Summary: Mr X complains about the Council’s handling of admission to secondary school for his child, Y. The Council is at fault as it cannot demonstrate it properly applied its admissions criteria to Mr X’s application for his child. The Council delayed in providing the questions and answers for the appeal panel hearing and did not provide sufficient in the appeal panel’s decision letter for Mr X to understand why his appeal was refused. But these faults did not cause significant injustice to Mr X. The Council delayed in responding to Mr X’s Freedom of Information request and complaint which caused avoidable time and trouble to him which the Council has agreed to remedy.

The complaint

1. Mr X complains about the Council’s handling of admission to secondary school in 2021 for his daughter Y. He is particularly concerned about:
1. the Council’s decision not to make an extra class available at his preferred school.
2. how the Council allocated a school place to his child.
3. arrangements for the admission appeal panel hearing; and
4. poor communication from officers.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’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 have considered the complaint made by Mr X and the documents he provided.
7. I considered the Council’s comments about the complaint and the documents it provided in response to our enquiries.
8. Mr X and the Council now have an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

Legislation and guidance

9. Councils have a duty to ensure there are sufficient school places available in their area.
10. Statutory guidance about school admissions and appeals is in The School Admissions Code and School Admission Appeals Code, published by the Department for Education.
11. In 2020, the government introduced emergency regulations because of the COVID-19 pandemic. These are the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. These temporarily amend the existing regulations and are due to remain in force until 30 September 2022. The government published guidance to accompany the temporary regulations, ‘Changes to the admission appeals regulations during the coronavirus outbreak’. This decision reflects the version of the guidance published on 1 February 2021.
12. Outlined below are key points from the School Admissions Code and School Admission Appeals Code. Where the emergency regulations introduced a temporary change to the admission appeal rules, it is identified.
13. Parents and carers have the right to appeal an admission authority’s decision not to offer their child a school place. An independent appeal panel decides the appeal.
14. A clerk supports the appeal panel. Parents can send 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.
15. The School Admission Appeals Code says appeal panels must allow appellants the opportunity to appear in person and present their case. The emergency guidance stated that face-to-face hearings should not take place, and appellants should be offered a hearing by telephone or video conference wherever possible.
16. The appeal panel could decide to hold the hearing remotely if they were satisfied that:
• the parties would be able to present their cases fully;
• each participant had access to video or telephone facilities allowing them to engage in the hearing; and
• the appeal hearing could be heard fairly and transparently in this way.
17. Where this was not possible, appeals could be conducted entirely based on written submissions. The guidance suggested a process for deciding appeals on this basis but said admission authorities and panels had to exercise their own judgement in each appeal to ensure parties were able to fully present their case.
18. For the panel to make a decision which is fair and transparent, they had to ensure the parties could fully present their case by written submissions. The emergency guidance suggested in these circumstances the admissions authority may follow this process:
• The clerk should contact the appellant and presenting officer. The presenting officer should have a copy of the appeal lodged and be asked to submit the admission authority’s arguments and evidence. The appellant should be given the chance to send more evidence if they wish. All submissions should be in writing.
• The panel and clerk should meet by telephone or video conference to consider the submissions and draw up questions for the appellant and presenting officer. The aim should be to clarify points made and seek further relevant information. They should bear in mind that appellants may be less familiar with the information and arguments required, and may have less experience preparing written submissions.
• The clerk should send the questions and all the papers to each of the parties. For example, the presenting officer’s submission will be sent to the appellant with both sets of questions, and vice versa.
• Both parties should reply with answers to the questions, and any further points they wish to make. On receipt, the clerk should send each party’s submission to the other party. The parties should be informed that any information or evidence not sent by the relevant deadline might not be considered by the panel.
• The panel should meet by telephone or video conference, with the clerk, to consider all the information and reach a decision in the same way as prescribed in the Appeals Code.
19. When making the decision, panels must follow a two-stage decision making process. At stage one, the panel examines the decision to refuse admission. The panel must consider whether:
• the admissions arrangements complied with the requirements set out in the School Admissions Code;
• the admission arrangements were applied correctly; and
• 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: balancing the arguments. The panel must balance the prejudice to the school against each appellant’s case for their child to be admitted.
21. In multiple appeals, where the panel finds there are more cases which outweigh prejudice than the school can admit, it must uphold those with the strongest case for admission. When a panel decides a certain number of children could be admitted without causing prejudice, it must uphold at least that number of appeals.
22. 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.
23. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
24. The appeal panel must write to the appellant with its decision and the reasons for it. The decision letter must be easy to understand and must contain a summary of relevant factors raised by parties and considered by the panel. It must also provide clear reasons for the panel’s decision.
25. The guidance accompanying the emergency regulations urged admission authorities to settle appeals lodged in the main admissions round before the start of the September term wherever possible.

Council’s approach to admissions and appeals

26. When schools are oversubscribed, the Council prioritises places for looked after and previously looked after children, those with compelling medical or other exceptional reasons to attend the school, siblings and those living in the catchment area. If a school is oversubscribed with children in any of these categories, the Council uses a random allocation system to decide which of the children in the priority group should be offered the available places.
27. The School Admissions Code says a random allocation process must be supervised by someone independent of the school, and a fresh round of random allocation must be used each time a child is to be offered a place from a waiting list.

What happened

28. Mr X applied for a secondary school place for Y in the normal admissions round. He named School A and School B as his preferred schools. Y lives in the catchment area for both schools.
29. School A and B were oversubscribed so the Council applied its random allocation process Y was unsuccessful in the random allocation ballot for both schools and was allocated a place at a third school, School C, which was the nearest one to her home with places available.
30. Mr X appealed the Council’s decision about a school place for Y. The appeal panel met in May and in June the Council wrote to Mr X to say the appeal had been unsuccessful.
31. In early September 2021, the Council offered Y a place at School A under the random allocation process.

Findings

The Council’s decision not to make an extra class available at Mr X’s preferred school

32. In 2018, 2019 and 2020, the Council and School A decided to admit an additional 30 pupils above the school’s published admission number of 330. However, in 2021 it decided not to offer these additional places. Mr X is unhappy with this decision.
33. The Council discussed and confirmed its admission arrangements for September 2021 at a Children, Young People and Skills Committee meeting in January 2020. This set the published admission number for School A at 330. The decision and the admission arrangements were published by the Council. The Council also published admissions information for prospective parents which included that School A’s published admission number was 330. Mr X acknowledges he did not check these documents before making an application.
34. At a further committee meeting in March 2021, the Council explained why it had decided not to offer additional places. It said:
• it had to consider the capacity of the school to safely absorb additional numbers. Analysis by the school and council concluded this could not be done safely;
• there were already three additional classes making their way through the school, and the school was reliant on temporary classrooms to accommodate them;
• additional pupils affected timetabling and available staff, and overcrowding in corridors, the number of toilets, and catering facilities also had to be considered. School A already lacked sufficient toilets based on its existing pupil numbers;
• there were enough school places in the city to accommodate all pupils, and all secondary schools were rated ‘Good’ by Ofsted; and
• from 2023, projections suggested there will be less demand on places at Schools A and B.
35. The Council acknowledged families were upset by the consequences of its decision and said it would check if any of the children who missed out on their preferred school place needed support. Mr X has said the Council did not provide any support.

Analysis

36. I do not intend to find fault in the Council’s decision not to offer extra places at School A. The Council decided the published admission number for School A well in advance of the normal admissions round and made this information available to parents. It told parents no child could be guaranteed a place in a catchment school. Mr X assumed the school would offer an additional class as it had in previous years, and it was undoubtedly upsetting to find his child had not been offered a place. But I have not seen evidence the Council published any information which supported Mr X’s assumption. The Council was satisfied there were sufficient school places available in the city; it complied with its statutory duty. The Council has discretion to decide whether to provide an extra class, and it has demonstrated the factors it considered in deciding not to do so. As there is no evidence of fault in how the Council reached its decision, I do not have grounds to question it.

Place at School C

37. Mr X is unhappy with the Council’s decision to offer Y a place at School C. He says there were nearer schools with places available. He is also concerned about the Council’s handling of his request for Y to be considered in a higher priority group, and the robustness of the Council’s random allocation system.
38. In response to our enquiries, the Council confirmed there were no places available at any closer schools on national offer day. It said once places had been allocated according to parental preference, the remaining places at nearer schools were allocated to children living closer than Y, who had not been offered a place in any of their preferred schools. Therefore, School C was the closest school with places available.
39. Mr X disputes the Council’s position that there were no places at closer schools. But I will not pursue this matter further as I cannot achieve anything by doing so. This is because Y has a place at school A.

Medical evidence

40. In April, after she was offered a place at School C, Mr X asked the Council to consider whether Y met the criteria to be considered in a higher priority group relating to her social and mental health needs. He said she experienced severe anxiety and the removal of her peer support group would have a detrimental effect on her. He provided a supporting letter from her headteacher and SENCO of her primary school.
41. The Council said when a request is made for a child to be considered under medical or other exceptional reasons to attend the school, a parent must provide independent evidence from a professional supporting the family that it is essential for a child to attend the preferred school. For evidence provided by January of the normal admissions round, the Council holds a meeting to review the supporting information and decide whether the parent has made a case for their child to be considered under this criterion. A further meeting is held with the Community Consultant Paediatrician to seek specialist advice and consider any medical evidence provided.
42. The Council said if information is received after January, it is not considered until after national offer day in March as it is too late to make changes in the allocation process. The Council said it is not always possible to hold a meeting to discuss evidence it received late, but the Community Consultant Paediatrician will usually provide advice by email or telephone if medical information is submitted.

Analysis

43. The Council considered Mr X’s request but said the evidence provided did not demonstrate only School A could meet Y’s needs. On balance, I do not consider this is fault by the Council as it considered the information provided by Mr X. But even if the Council should have sought the view of the Community Consultation Paediatrician, I cannot know what their view would have been. Furthermore, the appeal panel considered Mr X’s reasons for wanting a place at the school, including that it was the only school which could meet Y’s needs. Y now has a place at the school. So even if there was fault by the Council, it would not have caused significant injustice to Mr X.

Random allocation system

44. The Council allocates places according to the admission criteria. Y was considered under priority 4 which is the criterion for catchment area children. As there were more applicants than pupils in priority 4 the Council used its random allocation tie break. Where the random tie break is used every preference for a school is assigned a random allocation number. The computer lists all the pupils for a school in priority order and within each priority it uses the random number to order the list of pupils. When places become available the Council re-runs the randomisation to order the waiting lists to allocate the places.
45. Mr X has raised concerns about the robustness of the Council’s random allocations system for allocating school places. The Council said that its random allocation process was independently audited in 2008 when it was first introduced. This concluded that substantial assurance can be given that the process was robust and allocations are made within the agreed policy. The process has not changed since that audit was carried out. The Council said it checks a random sample of pupils to ensure the computer algorithm has allocated the correct school place. It also carries out extensive user testing following a software upgrade to ensure the random allocation function is performing correctly.
46. The random allocation process is not supervised by a person independent of the Council. The Council is the admission authority but it considers it is compliant with the School Admissions Code. The Code provides the supervision should be independent of the school, not the admission authority. It considers admission officers are sufficiently separate from the operation of the school so are independent in the administration of the allocation process.

Analysis

47. In view of the Council’s explanations, I am satisfied the Council has taken appropriate action to ensure its random allocations system is robust. I am also satisfied that it is complying with the School Admissions Code and there is supervision of the allocation process which is independent of the school.
48. Mr X is concerned about the transparency of the random allocation process as the Council was unable to demonstrate Y’s ranking and how it compared to other pupils. I share Mr X’s concern. The Council has provided Y’s ranking after the first round of allocations but this does not show how her ranking compared to the pupils who were allocated places. The Council cannot provide the ranking given to Y after each time the waiting list was re-randomised as its system does not retain historical information. This means the Council cannot demonstrate it properly carried out the allocation process for Y. This also means I cannot say whether there is fault in how the allocations process was carried out. But I consider the lack of transparency is fault. This will have caused some uncertainty to Mr X but this is largely remedied as Y was offered a place in September 2021.
49. The Council has said it will introduce a process whereby it will take screen shots as part of the allocation process to provide evidence of where pupils are placed each time the waiting lists are re-randomised. This will go some way to addressing the lack of transparency. But the Council should also ensure it keeps a record of the order of pupils after the first allocation to ensure it can demonstrate where a pupil is placed in relation to the pupils who are allocated places. This information should also be provided to appeal panels so they can satisfy themselves the admission arrangements have been properly applied.

Arrangements for the admission appeal panel hearing

50. Mr X submitted his appeal in March 2021.There were a large number of appeals submitted for the school. In mid March 2021 the Council sent a questionnaire to all appellants, including Mr X, to establish if they were able to join a remote hearing. The Council said the appeal panel decided to hold the appeals by written submission as not all appellants were able to join a remote hearing.
51. In April, the Council sent an email to Mr X setting the arrangements for the appeal. This included the agreed format for the appeals, the dates appeal papers would be sent to all parties, dates for additional information to be submitted and dates to submit questions on the papers. The email said the questions would be circulated to all parties with a deadline for response of 16 May 2021. Appellants could submit further documents by 19 May 2021 to allow the panel time to read them before considering the appeals on 26 May 2021. The email said it would be at the chair’s discretion to consider further evidence after 19 May 2021.
52. The Council sent the papers for the appeal to Mr X in early May. It also notified him of a change of appeal panel membership due to concerns raised by appellants about a potential conflict of interest.
53. Mr X submitted 66 questions on the admission authority’s case why more pupils could not be admitted to the school and why Y had not been allocated a place. The Council responded to the questions on 18 May which was two days after the deadline of 16 May 2021. The Council said the delay was caused as the admission authority needed longer to prepare its response as it had received over 250 questions.
54. The appeal panel considered the appeal. The clerk’s notes show the appeal panel considered if the admission arrangements complied with the law, that they were correctly applied and the admission authority had made its case that the admission of further pupils would prejudice the efficient education and use of resources at the school and its reasons for this decision. The clerk’s notes also show the appeal panel went on to stage two and considered Mr X’s reasons for wanting a place at the school but considered these did not outweigh the prejudice to the school. It therefore refused Mr X’s appeal.
55. The day after the appeal, the clerk to the appeal panel notified Mr X of the panel’s decision to refuse the appeal. The clerk said a further letter would be sent to Mr X setting out the appeal panel’s reasons for refusing the appeal. This letter was sent to Mr X in mid June 2021.

Analysis

56. There is no evidence of fault in how the panel made its decision to hold the appeals by written submission. The decision was made after considering the outcome of the questionnaires and it was satisfied the conditions for holding the appeals remotely could not be met. I have not seen any record of the appeal panel’s decision and the Council should have ensured it had a record of all the panel members’ decisions on the method for considering the appeal. But this did not flaw its decision to hold the appeals by written submissions.
57. Mr X has raised concerns that the Council appointed a panel member who had a conflict of interest. The Council replaced the panel member before the appeals were considered so there is no significant injustice to Mr X to warrant pursuing this matter further.
58. The Council was late in sending its response to the panel and appellants questions which meant Mr X only had a further day to submit further papers. On balance, this is fault but I do not consider it caused significant injustice to Mr X. It was still open to him to submit further information, albeit the Chair would consider if it could be admitted.
59. Mr X has said the Council did not answer all the questions raised by appellants in its response to questions. I do not intend to pursue this further as it is not proportionate to do so. Y has a place at the school so I could not achieve anything more by investigating this matter further.
60. The clerk’s notes show the appeal panel considered the appropriate tests at stage one. The notes also show the appeal panel considered Mr X’s specific reasons for wanting a place for Y at the school and its reasons why it considered these did not outweigh prejudice at the school.
61. However, as stated above, I consider the Council should be able to show a pupil’s ranking in comparison to the pupils who were allocated places after the random allocation to demonstrate it has properly applied the admission arrangements. It could not provide this information to the appeal panel which meant the panel could not have made a fully informed decision on whether the admission arrangements had been properly applied. This does not call into question the appeal panel’s decision on Mr X’s appeal as I cannot say there is fault in how the admission arrangements were applied to Y. In any event the Council offered Y a place at the school in early September 2021 so there is no significant injustice. But the Council should ensure it provides sufficient information to appeal panels to enable them to make an informed decision on whether the admission arrangements have been properly applied.
62. Mr X considers the clerk’s letter setting out the decision of the appeal panel was insufficient as it did not address all his questions and points raised. The School Admission Appeals Code (applicable at the time) provides the letter must be easily comprehensible so the parties can understand the basis on which the decision was made. It should contain a summary of the factors considered by the appeal panel and clear reasons for its decision. There is no requirement for the clerk to provide a detailed rebuttal of an appellant’s arguments for why their appeal should be allowed. The decision letter gave a detailed explanation of the factors it considered and reasons for its decisions at stage one of the appeal.
63. However, it did not do the same at stage two. It did not summarise the reasons put forward by Mr X for wanting a place at the school or explain why his reasons were not compelling enough. As a result Mr X could not know the basis for the panel’s decision. But I do not consider this fault alone caused significant enough injustice to Mr X to warrant a remedy from the Council. The Council has taken action to ensure it provides decision letters in accordance with the code in future.

Poor communication from officers

64. Mr X has said he was put to time, trouble and distress by poor communication by the Council before and after his appeal. The information provided by the Council shows a large volume of correspondence between Mr X and the Council between March 2021 and July 2021. This includes FOI requests and complaints.

Analysis

65. The Council has acknowledged it delayed in dealing with his FOI request of early March 2021. It also said there was confusion and delay in dealing with his complaint. This is fault which will have caused some avoidable time and trouble to Mr X.
66. I do not intend to examine all Mr X’s contact and correspondence with the Council between March and July 2021 to establish if there is further fault than that already acknowledged by the Council. I am mindful this was a stressful time for Mr X and his family. But it would be disproportionate to what I could achieve for Mr X to investigate this matter further.

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Agreed action

67. That the Council will:
1. Send a written apology and makes a payment of £150 to Mr X to acknowledge the avoidable time and trouble caused to him by the delays in dealing with his FOI request and complaint. The Council should take this action within one month of my final decision.
2. Ensure it can provide evidence to show the ranking of pupils who are not offered a place at the school in comparison to the pupils who are offered a place after each round of allocation and re-randomisation of the waiting lists. This is to ensure the allocations process is transparent. The Council should also ensure it provides this information to appeal panels to enable them to make an informed decision on whether the admissions arrangements have been properly applied. The Council should take this action within two months of my final decision.

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Final decision

68. Fault causing injustice.

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Investigator's decision on behalf of the Ombudsman