The Ombudsman's final decision
Summary: We found fault by the School on Miss J’s complaint about the appeal panel failing to properly consider her appeal against the admission authority’s decision to refuse her daughter a place at the preferred school. Information was missing from the appeal papers, there was a failure to show when the presenting officer physically entered and left the hearing she attended virtually, and there was no record of reasons made for its decision. There was an avoidable delay sending the decision letter. The agreed action remedies the injustice caused.
The complaint
Miss J complains the appeal panel failed to properly consider her appeal against Pudsey Grammar School governors’ decision to refuse her daughter a place in Year 7 in September 2022; as a result, this caused her and her family a great deal of stress and upset as her daughter is not with her friends at her preferred school.
The Ombudsman’s role and powers
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) 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended) An admission appeal panel is a statutory tribunal but, it is also within our jurisdiction. (Local Government Act 1974, section 25). When considering a complaint after an appeal has been rejected, there may be parts which relate to what happened at the appeal and parts which relate to the original admission process (for example, something about the way a decision was taken by the admissions authority which the appeal panel did not consider). Governing bodies which act as admissions authorities are within jurisdiction, as are appeal panels considering appeals against decisions of governing bodies.
The School Admissions Appeals Code (February 2012) Under the Code, 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. This includes details of how the admission arrangements and co-ordinated admission scheme apply to the appellant’s application, the reasons for the decision to refuse admission, and an explanation as to how the admission of an additional child would cause prejudice to the provision of efficient education or efficient use of resources. (paragraph 2.9) Appeal panels must allow appellants the chance to appear in person and make oral representations. They may be represented, or accompanied, by a friend. (paragraph 2.12) One party must not be left alone with the panel in the absence of the other. Where one party is unable to, or has failed to attend, the clerk must remain with the panel and remaining party at all times. (paragraph 2.15) Appeal panels must follow the 2-stage decision making process for this type of appeal. (paragraph 3.1) First stage: the panel must consider: Whether the admission arrangements complied with the law; and Whether the admission arrangements were correctly and impartially applied in each case. (paragraph 3.2) The panel must then decide whether the admission of further children would prejudice the provision of efficient education or the efficient use of resources. (paragraph 3.3) A panel must uphold the appeal at first stage where it finds the admission arrangements did not comply with admission law, or were not correctly and impartially applied, and the child would have been offered a place or; the admission of additional children would not prejudice the provision of efficient education or efficient use of resources. (paragraph 3.5) A panel must go to the second stage where: it finds the admission arrangements complied with the law, were correctly and impartially applied, or where they were not, the child would not have been offered a place anyway and admitting further children would prejudice the provision of efficient education or efficient use of resources.
Second Stage: The panel must balance the prejudice to the school against the appellant’s case for admission of their child. 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. Where the panel considers the appellant’s case outweighs the prejudice to the school, it must uphold the appeal. (paragraph 3.8) 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 2.26) The panel must communicate the decision of each appeal, including the reasons for that decision, in writing to the appellant, the admission authority, and the local authority. The decision letter must be sent to the parties as soon as possible after the hearing but, not later than five school days, unless there is good reason. (paragraph 2.24) The decision letter must give clear reasons for the panel’s decision including how, and why, any issues of fact or law were decided during the hearing. (paragraph 2.25) Appellants may complain about maladministration on the part of the appeal panel to us about a maintained school. Admission authorities must inform parents about the arrangements for making a complaint. (paragraph 5.4)
Pudsey Grammar School The local authority (the Council) makes the offer of a school place for year 7 on behalf of the School’s governing body, which is the admissions authority. The published admission number for year 7 was usually 215 but for this admission round only, it increased it to 225.
Where there are more applications than places, the admissions authority offers places according to its admissions policy. This places applications in order of priority. Priority 1 is the highest and includes children in public care for example. Priority 4 is the lowest and is for ‘Any other children’.
Where it has more applications meeting one of the priorities than places, it offers places in order of distance from the school.
How I considered this complaint
I considered all the information Miss J sent, the notes I made of our telephone conversation, the School’s response to my enquiries, and information received from the Council. I sent a copy of my draft decision to Miss J, the School, and the Council. I considered their responses.
What I found
Miss J applied for her daughter K, to attend year 7 at the School from September 2022. The governing body refused her a place because the School was oversubscribed. The last child offered a place came within Priority 4. The Council said K’s priority was the same as this child. Both were based on distance from home to school with the one closer to the School getting the place.
Miss J appealed the decision to an independent appeal panel. The panel rejected her appeal. She is not happy with the way her appeal was dealt with. She says during the hearing, members of the panel were laughing and joking with each other. This is denied by panel members and the clerk. K remains out of school.
The evidence shows Miss J’s grounds for appealing were: the unsafe route to and from the allocated school; the School is on a much safer route for K; she has friends locally; she struggles to make and maintain friendships; she needed support following an earlier move to the junior school; there is no direct bus to the allocated school; she has little road sense; they were impressed with the range of subjects offered, and extra curricula activities.
Her MP also wrote in support of her appeal, noting her lack of confidence and all her friends were going to the School. Her local councillor also wrote supporting the appeal, highlighting the unsafe route to the allocated school and her difficulties making friends. K’s class teacher wrote as well setting out the need for emotional support.
The first and second stage hearings were heard separately. The first was held in the morning as a grouped hearing, the second in the afternoon as individual hearings. The Council confirmed both the presenting officer for the School and Miss J attended virtually for the first stage hearing. The presenting officer attended in person for the second stage hearing while Miss J attended virtually.
My findings
The Councillor Miss J complains about the way the second stage hearing was held. She says she asked a local councillor to support her during the online appeal. The councillor said he notified the Council’s education department of this but was not told this would be a problem.
At the start of the hearing, she says the panel told him he could not speak, comment, or ask questions. The councillor says he supported many families at their appeals over the years but was never treated this way. He agrees with Miss J’s view of the panel failing to take her appeal seriously and behaving unprofessionally.
Following the hearing, the councillor emailed Miss J after complaining to the Council and meeting a senior education officer. The councillor claimed, ‘the rules have not changed and I should have been allowed to speak’. His email quoted an email he said he received from this officer, although I have not seen a copy of the original email sent to him. The quoted text said the officer spoke to the clerk to make it clear if a parent wished to speak and have a representative also speak on their behalf, it was a matter for the panel Chair. All clerks would be reminded of this and have their training updated. It also said it appeared the Chair followed the advice of the clerk and the ‘matter has been addressed with the clerk to ensure it does not happen again’.
The Council confirmed Miss J said the councillor would attend to give her support. At the start of the hearing, the clerk asked her if she was representing herself or if the councillor would be presenting the case on her behalf. She said she was presenting her own case. The clerk said if Miss J was to present her own case, the councillor could support her but not present the case as well. The councillor chose to leave.
The clerk’s record of the hearing confirms what the Council said.
The Council went on to explain the decision about the councillor and presenting the case. This was done to ensure the best use of available time. Information sent with the invitation for the hearing states a parent can represent themselves or have someone else represent their case on their behalf. If they wish, this can include councillors providing support. It also said the councillor was told he could share his views with Miss J for her to present to the panel, but he refused the offer.
I read the guidance notes for grouped appeals (first stage hearing).
I found no fault on this complaint. The Code makes it clear an appellant can have someone present at the hearing either as a representative or as someone accompanying them. The word ‘representative’ means someone acting on an appellant’s behalf. Someone accompanying an appellant implies they are not representing them but, are there in a purely supportive role.
Although the clerk’s notes could have been clearer, on balance, I consider they correctly told the councillor he could either represent, and present Miss J’s submissions to the panel, or he could support her, but she would have to make the submissions.
It would have been good practice for the Chair to have asked Miss J at the point the councillor left whether she still felt able to continue as this may have shaken her confidence, for example, or unsettled her.
I considered the email the councillor quoted and gave it less weight than the Council’s response. This is because the response I received from the Council was its formal corporate response. In addition, I did not see the original email the councillor received from the officer in full, including the date, and its context.
Unprofessionalism On balance, considering the evidence received from both Miss J and panel members and the clerk, I found no fault on the complaint about them behaving unprofessionally. This is because there is no independent evidence to support what Miss J claims.
Procedure There are two issues with the appeal procedure for this case. The first was during the second stage hearing. Miss J again attended virtually.
The Council explained the presenting officer appeared in person for all individual appeal hearings at stage 2. In response to my draft decision, the presenting officer said he attended this hearing virtually, not in person, and left at the same time as Miss J.
The Council’s version of events differs from that of the presenting officer as it went on to explain to comply with the Code’s requirement that neither party should be left alone with the panel in the absence of the other, the clerk was always present. Where the presenting officer was physically present, the clerk would ask the officer to leave at the same time a parent virtually left the hearing. Clerks admitted the parent once the officer had physically entered the room, otherwise the parent would have been alone with the panel when the clerk went out. If the parent attended in person, and the officer remotely, the clerk did the reverse. Clerks will be reminded to document the order of arrivals to the hearing in future.
As the Council noted, there is no record of the presenting officer entering and leaving the hearing when Miss J attended virtually. For appellants attending virtually, it would be difficult for them to know the presenting officer left the hearing at the same time they did. Due to the presenting officer’s response, there is now doubt about the accuracy of the clerk’s record of attendance.
The second issue is to do with missing information in the appeal papers. I have seen nothing which states what priority K came within. The last child offered a place under Priority 4 lived 0.915 miles away and K lived 0.973 miles away. The Council said this information would have been shared with the panel by the presenting officer during the hearing. While there is a document setting out the distance K lived from the School, there is nothing to explain what priority she had. Nor have I seen evidence setting out clearly what priority the last child offered a place at the school although the inference was the child was Priority 4.
It was important for the panel to know, rather than infer, what priority K had when deciding whether the admission authority had properly assessed her application according to the admission criteria. This is because she may have been given the wrong priority, for example.
While I consider this is fault, I am not satisfied it caused Miss J an injustice. This is because the last child and K both were Priority 4, but the other child lived closer to the School than her. This followed the School’s admission policy.
Decision making When the panel considered the appeal and reached its decision to refuse it, the record shows what issues raised were taken in to account. While it listed the considerations the panel looked at, it does not provide clear reasons for the decision.
The Council could not discuss the contents of the record with the clerk who is unavailable due to personal reasons. It pointed out the letter covered what the panel considered and concluded.
It accepted both the clerk’s notes and the decision letter wrongly record K’s surname. While the recording of the wrong surname was fault, I am not satisfied this caused Miss J a significant injustice. This is because it had no bearing on the decision made.
The clerk’s notes of the decision made by the panel refer to five issues the panel considered. This was under the section headed ‘Reasons for Stage 2 Decision’. Each issue considered was from a template list of 30 numbered potential issues. Those recorded on Miss J’s case were: 1 dissatisfied with school offered; 4 strength of the case for one school; 6 peer group attending preferred school; 8 domestic arrangements; 13 specialised subjects.
Below this list, the clerk entered: ‘Summary: The child has been given a school within a reasonable distance, the nearest school’.
I am not satisfied this properly records the reasons for the panel’s decision. The guidance notes on the document recording the decision refers to the list of 30 issues and says, ‘Please ask the panel to provide reasons as to why they considered each point’. No such reason was given for each one considered. Having read the list, and Miss J’s submissions, categories 15-17 are for transport issues (safety, distance, and difficulty). None of these were mentioned in the five issues the clerk listed.
The Code required the clerk to ensure an accurate record was made of the panel’s reasons for the decision. The only reason given was K being offered a place at the nearest school within a reasonable distance. This does not explain how the panel weighed each of the points she made against the prejudice that would be caused to the school of admitting her as required by the Code. Nor am I satisfied the offer of an alternative school is a relevant justification when balancing her submissions against the prejudice that would be caused. The panel was required to consider the reasons why K wanted to attend the preferred school, not why she should attend the allocated school.
The decision letter referred to what the panel considered which included: K’s safety travelling to and from school. It explained it noted there were local schools with places closer to home when considering her travel concerns. It said the panel decided her concerns did not outweigh the prejudice to the school caused by admitting her.
Her arguments about what the school could offer K and the impact on her of not attending. It noted other local schools can also offer K similar learning experiences and again concluded the prejudice to the school was greater by admitting her.
The reasons the letter set out were not reflected in the clerk’s record of the panel reaching its decision. This is fault.
I am satisfied this caused Miss J an injustice. This is because she has the uncertainty of not knowing whether the panel properly considered and decided the issues she raised and if they had done so, whether the decision might have been different. In addition, she lost opportunity of having her appeal considered properly.
Notification of decision Miss J claims she was missed off the initial list for those to be sent decision letters. More than a week passed before she got it and only after chasing the School. By then, all K’s friends had received their letters two days earlier.
The Council confirmed telling Miss J the clerk had been admitted to hospital and had not completed her decision letter. It apologised, accepting it should have been more proactive identifying which letters were sent and contacting those which had not. All 26 decision letters were delayed. A decision to release the completed 25 letters was made in advance of the final one being completed, which was Miss J’s. They were issued on 27 June and Miss J’s the following day. She received hers 13 days after the hearing. Miss J sent me a copy of the email she received enclosing the decision letter which is dated 29 June.
I am satisfied the Council sent Miss J the decision letter ten school days after the hearing instead of the required five days. The Code says letters can be sent later than five days where there is good reason. While I accept the clerk could not send them out because of personal reasons, the Council should have had procedures in place to cover the possibility of a clerk becoming unavailable for whatever reason. I appreciate the problem the Council faced, and while a couple of days of delay, for example, might count as a ‘good reason’ under the Code in these circumstances, I am satisfied the remaining delay could not. This is because the Council should have had systems in place to ensure prolonged delays in this type of situation were avoided.
Finally, I note in response to my enquiries, the Council confirmed: It is reviewing the panel and clerk training to ensure clerks note when attendees join and leave hearings; It will ensure Chairs manage the time available while ensuring appellants feel able to fully present their case; and It will ensure clerks record in detail the points considered in reaching their decision.
Agreed action
I considered our guidance on remedies.
The School agreed to carry out the following action within four weeks of the final decision on this complaint, unless otherwise stated: Send Miss J a written apology for failing to: include all relevant information in the appeal documents; show the Code was fully followed for the second stage hearings in terms of the presenting officer leaving the hearing; ensure an accurate record was made of the reasons for the panel’s decision; ensure it had procedures in place to ensure avoidable delays with sending her the decision letter.
Arrange for a rehearing of her appeal with a new appeal panel without delay.
Provide evidence of the steps taken to ensure clerks record, when presenting officers enter and leave hearings either virtually or physically, to show compliance with the Admission Appeals Code of Practice.
Remind clerks and appeal panel members of the need to give, and record, reasons as required under the Admission Appeals Code of Practice during the stage 2 hearing.
Ensure there are procedures in place to avoid delays with the sending of decision letters to appellants.
Final decision
I found fault by the School on Miss J’s complaint. The agreed action remedies the injustice caused.
Investigator's decision on behalf of the Ombudsman