Summary: Mrs X complained about how the appeal panel considered her appeal for her child at a preferred school. There were some faults in how the panel considered Mrs X’s appeal. As a result, Mrs X cannot be satisfied the appeal process was carried out fairly. To remedy the injustice caused, the Council will arrange a fresh appeal with a different panel and clerk for the hearing.

The complaint

1. Mrs X complained about how the appeal panel considered her appeal about a place for her child at a preferred school (school 1). In particular, Mrs X alleged:

• the panel failed to give her enough notice to respond to the preferred school’s appeal statement. Mrs X said she was given less than four hours’ notice period
• it was inappropriate for the presenting officer to have asked her some questions at the appeal hearing. Mrs X said the presenting officer’s role was to clarify information and unclear reasoning and not to ask questions
• the appeal panel’s decision was based on inaccurate information and unclear reasoning. For example:
1. Mrs X said the preferred school stated a class size over 30 students would have a negative effect on learning and students moving around the school. She said this was inaccurate as other year group class sizes are made up of over 30 students
2. the Council awarded a place to her child at school 2 which Mrs X alleged was not one of their preferences in their application form
3. the appeal decision letter dated 5 May 2022 stated school 3 was Mrs X’s second choice, she said this was inaccurate
4. the Council’s written statement referred to a wrong school (school 4)
5. the panel’s unclear reasoning that her child’s needs could be met by a different school.

2. Mrs X said as a result, her child was denied a place at the preferred school and his confidence, mental and physical health have been affected. She said the matter also caused significant distress to her child and her family.

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The Ombudsman’s role and powers

3. 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)
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 discussed the complaint with Mrs X and considered the information she provided.
6. I have also considered the information provided by the Council. The Council was acting on behalf of the preferred school.
7. I sent Mrs X and the Council a copy of my draft decision and considered comments received before reaching a final decision.

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What I found

Statutory Guidance

8. Statutory guidance about school admissions and appeals can be found in The School Admissions Code and School Admission Appeals Code. Both published by the Department for Education.
9. All schools must have admission arrangements that clearly set out how they will admit children, including the criteria they will apply if there are more applications than places at the school (oversubscription criteria).
10. Parents / carers have the right to appeal against an admission authority’s decision not to offer their child a school place.
11. Appeals must be held in private and conducted in the presence of all panel members and parties.
12. The admission authority must provide a presenting officer at the hearing to present the decision not to admit the child and to answer questions about the school’s case.
13. The clerk supports the appeal panel. Parents have the opportunity to submit information in support of their appeal. The clerk must send all papers required for the hearing within a reasonable time before the date of the hearing. This includes information from the appellant and the admission authority.
14. Panels must follow a two-stage decision making process.
15. Stage 1: the panel examines the decision to refuse admission. The panel must consider whether:

• the admission 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.

16. 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.
17. 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.
18. The clerk must take an accurate record of the hearing, including the proceedings, attendance, voting and reasons for decisions.
19. The appeal panel must write to the appellant, the admission authority and the local authority 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.

The Preferred School Admissions Policy

20. Places are allocated by strictly applying the admission criteria for the school.
21. If a school has too many applications for the places available, it is known as an oversubscribed school. In this case the school must strictly apply its published oversubscription criteria to decide who gets a place.
22. Oversubscription Criteria includes the following categories:
1. Children who are ‘looked after’ (children in public care)
2. Medical Reasons
3. Sibling Links
4. Applicants who applied for a place at the nearest school to their home address measured by the shortest walking route
5. All other applicants.
23. Medical Reasons:

• Some admission authorities will consider individual applications for children with very exceptional medical factors directly related to school placement. This type of application must be supported in writing by relevant professional agencies, i.e., a doctor, and it is the parents’ responsibility to provide the relevant documentation. This supporting evidence should be wholly persuasive. It must explain why the school you wish your child to attend is the only school based on fact, not opinion, that can meet your child’s medical and social needs and the difficulties that would be caused if they had to attend another school.
• Reasons such as food allergies, asthma, anxiety and Attention Deficit Hyperactivity Disorder (ADHD) will not be considered as exceptional medical factors as all schools are able to effectively manage these. Supporting evidence will be considered by the relevant admission authority and may require liaison with relevant health care professionals. The provision of any information/evidence does not necessarily in itself guarantee the offer of a place at your desired school. The relevant authority will make the final decision on the application.

24. All other applicants - Where the school is oversubscribed within any of the above categories the following tiebreakers will be applied:

• For those children who have applied for a place at the nearest school to their home address, priority will be given to those living closest to the nearest school measured by the shortest walking route
• For other children, priority will be given to those children who live nearest to the school applied for. Otherwise, if only one final place can be offered and two applicants live equidistant from the school, the LA’s system of random allocation will apply.

25. If you cannot be offered one of your preferences, you will be offered a place at the nearest suitable school or academy to the child’s home address with places available.
26. To qualify for free home to school transport, children of compulsory school age are required to attend the nearest suitable school, where the home to school distance (based on child’s address) using the shortest route is over 3 miles for children 8 years and over.

What happened

27. This chronology includes key events in this case and does not cover everything that happened.
28. Mrs X’s child, Y, attended the reception and primary school of the preferred secondary school Mrs X wanted him to attend.
29. In October 2021, Mrs X applied for a Year 7 place for Y to start in September 2022 at her preferred secondary school, School 1.
30. School 1 refused Mrs X’s application for Y because the school was oversubscribed.
31. In March 2022, Y was offered a place in another school, School 2. Mrs X said she had never heard of School 2, and it was not one of her preferences. She said she was confused why the Council offered Y a place at School 2, so Mrs X said she called the Council for an explanation. She said the Council explained Y was offered a place at School 2 because School 1 (the preferred school) was oversubscribed. Mrs X said she raised her concerns to the Council that School 2 was too far from her home address.
32. Following Mrs X’s concerns, the Council offered Y an alternative school, School 3, which was closer to Mrs X’s home address. School 3 was not a school Mrs X had expressed a preference for, but she asked the Council to put Y onto School 3’s waiting list and she later accepted the offer. Mrs X said this was because she wanted to secure a school placement for Y to start in September 2022 pending her appeal against the refusal decision to offer Y a place at School 1.
33. On 6 April 2022, the Council sent Mrs X a copy of School 1’s appeal statement which detailed the school’s refusal reasons to offer Y a placement. The Council said the school’s statement would be presented to the panel. The Council asked Mrs X to submit her questions and/or comments on School 1’s statement about the issue of ‘preference only’ by email no later than 12noon on 13 April 2022.
34. School 1’s appeal statement highlighted its reasons not to award a place to Y. It said the school was oversubscribed and it had admitted 10 additional pupils above its published admission number (PAN) to maximise parental preference. School 1 explained Y’s application was refused based on the school’s distance to Y’s home address. School 1 raised concerns about how it would be prejudicial to the school’s provision of efficient education or the effective use of resources if it admitted more students on appeal into Year 7. School 1 said although parents could express their preference for a school, it could not reasonably justify providing additional spaces at ‘School 4’ (a totally different school) when there were surplus places at other schools within a reasonable distance from Mrs X’s home address. It explained School 3 was the nearest school to Y’s home address which it offered Y as an alternative school. The panel said Y was entitled to home to school transport in line with its policy because School 3 was over 3 miles from Y’s home address.
35. On 12 April 2022, Mrs X submitted her appeal against School 1’s decision to the appeal panel. She explained some of the family members had attended School 1 and Y attended its reception and primary school. So, she said it had always been the plan for Y to also attend its secondary school. Mrs X said the refusal decision had affected Y’s confidence and he had become extremely anxious. She explained COVID-19 had affected Y’s loss of taste and smell, his eating anxiety and mental wellbeing. Mrs X said Y had built a strong friendship group from reception to year 6 and most of his friends would be attending School 1. She said the refusal decision would prevent Y getting the support he needed from his friendship group which would affect his education and worsen his physical and mental health. Mrs X said School 1 was the right school for Y because it would give him the all-round support he needed, and he would continue to get support from his friendship group. Mrs X submitted a letter from Y’s primary school teacher in support of her case and the reasons she highlighted in her appeal form.
36. On 13 April 2022, the Council sent a follow-on email to Mrs X about its previous email dated 6 April 2022. It referred to School 1’s appeal statement and asked Mrs X to provide it with her questions/comments on the statement by lunchtime on the deadline date, 13 April 2022. Mrs X sent her questions about the issue of preference to the Council before 12noon the same day.
37. Mrs X said she raised her concerns to the Council about the accuracy of the information relied on when it considered a place for Y at School 1. She said the school’s appeal statement mentioned a wrong school (School 4) instead of School 1. Mrs X said the Council sent her a revised copy of the appeal statement which again referred to a college instead of School 1. Mrs X said she was not reassured that Y’s case was properly considered. The Council confirmed these were typographical errors and it apologised to Mrs X. The Council confirmed all information in the Council’s statement related to School 1.
38. In May 2022, the appeal panel considered Mrs X’s appeal.
39. The clerk’s note at stage 1 was very brief. The notes showed the panel agreed School 1 was oversubscribed and it had already given 10 more places to pupils over its PAN. The notes showed all panel members agreed there was a case for prejudice.
40. At stage 2, the panel considered the prejudice to School 1 against Mrs X’s case. The clerk’s note showed the panel considered Mrs X’s appeal on the grounds of her family connection, the impact COVID-19 had on Y, his loss of taste and smell and friendship support. It considered Mrs X’s concerns about how Y’s anxiety and mental health would be worsened if separated from his friends who were going to School 1.
41. Mrs X’s appeal was unsuccessful.
42. On 5 May 2022, the panel issued its decision letter to Mrs X. The panel stated it was satisfied there would be prejudice to the efficient education of the students already in School 1 and the efficient use of resources if additional children were to be admitted into Year 7. The panel said it further considered Mrs X’s personal circumstances and the reasons she wanted Y to attend School 1. It explained Mrs X’s personal circumstances did not outweigh the prejudice to the efficient education of pupils in School 1 and the efficient use of resources if additional children were to be admitted into Year 7. The panel said it was of the view Y had been offered a reasonable alternative school, School 3, which was Mrs X’s second choice. The panel said Y would qualify for home to school transport to School 3 in line with the home to school transport policy because it was the nearest suitable school from Mrs X’s home address.
43. Mrs X remained dissatisfied with how the panel considered her appeal about a place for Y at School 1. She alleged the appeal panel’s decision was based on inaccurate information and unclear reasoning. Mrs X made a complaint to the Ombudsman.

Analysis

44. There were some faults in how the panel considered Mrs X’s appeal.
45. The Ombudsman’s role is to consider whether the appeal panel followed the Admission Appeals Code. The clerk’s notes at stage 1 of the appeal process failed to show how the panel considered if the admission arrangements were lawful and properly applied. The clerk is required to keep a robust record of the hearing and the reasons for the panel’s decisions. There was no record in the clerk’s notes of how the panel satisfied itself the admission arrangements had been properly applied to Y and the reasons why it was satisfied. This was fault. The clerk’s notes do not have to reflect word for word what took place, but it should be possible to tell how the panel arrived at its decision and the key points that were considered.
46. Similarly, the decision letter did not show the panel discussed or made decisions on whether the admission arrangements were lawful and correctly applied. Therefore, there was no evidence the panel properly considered all the issues it must do at stage 1 of the appeal process before it proceeded to stage 2. This was fault.
47. In view of the faults outlined above, I consider Mrs X cannot be satisfied she received an adequate or fair hearing. To remedy this injustice, the Council has agreed to arrange a fresh appeal with a new panel and a new clerk for the hearing. We expect the fresh appeal to be presented using the same information about the availability of places at the time Mrs X made her first appeal. This is to ensure she is not disadvantaged by other successful appeals, decided since the original appeal, which may have increased pupil numbers at School 1.
48. The Council referred to a wrong school (school 4) instead of School 1 in its written appeal statement and the appeal decision letter dated 5 May 2022 wrongfully stated School 3 was Mrs X’s second choice. This did not reassure Mrs X that the Council and the appeal panel properly considered Y’s case. While these errors were unfortunate, it had no bearing on how the appeal panel considered Mrs X’s case.
49. Mrs X alleged the panel failed to give her enough notice to respond to School 1’s appeal statement. Evidence shows, the panel initially sent an email to Mrs X on 6 April 2022, it asked Mrs X to submit her questions/comments on School 1’s appeal statement which it attached to the email. The panel asked Mrs X to respond by 12noon on 13 April 2022. After Mrs X submitted her appeal, the panel sent a follow-on email to Mrs X on 13 April 2022. It asked her to respond to the school’s appeal statement by noon on the same day, the initial deadline date. It was unfortunate Mrs X did not receive School 1’s appeal statement when the Council sent her its initial email dated 6 April 2022. But it is not proportionate for the Ombudsman to investigate this matter further. This is because the Council has agreed to a new appeal, and we cannot achieve anything more.
50. Mrs X also complained the presenting officer asked her some questions at the appeal hearing. She believed this was inappropriate and questioned the role of the presenting officer during an appeal process. The school admission appeals code sets out the appeal hearing procedure. The admission authority and the panel including the presenting officer can question appellants. I therefore find no fault with the presenting officer asking Mrs X questions during the hearing.

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Agreed action

51. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• arrange a fresh appeal to be heard by a new appeal panel and a new clerk
• the appeal should be considered based on the admission figures at the time Mrs X made her first appeal. This is to ensure she is put back in the position she would have been, had the appeal been properly considered
• by training or other means remind panels of the need to consider and satisfy themselves at stage 1 that the admission arrangements were correctly applied, in line with statutory guidance
• by training or other means remind clerks of the need to record robust and clear reasons for the panel’s decision at both stages of the appeal process.

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Final decision

52. I find evidence of fault leading to injustice. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman