The Ombudsman's final decision
Summary: Mr X complained about delays in the way the Council administered a school admissions appeal hearing and that the Independent Appeal Panel failed to properly consider the appeal for a place for his child. The Council was at fault as it delayed arranging the appeal and delayed sending a detailed decision letter. This caused Mr X frustration for which the Council has agreed to apologise. There was no fault in the way the Panel reached its decision.
The complaint
Mr X complained the Council failed to administer the school admissions appeal process in line with the School Admissions Appeal Code. In addition, he complains the Independent Appeal Panel failed to properly consider the appeal for a place for his child to the School. This meant his child missed out on a school place and caused them distress and anxiety.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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 complainant 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) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)
How I considered this complaint
I have considered the information provided by Mr X and have discussed the complaint with him on the telephone. I have considered the information provided by the Council in response to our initial enquiries.
I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.
What I found
The relevant law and guidance Statutory guidance about school admissions appeals can be found in the School Admission Appeals Code, published by the Department for Education.
Parents/carers have the right to appeal an admission authority’s decision not to offer their child a school place.
The code sets out that for applications made in the normal admissions round, appeal must be heard within 40 school days of the deadline for lodging appeals.
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.
Hearings are held in private and are conducted in the presence of all panel members and parties. The code says ‘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’.
Panels must follow a two-stage decision making process.
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.
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.
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.
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.
The panel must communicate the decision of each appeal, including the reasons for the decision, in writing to the appellant, the admission authority and the local authority. The decision letter should be sent to the parties as soon as possible after the hearing but not later than five school days, unless there is good reason.
The Government introduced emergency regulations because of the COVID-19 pandemic which were in force until 30 September 2022, and which temporarily amended the regulations and statutory guidance. This revised the timescales for sending decision letters. The guidance stated ‘Decision letters should be sent within 7 calendar days of the hearing or, in the case of an appeal conducted on the basis of written submissions only, within 7 calendar days of the appeal panel making their decision, wherever possible’.
What happened Mr X applied for a place for his child in year 7 at the School. As there were more applications than places available the Council applied the oversubscription criteria which places applicants into categories one to six (one being the highest). Where there are more applicants than places, the tiebreaker is straight line distance between the home and school. Mr X’’s child was placed in category six. The last place was awarded to a child in category six who lived nearer to the School than Mr X’s child so Mr X’s child was refused a place.
Mr X lodged an appeal with the Council on 8 March. The closing date for appeals was 25 March. Mr X emailed the Council in mid-June to ask why the appeal had not yet been arranged.
The Council arranged Mr X’s appeal for early July.
There were several appeals for the School which were all held separately. At the first stage of the appeal hearing the presenting officer presented their case that to admit more children would cause prejudice to the School and those already attending it. The School’s case included: Corridors were narrow and could become congested at lesson change over times There was limited dining and locker space Additional pupils would cause pressure on specialist facilities for science, music and technology.
Mr X asked questions regarding the School’s net capacity and dining space.
Mr X then presented his case. His reasons for the appeal included: His child suffered headaches and associated stress at school due to the classroom environment and needed a quieter, calmer environment.
The curriculum at the School was wholly appropriate to his child’s needs unlike that at the allocated school.
His child would have a positive impact on other children at the School.
Mr X provided letters from a psychologist, clinical psychologist, his child’s current teacher and statistics on the allocated school and the School appealed for in support of his case.
After hearing all the appeals the Panel decided the admissions criteria were properly applied and that admitting further pupils would cause prejudice to the School. It then considered Mr X’s case. It noted Mr X made some valid points. However, it considered Mr X’s child did not need to attend the allocated school and the appeal was for a place at the School, not against the allocated school. It noted the medical information provided. However, it decided not to uphold the appeal as it considered the prejudice caused to the School outweighed Mr X’s argument for the child to attend the School.
The clerk wrote to Mr X on 11 July to inform him the appeal was unsuccessful. The clerk wrote again on 29 July with a letter setting out the decision reasons in detail.
Mr X complained to the Council on 1 August about the process and the appeal. He complained about the delay in arranging the appeal and sending the decision letter and that the presenting officer remaining in the hearing room with the Panel.
The Council responded to Mr X’s complaint in August 2022. It said the appeal form was not received by the Appeal Team until 1 June. It acknowledged the appeal should have been held earlier and apologised for the delay. It explained it had sent a letter advising of the outcome of the appeal and then 18 days later sent a further letter setting out how the Panel reached its decision. It apologised for the delay in sending this. The Council said the clerk remained in the room with the presenting officer at all times. If the clerk left the room so did the presenting officer.
Mr X remained unhappy and complained to us.
In response to our enquiries the Council has provided statements from the panel members and the clerk to the appeal. All state the presenting officer was not left alone with the Panel at any time and that, at all hearings that day, when the appellants left the room the presenting officer did also. Mr X and his wife have also provided statements to say the presenting officer remained in the room when they left their hearing.
Findings
The Council delayed passing Mr X’s request for an appeal to the Appeal Team. As a result, the Council did not meet the statutory timescales for holding an appeal. This was fault.
Mr X says the delay impacted his ability to apply/appeal to other schools. It was open to Mr X to apply and appeal to other schools alongside this appeal. Even if this appeal had been heard earlier, I cannot say, even on balance, that any subsequent appeal Mr X chose to make would have been heard before the school summer holidays.
There was also a delay in the Council sending the detailed decision letter to Mr X. The Council informed Mr X his appeal was unsuccessful within five days. However, the guidance requires councils to provide reasons for the decision. Although the regulations introduced due to the COVID-19 pandemic relaxed the timescales for sending decision letters, in this case Mr X’s appeal was heard on 8 July and the decision letter setting out the reasons was not sent until 29 July. I consider that delay excessive and fault. This caused Mr X frustration. The regulations introduced due to the COVID-19 pandemic have now ended and so we will expect the Council to ensure decision letters are sent out within five working days in future. The Council has advised it is currently recruiting additional clerks to improve its capacity for next summer. The decision letter itself clearly set out the factors considered by the Panel and how it reached its decision.
Mr X also complained the Presenting Officer stayed in the hearing after he left. The Council has provided statements from the clerk and panel members which state this was not the case. Mr and Mrs X provided statements contradicting this. I was not present and cannot make a finding on what happened, even on the balance of probabilities. However there is no evidence this impacted on the decision of the Panel.
The Ombudsman is not an appeal body, and we cannot question decisions taken without fault. I have considered all the appeal documents and the clerk’s notes of the appeal. The clerk’s notes show Mr X was given time to present his case and the Panel was aware of all his arguments in reaching its decision.
The Panel considered the School’s and Mrs X’s arguments when coming to its decision. The clerk’s notes of the appeal hearing show the Panel was aware of the reasons for Mr X wanting a place at the School for her child. I am satisfied it was aware of the facts of the case before it made its decision.
I cannot criticise the Panel’s decision, no matter how much Mr X disagrees with it, unless there is evidence of fault in the way it came to that decision. It was for the Panel to decide what weight to give to each piece of evidence. I have found no evidence of fault in the way the Panel reached its decision to refuse Mr X’s appeal.
Agreed action
Within one month of the final decision on this complaint the Council has agreed to apologise to Mr X for the frustration caused by the delay in arranging the appeal hearing and in sending the letter setting out the reasons for the decision on the appeal.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. The Council was at fault causing injustice for which the Council has agreed to a remedy.
Investigator's decision on behalf of the Ombudsman