Summary: We found fault on Mr P’s complaint about the appeal panel rejecting his appeal against the admission authority’s decision to refuse his son a Year 7 place at the preferred school. There was no record of the panel considering and deciding to continue without a presenting officer, and whether this put him at a disadvantage. It also failed to address how it dealt with the questions it would have asked the officer when reaching a decision. The fault did not cause Mr P an injustice.

The complaint

1. Mr P complains about the failure of the appeal panel to properly consider his appeal against the admission authority’s decision to refuse his son a place in Year 7 at his preferred school: as a result, his son is distressed, anxious, and worried as he is not going to school.

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The Ombudsman’s role and powers

2. 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)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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School Admissions Appeals Code (October 2022)

5. 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)
6. The admission authority must provide a presenting officer to appear either in person or remotely (by video or telephone conference) to present the decision not to admit the child and to answer detailed questions about the case being heard and about the school. If no presenting officer attends on the day of the appeal, the panel can decide to resolve the case by using the evidence submitted by the admission authority if satisfied that to do so will not disadvantage the appellant. (paragraph 2.12)
7. 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 2.29)
8. Appeal panels must follow the 2-stage decision making process for this type of appeal. (paragraph 3.1)
9. 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)

10. 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)
11. 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)
12. 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. (paragraph 3.7)
13. 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)
14. Panels must ensure appeals are decided by a simple majority of votes cast. (paragraph 2.26)
15. 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 2.27)
16. The appeal panel must take account of the school’s published admission number and the admission authority must demonstrate prejudice over and above the fact that this number has already been reached. While not reassessing the capacity of the school, it must consider the impact on the school of admitting additional children. When reaching a decision about whether there would be prejudice, the panel must consider the following:

• What effect an additional admission would have on the school in the current and following academic years as the year group moves through the school;
• Whether any changes have been made to the school’s physical accommodation or organisation since the admission number was originally set for the relevant year group;
• The impact of the locally agreed Fair Access Protocol; and
• The impact on the organisation and size of classes, the availability of teaching staff, and the effect on children already at the school. (paragraph 3.10)

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How I considered this complaint

17. I considered all the information Mr P sent, including the response I received to my enquiries from the School. I sent a copy of my draft decision to Mr P and the School. I considered the School’s response.

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What I found

18. Mr P applied late for his son to join his preferred school in Year 7 after spending time abroad. He applied a month before the start of the new academic school year. The governing body (the School), acting as admission authority, refused his son a place as the Year was already over the published admission number (PAN). The local education authority (the Council) offered his son a place at the nearest available school with places. Mr P refused the offer.
19. He unsuccessfully appealed the School’s decision to an independent appeal panel. Mr P was unhappy with how the panel considered and decided his appeal. He argued it failed to follow procedure or consider it properly.
20. Before the hearing, the School sent appeal documents to Mr P including one which explained the procedure at individual appeals. This said the School would be represented by an officer who would be present while he was present. It explained the procedure at the hearing which included the presenting officer attending and presenting the case for the School. Mr P would then have the chance to question this officer as would the panel. The presenting officer could also question Mr P about his submissions.
21. The School sent written submissions to the panel. This explained: there were 166 in Year 7 while the PAN was 165; there had been a reduction in staff; the number of children on the roll with special educational needs; the strain on specialist accommodation for subjects like Science, for example, which needed to keep within agreed limits for health and safety reasons; the impact on the curriculum with larger classes.
22. The minutes for the panel meeting show Mr P and his wife attended the hearing. No representative (the presenting officer) from the School attended. The minutes record ‘No representative in attendance - school confirmed to be heard in absence and based on written statement provided’. They also recorded the parents having no questions of the School as they had visited it, spoken to staff on several occasions, and understood the situation.
23. The minutes listed 19 questions the panel would have asked the School had it sent a presenting officer. Some were about its written submissions about the Special Educational Needs and Disability numbers at the School and whether this meant extra adults in the classroom which could place a strain on space. Others were about whether there were any specific health and safety issues around the school, funding, what category his son was under the School’s oversubscription criteria, and would he have received a place had the application been on time.
24. They also record the panel asking questions about Mr P and the allocated school. He explained his son could not use two buses to get to it and his wife does not drive. Mr P works away from home for several days a week.
25. The panel decided the admission criteria was applied according to the published admission arrangements which were lawful. The panel considered the submissions put forward by Mr P but decided the School’s case outweighed them. It noted the journey to the allocated school was not unreasonable and while both parents worked, this was not given significant weight as this was true for many families.
26. Two days later, the Clerk to the panel sent Mr P a letter with the panel’s decision on the appeal. This explained the panel was satisfied under the first stage of the hearing and moved on to the second stage. This involved balancing the prejudice caused to the School by a further admission against the case made by Mr P. The letter repeated many of the points the School raised in its written submissions.
27. I considered the comments received in response to my enquiries on this complaint from the clerk, the panel members, and the School.
28. The School said it was common practice for the panel to outline the questions and any points of clarification they would have raised with the presenting officer. It allows parents to be aware of the questions and possibly prompt them to raise questions of their own. The panel regularly took appeals for this school and so were familiar with the challenges it faced. The panel would have explored his son’s ranking under the admission criteria but, recognised this was a very late application and were satisfied the admissions process was correctly followed.

My findings

29. I make the following findings on this complaint:
1. There was no record showing the School contacted the panel about its decision not to send a presenting officer to the hearing.
2. While the panel members and the clerk said they were aware of the School’s decision, there was no record showing the panel considered this and decided the hearing could continue because it would not place Mr P at a disadvantage. There was no record showing how the panel reached this conclusion or what factors it took in to account. This was fault.
3. There was no record of the panel or the clerk explaining to Mr P at, or before the hearing, that there would be no presenting officer from the School. Nor was there any record of his response to this information. This was fault.
4. I am not satisfied these failings caused Mr P an injustice. This was because the record shows he said he had no questions of the School anyway.
5. The minutes show the panel had several questions for the presenting officer had one attended. I noted the School’s reason for the panel outlining the questions and clarification requests at the hearing, which are shown in the minutes.
6. Despite what the School said, the perception left is of the panel going on to make a decision on this appeal despite not having the answers to the questions they would have asked. Neither the minutes nor the decision letter explained how the panel dealt with the lack of answers to the questions they had. This failure amounts to fault.
7. When considering the injustice this caused, I took account of the nature of the questions the panel would have asked, the submissions from Mr P, and him making a very late application. On balance, I am not satisfied the decision on the appeal would have been any different had the panel addressed not having the answers to these questions. This is because I consider it unlikely to have altered the outcome of the appeal. This is mainly because of the strength of Mr P’s case and the information sought was unlikely to have tipped the balance in his favour when weighing prejudice against his submissions.
8. The School explained the panel was aware of the challenges it faced from previous appeals. This was not recorded in the minutes as information the panel took into account, and to which Mr P was not aware of, so I have given this comment little weight.
9. The panel had to balance the prejudice caused by admitting his son to the School, which was already over its PAN, against Mr P’s case for admission. His case included: his son being Catholic; they had returned to the UK late after living abroad for several years; the School being close to his home; his son was unsettled and frightened to travel to a school on his own too far away.
10. The minutes record the panel deciding, ‘Prejudice proven from school – already over PAN and stated significant needs’. It noted, ‘Schools case outweighs parent case'. In reaching this view, it considered those already on the roll, and the School’s overstretched resources. His son’s journey to the allocated school was not considered to be unreasonable and little weight was given to his parents working.
11. Simply stating the School was already over the PAN would not have been enough to show the prejudice to the School outweighed Mr P’s case for his son’s admission there. The minutes do go on to record there was some consideration of the prejudice the School would suffer, although this was not set out in any detail. On balance, I found no fault on this part of his complaint.

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Final decision

30. I found fault on Mr P’s complaint against the School which caused no injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman