Summary: Ms X complained about the decision of the Council’s Independent Appeal Panel to refuse her child a place at a grammar school. There was no fault in the way the Panel considered the appeal. The Ombudsman cannot question decisions made without fault.

The complaint

1. Ms X complained the Independent Appeal Panel (“the Panel”) did not properly consider her appeal for a grammar school place for her son, Y.
2. She says she was not given the opportunity to properly present her case and the Panel members were rude and judgemental.
3. This caused significant distress on the day and the outcome has affected Y’s well-being and educational development.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complaint disagrees with it. We must consider if there was fault in the way the decision was reached. 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)
5. 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

6. I discussed the complaint with Ms X.
7. I considered Ms X’s complaint and documentation that was considered by the Panel. I also considered the clerk’s notes of the appeal hearing and the decision letter.
8. Ms X and the Council had the opportunity to consider my draft decision. I considered all comments before reaching a final decision.

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What I found

Relevant law and guidance

School Admission Appeals

9. 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. 
10. Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.  
11. 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. 
12. 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. 
13. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions. 
14. The admission authority must 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. 
15. Appeal panels must allow appellants the opportunity to make oral representations.
16. 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. 
17. The clerk to the panel must write to the appellant, the admission authority and the council with the panel’s decision and reasons. 

Secondary Admissions

18. Panels must follow a two-stage decision making process. 
19. 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.  

20. 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. 
21. 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.  

Grammar school appeals

22. For grammar school appeals, government guidance says “An appeal panel may be asked to consider an appeal where the appellant believes that the child did not perform at their best on the day of the entrance test. In such cases […] the panel must only uphold the appeal if it is satisfied:

• that there is evidence to demonstrate the child is of the required academic standards, for example, school reports giving Year 5/Year 6 SAT results or a letter of support from their current or previous school clearly indicating why the child is considered to be of grammar school ability; and
• where applicable, that the appellant’s arguments outweigh the admission authority’s case that admission of additional children would cause prejudice. (School Admission Appeals Code 2012 paragraph 3.13)

What happened

23. Ms X’s son, Y sat an entrance exam for a local grammar school. He narrowly failed to reach the pass mark and he was not offered a place because:

• Y was not considered to be of grammar standard; and
• admitting Y would be prejudicial to the school and its pupils.

24. Ms X appealed against this decision. She felt Y should be offered a place due to his individual circumstances. This was because:

• he did not perform to the best of his ability on the day of the exam;
• he was recently diagnosed with special educational needs (SEN); and
• there were safeguarding reasons why the local comprehensive school was detrimental to his safety and well-being and he had a beneficial support network at the grammar school.

25. In support of her appeal, she provided the Panel with:

• confirmation that Y had passed the entrance examination for a fee-paying grammar school;
• confirmation of Y’s diagnoses;
• a letter of support from Y’s schools;
• a letter from the police about the safeguarding concerns; and
• a detailed letter setting out her reasons why she believed the grammar school place was the best option for Y.

26. The appeal was held via Zoom.
27. Ms X believes the appeal was unfair because:

• she was unable to join the Zoom meeting on time at stage two due to technical issues. Although the appeal took place later that afternoon, Ms X says she was so stressed and upset at the thought the appeal was going to heard in her absence that she feels she was not able to present the case as well as she wanted to;
• a Panel member rolled his eyes when she explained Y’s family circumstances;
• the Panel failed to properly consider the safeguarding issues she had raised;
• the Panel failed to accept Y was of grammar school standard when she presented evidence that he was;
• a Panel member asked her if she thought Y could cope with the rigors of grammar school when he had special educational needs; and
• the Panel failed to take account of the fact Y had a recent SEN diagnosis that was not taken account of at the time places were allocated.

28. Ms X registered her concerns about the appeal hearing before she received the decision letter. Upon receiving the decision letter, she brought her complaint to the Ombudsman.

Analysis

29. The Ombudsman does not question the merits of decisions properly taken. The Panel was entitled to come to its own judgement about the evidence it was asked to consider. Whist Ms X feels she had an overwhelmingly strong case that Y’s individual circumstances outweighed the school’s position that admitting Y would be prejudicial, this does not necessarily mean there was fault.
30. When assessing the second stage of the appeal, I have carefully considered the clerk’s notes from both the appeal hearing and the Panel’s private decision making. They are detailed and thorough and reflect what Ms X told me over the phone and what she had provided in writing. They demonstrate the Panel was aware of the reasons Ms Y wanted Y to attend the grammar school. It considered both Ms X’s and the school’s arguments.
31. It is clear Ms X was understandably upset when she was unable to log on at the time of her appointment. However, she was able to contact the Council by phone and the Panel clerk arranged for her appeal to be heard soon afterwards. The minutes record Ms X’s obvious distress at the start of the hearing. They also record the chair of the Panel taking time to calm her and checking Ms X was happy to continue. Ms X confirmed she was.
32. Ms X says this bad start prevented her from presenting the case as well as she wanted to. However, I am satisfied the panel was fully alive to all of the issues Ms X felt were significant to her appeal from the written information she presented.
33. Ms X was particularly troubled by the conduct of the Panel member who rolled his eyes. Both the Panel member and chair of the Panel deny this happened. There is no recording of the appeal hearing, and there is no requirement for one to be made.
34. In the absence of any independent evidence, it is not possible for me to make a finding on what actually happened, even on a balance of probabilities.
35. I do not criticise the question about Y’s ability to cope at grammar school. In grammar school appeals, students must meet a certain academic standard. The Panel was entitled to ask for more information about a relevant issue.
36. Nor do I find fault with any other aspect of the appeal or the Panel’s decision. It considered Y’s individual circumstances, and was entitled to reach the decision it did. There was no fault.

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Final decision

37. I have completed my investigation. There was no fault with how her appeal was considered by the Independent Appeals Panel.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman