Summary: Ms X complained about the consideration of her appeals for a place for her daughter at their preferred schools. She considered she did not have a fair hearing and that as a result her daughter was not awarded a place at either of her preferred schools. There was fault by the Council but it did not cause injustice.

The complaint

1. I refer to the complainant as Ms X. She complained about the consideration of her appeals for a place for her daughter, Y, at their preferred schools. In the first appeal she considered the panel did not properly consider her case and Y’s personal circumstances because the presenting officer gave misleading information and the time available was therefore curtailed. Further she considers there was discrimination based on gender. At the second appeal she considered the hearing was disrupted and prejudiced because of the previous hearing. Overall, she considered she did not have a fair hearing at either hearing and that as a result Y was not awarded a place at either of their preferred schools.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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 significant injustice, or that could cause injustice to others in the future, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I considered the complaint and documents provided by Ms X and spoke to her I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms X and the Council and considered their comments.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

The appeal process

7. The school admissions appeals code (the code) says the admission authority, or the clerk acting on behalf of the admission authority, must appoint an independent appeal panel that is comprised of a chair and at least two other panel members. A panel must consist of the following persons with at least one from each category:
• a) lay people (someone without personal experience in the management of any school or provision of education in any school (except as a school governor or in another voluntary capacity));
• b) people who have experience in education, who are acquainted with educational conditions in the local authority area, or who are parents of registered pupils at school.
8. The code sets out a two stage procedure for admissions appeal panels to follow. At the first stage the panel must consider the following matters in relation to each child that is the subject of an appeal:
• a) whether the admission arrangements (including the area’s co-ordinated admission arrangements) complied with the mandatory requirements of the School Admissions Code and Part 3 of the School Standards and Framework Act 1998; and
• b) whether the admission arrangements were correctly and impartially applied in the case in question.
9. The panel must then decide whether the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.
10. The panel must proceed to the second stage where:
• a) it finds that the admission arrangements did comply with admissions law and that they were correctly and impartially applied to the child; or
• b) it finds that the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that, if they had complied and had been correctly and impartially applied, the child would not have been offered a place.
11. At the second stage the panel must balance the prejudice to the school against the appellant’s case for the child to be admitted to the school. It must consider the appellant’s reasons for expressing a preference for the school, including what that school can offer the child that the allocated or other schools cannot. If the panel considers that the appellant’s case outweighs the prejudice to the school it must uphold the appeal.
12. When considering prejudice the panel must take into account the school’s published admission number. However, the admission authority must be able to demonstrate prejudice over and above the fact that the published admission number has already been reached. The panel must not reassess the capacity of the school but must consider the impact on the school of admitting additional children.

What happened

13. Ms X applied for a place for her daughter, Y, at School A. It was their first choice. They live in the catchment area for School A. The Council did not allocate Y a place at School A as all places had been allocated to children who were higher placed in accordance with the published admission arrangements. Nor did the Council allocate a place at the two other schools Ms X expressed a preference for. A place was allocated at School C. School C is a single sex school and Ms X and Y do not want her to attend a single sex school.
14. Ms X appealed unsuccessfully for a place for School A and School B, one of her other preferred schools.

Analysis

Appeal for School A

15. Ms X complained the presenting officer had incorrectly informed the panel about the number of children from Y’s junior school who had been allocated a place at School C. The presenting officer realised after the hearing that she was incorrect and informed the panel of the correct number before they decided Ms X’s appeal. Ms X’s point here was that the discussion with the presenting officer was prolonged and meant she had insufficient time to make her case. She was also disconcerted by the incorrect information and considered that her appeal was adversely affected by the debate on the point.
16. I have considered the clerk’s notes made of the appeal hearing and the subsequent deliberations by the panel. These show that Ms X made her statement to the panel and then the presenting officer provided the incorrect information about the numbers of children going to the allocated school. There were some comments and questions from the panel members and from the presenting officer. The notes end with a final comment from Ms X that she had said everything. The notes of the panel’s consideration of the case show that the number of children going to the allocated school from the junior school was corrected.
17. It was fault the wrong number was given to the panel. But this error did not affect the outcome. It was corrected before the panel made their decision. I understand Mrs X’s comments that this was disconcerting for her, and she felt it impacted on her presentation of her case and the time available to her. But the notes do not show the time was limited or that she was asking for more time to make her case. In saying that I do understand the impact it will have had on her and how it left her feeling about the process.
18. Ms X considered the Council had not made an adequate case to show the school was full and prejudice to education would be caused if more children were admitted. She said this point was made during the first part of the hearing where the question of prejudice was considered. The notes of the panel’s consideration of the hearing show they considered carefully whether the case for prejudice had been made out. It shows they addressed themselves to the arguments that had been made about the numbers of children at the school but decided the case by the local authority was made.
19. Overall, there was no fault in how the panel considered Ms X’s appeal. Although there was fault at the hearing in the information presented about the numbers of children moving to the allocated school it did not affect the panel’s decision making.

Appeal for School B

20. This appeal was held after the appeal for school A. Partly because of the error I refer to above and because of her wider concerns, Ms X did not want the presenting officer to be present at the hearing. The presenting officer agreed not to attend. On the day the panel were concerned that the correct arrangements were being followed. The presenting officer briefly attended and then left when the hearing took place. There was no fault here. The code has provisions relating to the role of the presenting officer and there was no fault in the panel satisfying themselves that the code was being followed.
21. Ms X considered it was wrong the panel had a copy of her complaint. This related to Ms X’s request that the presenting officer should not be present. Her email requesting this was shared with the panel. This was not fault. As I say above the panel had to be satisfied that the proper process was followed and part of that consideration was understanding Ms X’s request.
22. Ms X made the point that because members of the appeal panel routinely sit on other appeal panels they cannot be considered to be independent of the Council. The Council commented that the code does not specifically address this point. Its panel members meet the requirements of the code and are appropriately trained. There is no requirement that panel members do not to sit on multiple appeals. Indeed, it would be impractical for panel members not to sit on multiple appeals. There was no fault here.

Allegation of discrimination

23. Ms X considered there was discrimination on the basis of gender. This is because she believed that all the appeals (for school A) made by boys from her area were successful but all those by girls were unsuccessful.
24. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
25. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
26. The protected characteristics referred to in the Act includes sex and sexual orientation.
27. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
28. Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.
29. I do not have from the Council the figures for the outcome of appeals broken down by area. Ms X says that of all the appeals by boys from her area for school A and B were successful, but none by girls. I do not have reason to doubt what Ms X says. But this is not significant for my assessment of the complaint. The Council and the panel members commented on this point. In summary the response was that all appeals were considered on their own merits. The school where boys had been allocated a place was a long way away and that was a material factor for the panel members when deciding whether those individual appeals should be allowed.
30. As I say above, we cannot decide whether the Council, or the appeal panels, breached the Equality Act, we are considering whether the panels were conducted properly with due regard to the relevant guidance. I consider they were. The panel members have explained why they allowed some appeals. The overriding factor for those allowed was the distance to the allocated school for those pupils. This was something the panel was entitled to have regard to. I cannot, therefore, say there was fault in the panel’s consideration.

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Final decision

31. There was fault by the Council but it did not cause injustice.

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Investigator's decision on behalf of the Ombudsman