Summary: There was no fault in how the Council considered a request for reasonable adjustments for Mr X’s child when they sat the grammar test exam. There was also no fault in how the independent appeal panel considered Mr X’s appeal of the decision not to award his child a school place.

The complaint

1. Mr X complained the Council failed to make reasonable adjustments for his child’s disability when they sat the 11+ (Kent Test) and as a result his child did not pass the test by several marks.
2. Mr X also complained the independent appeal panel failed to properly consider this issue when it decided not to allow his appeal.
3. As a result of these faults, Mr X said his child had been disadvantaged and it had caused them distress and uncertainty regarding their education.

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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 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)
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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on a draft decision. I considered any comments received before making a final decision.

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What I found

Law, guidance and policies

The Kent Test for grammar schools

8. Kent County Council administers the Kent Test. This test is designed to assess whether the grammar schools in Kent are a suitable option for the children who apply.
9. Whether a child passes this test is a factor in deciding whether they can attend a grammar school, alongside the admissions criteria set by the individual school.
10. Kent County Council is responsible for considering reasonable adjustment requests for pupils sitting the test, also referred to as ‘special access arrangements’.

Reasonable adjustments

11. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
12. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
13. The Ombudsman cannot decide if an organisation has breached the Equality Act 2010 as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.
14. Organisations will often be able to show they have properly taken account of the Equality Act 2010 if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

Appeals for grammar schools

15. Statutory guidance about school admissions and appeals is in the School Admissions Code and the School Admission Appeals Code, published by the Department of Education.
16. Parents and carers have the right to appeal an admission authority’s decision not to offer a child a school place. An independent appeal panel decides the appeal. The clerk to the appeal panel must ensure an accurate record is taken of the points raised at the hearing, including the proceedings, attendance, voting and reasons for decisions.
17. Designated 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.
18. Panels may be asked to consider a grammar school appeal where the appellant believes the child did not perform at their best on the day of the test. The panel must only uphold the appeal if it is satisfied:
• that there is evidence to demonstrate that 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.
19. 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. 

What happened

20. Mr X’s child, Z, wanted to attend a specific grammar school. This grammar school would only admit pupils who passed the Kent Test.
21. Z’s primary school registered Z to sit the Kent Test. As part of the application, the primary school asked that Z be provided with extra time to sit the test due to their disability. The primary school provided evidence including a copy of Z’s diagnosis report.
22. The Council holds special arrangement panels to consider requests for reasonable adjustments for the Kent Test. These panels are formed of staff from its Special Educational Needs and Disabilities (SEND) team and Special Educational Needs Coordinators (SENCOs) from grammar schools in Kent.
23. The special arrangement panel considered Z’s request for reasonable adjustments and decided it was not reasonable to make them. They noted that the diagnostic report did not recommend Z would need extra time in exams. They also noted that Z was exceeding in one of the subject areas affected by their disability. The panel decided the evidence provided did not correlate with the reasonable adjustments requested.
24. The Council told us it does not review its special arrangement panel decisions. However, it said parents can go on to appeal any decision not to offer a school place through the independent appeal panel process.
25. Z did not have any reasonable adjustments made and did not pass the Kent Test. Z achieved the score required in maths but not in the other areas. As Z did not meet the school’s admissions criteria, Z was not offered a place at their preferred grammar school.
26. Mr X appealed this decision to the independent appeal panel. He said Z most likely would have passed the test if they had been given extra time, as they were only a few marks short. Mr X provided evidence showing Z’s academic attainment and outlined why he felt Z met the academic requirements to attend the grammar school.
27. The independent appeal panel considered all of Mr X’s documentary evidence and he also attended the panel hearing and gave evidence verbally.
28. At stage one the panel concluded:
• It was satisfied the school’s admissions arrangements complied with the School Admissions Code; and
• It was satisfied the school’s admissions policy had been applied correctly in this case.
29. At stage two the panel balanced the arguments. The panel noted that for grammar school appeals, the only relevant consideration is whether the pupil is of grammar school ability. The panel said:
• It had considered Mr X’s position that Z would have passed the Kent Test if they had been given more time;
• One panel member said that as Z’s primary school had given Z extra time in tests due to their disability and the academic evidence suggested Z would cope at the grammar school, consideration should be given to offering them a place; and
• The other two panel members disagreed and said the school’s evidence did not show the expected attainment, so they noted that while Z had extra time in tests at primary school, they were satisfied Z’s scores on the Kent Test were, “a true reflection of ability”.
30. As a majority of the panel decided Z did not meet the required academic standard, the panel decided the Admission Authority should not be required to offer Z a place at the grammar school. The Council sent a letter to Mr X explaining the reasons for its decision and signposted him to the Ombudsman if he remained dissatisfied.
31. Mr X complained to the Ombudsman. He said:
• the panel had overlooked the impact of the COVID-19 pandemic on Z’s academic outcomes in 2020 and 2021;
• the Council wrongly declined to make reasonable adjustments for Z during the Kent Test; and
• the panel said Z had not shown expected attainment but this was incorrect as Z had shown high academic achievement in maths.
32. As part of our investigation, we asked the Council how many requests it received for reasonable adjustments as part of the Kent Test in the academic year that Z sat the test.
33. The Council responded that it had received 1,296 requests for special arrangements for the Kent Test in that year and of those, 119 pupils did not have any concessions agreed.

My findings

34. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with it.
35. The Council considered the request for reasonable adjustments for Z as part of Z’s application to sit the Kent Test. The Council decided it would not be reasonable to make the requested adjustments. It considered the request at a specialist panel, considered the evidence, recorded the reasons for its decision and Mr X was given the opportunity to appeal the decision not to award Z a school place based on their test score, through the independent appeal panel process. The Council took account of its duties under the Equality Act 2010 and was not at fault.
36. The independent appeal panel decided not to award Z a place at the grammar school. As this was a grammar school appeal, the key consideration was whether Z met the academic standard. The panel considered Mr X’s position and supporting evidence and did so over two stages. Having considered all the evidence, it decided at a vote of two to one that Z would not meet the academic standard required. The panel made its decision in line with the School Admission Appeals Code and therefore we cannot criticise it. It was not at fault.
37. Mr X said the panel failed to consider the impact of the COVID-19 pandemic on Z’s primary school attainment. I do not consider this to be evidence of fault, as the pandemic had an impact on all pupils in that year group and so would not be of specific relevance to Mr X’s appeal.
38. Mr X also said the panel wrongly said Z’s primary school evidence did not show expected attainment but this was not correct due to their high attainment in maths. I also do not consider this to be evidence of fault. Z passed the maths section of the Kent Test, so the panel would not have been primarily focussed on this subject area. The other subject areas in which Z did not pass the Kent Test would have been more relevant to the Panel.

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Decision

39. I find no fault.

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Investigator's decision on behalf of the Ombudsman