Summary: Mrs X complains about a school admission appeal panel’s decision to refuse her appeal. The appeal panel was at fault as it failed to properly consider all the evidence submitted by Mrs X in support of her appeal. As a result, Mrs X cannot be satisfied that she received a fair appeal. The School has agreed to remedy this injustice by arranging a fresh appeal for Mrs X.

The complaint

1. Mrs X complains about a school admission appeal panel’s decision to refuse her appeal. She considers the appeal panel failed to consider all the relevant information and made mistakes when considering if her daughter was of grammar school ability. Mrs X considers that as a result her appeal was wrongly refused.

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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. When considering complaints 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.
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 have:

• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X;
• Considered the information provided by the School including the papers for the appeal, the clerk’s notes of the appeal hearing and the panel’s decision letter.
• Invited Mrs X and the School to comment on the draft decision. I considered the comments received before reaching a final decision.

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What I found

Law and guidance

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. Grammar schools are permitted to select children for admission on the basis of academic ability. 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.

8. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions. 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

9. Mrs X applied for a place in year 7 at Tunbridge Wells Girls Grammar School for her daughter, Y. Children who wish to attend a grammar school in the area must sit the Kent Test. The School then uses the Kent Test results to decide if children are of the required academic standard to be admitted to the school.
10. Children are required to attain a total of 332 with no individual test score below 107. Y achieved a total score of over 332 but she scored 106 in the English test. This meant that the School did not offer a place to Y.
11. Mrs X appealed against this decision. In support of her appeal, Mrs X submitted a letter from Y’s primary school and a psychologist’s report. The letter from the primary school said she was on track to achieve greater depth within the expected standard in reading and writing at the end of the school year. The primary school also said Y had the ability to strive in a grammar school setting. The psychologist’s report included other test results for Y and set out his assessment of Y’s academic ability. The psychologist said he considered Y was a student for who a grammar school placement was appropriate.
12. The School arranged an appeal panel to consider Mrs X’s appeal. The School’s presenting officer set out the School’s reasons for not offering a place to Y. She also set out the School’s case that the admission of additional pupils would prejudice the education and efficient use of resources at the School. The panel asked questions of the presenting officer including whether there was any extra support for English. The clerk’s notes record the presenting officer said there was no extra support. Mrs X also questioned the presenting officer.
13. Mrs X then presented her case. The clerk’s notes record that Mrs X set out her reasons for why she considered Y was of grammar school ability and why she wanted to attend the school. The presenting officer and panel questioned Mrs X on her case.
14. The clerk’s notes record that the panel considered the admission arrangements were lawful and had been properly applied to Y. They then went on to consider if Y was of grammar school ability. The clerk’s notes record that the panel considered it did not have sufficient evidence that Y was of grammar school ability. One panel member considered there was no mention of greater depth level in anything other than reading. Another panel member noted Y’s reading was on track to achieve greater depth but they were not convinced Y would cope with the demands of the school’s curriculum. The summary of the panel’s decision noted Y was on track to greater depth but they were not convinced they had sufficient evidence to show Y would cope with the pace and level of work at the school. The panel refused Mrs X’s appeal.
15. The clerk notified Mrs X of the panel’s decision. In the letter the clerk said the panel took into account all the points Mrs X had made in her written case and at the hearing and noted Y missed passing the English test by one mark. But they were concerned that Y’s primary school had indicated that Y was on track to achieve age related expectations in reading, writing and maths. The primary school said that her recent reading score had shown a marked improvement and that she was now on track to achieve greater depth level in reading. The panel decided they had seen insufficient compelling evidence to convince them Y would cope in the fast pace and demanding setting of the School.
16. Mrs X complained to the Ombudsman as she considered the panel did not properly consider her appeal. Mrs X’s concerns included:

• The panel failed to properly review or understand Y’s primary school letter and failed to understand she was predicted to achieve greater depth in reading and writing by the end of the school year.
• The presenting officer failed to inform the panel there was a homework club when it asked if there was support for English.
• The panel wrongly raised new concerns about Y’s marked improvement in reading and wrongly considered it to be a negative.
• The panel looked for Y to be achieving greater depth in all subjects but this was not the pass mark for the Kent Test. So, it was assessing Y against a harder criterion than the Kent Test.
• The panel overlooked the psychologist’s report which said she was of grammar school ability.
• The clerk’s notes did not record all the relevant points made at the hearing and omitted strong elements of their case.

Analysis

17. Mrs X has raised a number of concerns about how the panel considered her appeal. But I have focussed on the issues which could show fault and could call into question the panel’s decision.
18. On balance, I consider there is fault in how the panel considered whether there was evidence to show Y was of grammar school ability. Mrs X submitted a psychologist’s report in support of her appeal. The panel has said it considered the report. But there is no reference to the psychologist’s report in the clerk’s notes or in the panel’s decision letter. So, there is no record to show that the panel considered the report, or if it did, what it made of the report. There is no explanation of why it did not consider the test results in the report and the psychologist’s opinion to be sufficient evidence to show Y was of grammar school ability. So, on balance, I consider the panel did not consider all the evidence when reaching its decision.
19. I also consider there is fault in how the panel considered Y’s primary school letter. The clerk’s notes show one panel member considered there was no mention of greater depth level in anything other than reading. This is incorrect as the letter refers to Y being on course for greater depth level in reading and writing. The panel’s decision letter also stated that Y was on track to achieve greater depth in reading but does not refer to Y being predicted to achieve greater depth level in writing. On balance, I consider this shows the panel did not properly consider all the information in the primary school’s letter when reaching its decision that Y was not of grammar school ability.
20. Mrs X considers the panel placed a higher test on Y when determining whether she was of grammar school ability by requiring her to be at greater depth level. It is a matter for the panel to decide what evidence shows a child to be of grammar school ability. So, I do not find it to be at fault in considering whether Y was achieving greater depth as evidence of her academic ability. But the panel should consider and understand all the evidence submitted when deciding if a child is of grammar school ability. I am not satisfied, on balance, that it did when considering Mrs X’s appeal for the reasons set out above.
21. The panel’s failure to consider the psychologist’s report and properly consider the primary school’s letter causes uncertainty to Mrs X. This is because she cannot be sure the panel considered her appeal properly and fairly. She also cannot know if the panel would have made a different decision if it had properly considered the evidence. In order to remedy this injustice, the School should arrange a fresh appeal for Mrs X with a different panel and different clerk. The appeal should be heard on the admission numbers applicable at the time of Mrs X’s original appeal. This will put Mrs X back in the position she would have been in if the fault had not occurred.

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Agreed action

22. That the School will:
1. Send a written apology to Mrs X for the uncertainty caused by the failure of the panel to consider the psychologist’s report and failure to properly consider the primary school’s supporting letter. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Offer a fresh appeal to Mrs X to be heard by a different panel and assisted by a different clerk. The appeal should be heard on the admission numbers applicable at the time of Mrs X’s original appeal.
3. By training or other means, remind panel members and clerks that panels should consider all the submitted evidence and keep a record of that consideration in the clerk’s notes and decision letter.
23. The School should take the action at a) and b) within one month and the action at c) within two months of my final decision. The School should provide us with evidence it has complied with the above actions.

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Final decision

24. I have completed my investigation and I uphold Mrs X’s complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman