Summary: We found no fault on Mrs M’s complaint about the way her admission appeal was dealt with against the School governor’s decision to refuse her daughter a place there. The panel properly considered her appeal.

The complaint

1. Mrs M complains about the way her appeal against the School governors’ decision (as admission authority) to refuse her daughter a place was dealt with and in particular:
1. the head teacher’s attendance at the hearing which she considers unfair due to his involvement in the decision to refuse a place;
2. the appeal panel failing to take account of the impact of the refusal on them as a Service family; and
3. the appeal panel failing to take account of the Armed Forces Covenant Duty and associated statutory guidance.
2. As a result, she has great problems getting her children to and from two different schools because of their distance which causes her a great deal of stress as she does this without any support as her husband is in the armed forces, posted abroad for long periods.

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The Ombudsman’s role and powers

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)
4. 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 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

School admission and appeals: co-ordinated admission arrangements

6. Statutory guidance about school admissions and appeals can be found in The School Admissions Code and School Admission Appeals Code (the Code). Both are published by the Department for Education. 
7. All schools must have a set of admission arrangements containing oversubscription criteria. The school’s admission authority uses these to decide which children receive an offer of a place if there are more applications than places available. The school’s admission authority sets the admission arrangements.  
8. A school’s admission arrangements must also contain a Published Admission Number (PAN). This is the number of places the school will offer at each point of entry. The point of entry is when the school normally admits children.

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School Admission Appeals Code (October 2022)

9. 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 and in accordance with the specified timetable. (paragraph 2.9)
10. The admission authority must provide a presenting officer to appear either in person or remotely (by video or telephone conference) to present the decision not to admit the child and to answer detailed questions about the case being heard and about the school. If no presenting officer attends on the day of the appeal, the panel can decide to resolve the case by using the evidence submitted by the admission authority if it is satisfied that to do so will not disadvantage the appellant. (paragraph 2.12)
11. The panel must ensure the decision sent following the hearing is easily comprehensible so the parties can understand the basis of the decision. The decision letter must contain a summary of relevant factors raised by the parties and considered by the panel. It must give clear reasons for the panel’s decision, including how and why any issues of fact or law were decided by the panel during the hearing. (paragraph 2.28)
12. 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 2.29)
13. Under this Code, panels must follow the two-stage decision making process for all appeals except for infant class size appeals (paragraph 3.1 to 3.10):

First Stage: examining the decision to refuse admission:

14. The panel must consider the following for each child subject to an appeal:
1. whether the admission arrangements complied with the mandatory requirements of the School Admissions Code and Part 3 of the School Standards and Framework Act 1998; and
2. whether the admission arrangements were correctly and impartially applied in the case in question.
15. The panel must uphold the appeal at first stage where:
1. it finds the admission arrangements did not comply with admissions law or had not been correctly and impartially applied, and the child would have been offered a place if the arrangements had complied, or had been correctly and impartially applied; or
2. it finds the admission of additional children would not prejudice the provision of efficient education or efficient use of resources. (paragraph 3.5)
16. The panel must go the second stage where: it finds the admission arrangements complied with admissions law and that they were correctly and impartially applied to the child; or finds the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that if they had, and been correctly and impartially applied, the child would not have been offered a place; and it finds the admission of further children would prejudice the provision of efficient education or efficient use of resources. (paragraph 3.7)

Second Stage: balancing the arguments:

17. 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 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. If the panel considers the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
18. It must consider the impact on the school of admitting further children.

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Statutory Guidance on the Armed Forces Covenant Duty (November 2022)

19. The Armed Forces Act 2006 (as amended) placed a legal duty (the Covenant Duty) on certain specified public persons and bodies to have due regard to the principles of the Armed Forces Covenant when exercising certain statutory functions in various fields including education. The Covenant Duty came into effect on 22 November 2022.
20. The governing bodies of ‘maintained schools’ are one of the bodies.
21. The duty requires specified bodies to think about, and place an appropriate amount of weight, on the principles in the Covenant when they consider all the factors relevant to how they carry out relevant functions.(paragraph 0.14)
22. The Covenant is a promise that families of the Armed Forces should be treated fairly. (paragraph 1.1)
23. The Covenant Duty is a legal obligation a specified body may have due regard to which includes: the unique obligations of, and sacrifices made by, the armed forces; the principle it is desirable to remove disadvantages arising for Service people from membership, or former membership, of the Armed Forces; the principle that special provision for Service people may be justified by the effects on such people of membership, or former membership, of the Armed Forces. (paragraph 1.4)
24. Service children are normally educated in state funded schools, but they may face the following education related disadvantages:

• An interrupted education if a Service family is required by the Armed Forces to relocate;
• A disrupted social experience if a Service family is required by the Armed Forces to relocate; and
• Mental wellbeing can be affected by a disrupted social experience due to a relocation where they are not placed in the same new school as their siblings, for example. (paragraph 3.1)

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How I considered this complaint

25. I considered all the information Mrs M provided, the notes I made of our telephone conversation, and the School’s response to my enquiries. I sent a copy of my draft decision to Mrs M and the School.

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What I found

26. Mrs M and her husband, who is in the Armed Forces, moved to their current home in early 2023. The move was not due to a relocation order by the Armed Forces.
27. They applied for their daughter N to go to Year 5 at the School in September where their other two children would start. The School governors, acting as admission authority, refused N a place. Mrs M unsuccessfully appealed this decision to an independent appeal panel. The panel rejected her appeal.
28. Mrs M is concerned about how the appeal was dealt with:

• She is unhappy the head teacher, who is a School governor, was also the presenting officer at the hearing; and
• She is concerned the panel failed to take account of her husband’s job, as he is on deployment for up to nine months at a time. Nor does she believe it took account of the logistical problems she faces. This is because she has to drop and collect N from her current school, which is about 12 miles away, as well as dropping off and collecting the other two daughters from their current school. There are no friends or relatives locally who can help. This is very stressful for them all as Mrs M also works. There is also a financial strain because of the cost of the fuel and childcare costs at the start and end of each school day.

29. The panel rejected her appeal stating while her nearest school was full, there were two other local schools with places, and she might be eligible for transport assistance with getting N to them. Mrs M disputed they were eligible. The School offered to help with slightly later arrival times and slightly earlier collection times for her other two children. The panel was satisfied admitting N would prejudice the provision of efficient education and efficient use of resources. It was also satisfied the PAN was exceeded.
30. The School confirmed Mrs M applied for a place again when the new academic school year started. This too was refused and she again, unsuccessfully appealed the decision to an appeal panel.

My findings

31. I make the following findings on this complaint:
1. It was not fault for the head teacher to act as the School’s presenting officer during the hearing. The law does not prevent a head teacher from attending the hearing as presenting officer.
2. Mrs M did not mention her husband working in the Armed Forces when she applied for a place for N at the School. Nor did she say they had just moved due to a relocation order. I have seen a copy of this application.
3. Mrs M did not raise the issue of the Covenant Duty in her appeal submissions either although explained about her husband being in the Armed Forces. Again, there is nothing in the submissions which said the move was due to a relocation order. I have seen a copy of her appeal submissions.
4. The Covenant Duty applied to the School’s governing body. What the panel had to do was consider whether the governing body considered, or needed to have considered, the Covenant Duty when deciding her admission application. While there is no evidence of the panel doing this, I note there was nothing at the time the School governors’ decided the admission application which would have alerted them to this as a possible consideration anyway. In the circumstances, I am not satisfied this justified a finding of fault causing an injustice.
5. Having noted the above, I am satisfied:

• the panel considered the first stage of the hearing correctly. The minutes record the panel satisfied the admission arrangements complied with the Code and the law, and had been correctly and impartially applied to N. The panel also considered the prejudice which already existed and the additional prejudice which would be caused. The minutes noted Mrs M had not raised any issues with the arrangements, their application, or any mistakes in the administration of her admission application.
• the panel, at stage 2 of the hearing, properly considered Mrs M’s submissions about her husband being in the Armed Forces, the pressure she was under logistically to get all children to different schools at some distance apart, the lack of support she had, and the financial impact this caused her. Although Mrs M could not attend this hearing, the panel heard from the School about how it could help with the logistical problems she faced and about alternative places available. The School also explained about the risk of overcrowding. The minutes show the panel accepted the situation was not ideal for Mrs M.
• the panel weighed Mrs M’s submissions against the prejudice that would be caused to the School by N’s admission.

32. I note the Independent Appeals Service the School used accepted while the hearing could have documented the consideration of the Armed Forces element further in the minutes of the hearing and the decision letter, it was confident this was properly considered. It has given feedback to the clerk and panel members to ensure a full discussion takes place in future appeals which is recorded. It would share this information with the pool of clerks and panel members for training purposes in the future.
33. The School also noted Mrs M had a second appeal when she re-applied for N to join once the new school year had started in September. This too was unsuccessful. She attended and raised the issue of the impact the decision had on them as a Service family. Evidence provided by the Armed Forces in support of the application also raised the issue of the Covenant Duty. Although not the subject of this investigation, I note neither the minutes of the meeting nor the decision letter addressed the issue of the Covenant Duty raised.

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Final decision

34. I found no fault on Mrs M’s complaint against the School.

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Investigator's decision on behalf of the Ombudsman