

• Remind clerks of the need to record robust and clear reasons for the panel’s decision at both stages of the school admission appeals process.

33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. There was fault by the Council, which caused Mr D an injustice. The Council has accepted my recommendations and therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman