The Ombudsman's final decision
Summary: There was no fault in how an independent appeal panel considered and refused a school admissions appeal. We have therefore completed our investigation.
The complaint
I will refer to the complainant as Mrs G.
Mrs G complains about the way an independent appeal panel (IAP) considered her appeal against the school’s refusal of a place for her daughter, F. Specifically, she says the IAP’s decision to consider appeals solely on the basis of written submissions meant she could not properly present F’s case.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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 reviewed the full range of documentation relating to the appeal process in general, and F’s appeal in particular. I also asked the school to provide more information about the IAP’s decision to hold ‘written submissions only’ appeals.
I also shared a draft copy of this decision with each party for their comments.
What I found
Although Maidstone Grammar School for Girls acts its own admission authority, it relies on Kent County Council to provide IAPs for its appeals process. The information I received in response to my enquiries on this complaint came direct from the Council, and for this reason, I will refer to the Council where appropriate in the following sections.
However, despite this, the school retains responsibility for its admissions and appeals; and so the findings I make in this decision statement will be recorded against the school, not the Council.
School admission appeals – arrangements for appeal hearings Statutory guidance about school admissions and appeals is in the School Admissions Code and School Admission Appeals Code, published by the Department for Education.
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’.
I outline below key points from the School Admissions Code and School Admission Appeals Code. I have identified where the emergency regulations introduced a temporary change to the admission appeal rules.
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.
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.
The School Admission Appeals Code says appeal panels must allow appellants the opportunity to appear in person and present their case. The emergency guidance in 2020 stated that face-to-face hearings should not take place, and appellants should be offered a hearing by telephone or video conference wherever possible.
The appeal panel could decide to hold the hearing remotely if it was 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.
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.
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 the following process: The admission authority’s representative and the parent should see each other’s written submission in advance and have an opportunity to send in questions. Both parties should be able to reply with answers to the questions and any further points they wish to make. They should see each other’s answers and have a chance to submit additional evidence if they wish, by a given deadline.
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 set out in the Appeals Code.
In September 2021 the Government amended the guidance to say; “Face-to-face appeal hearings can now take place where the admission authority considers it is safe to do so, unless a participant needs to self-isolate after a positive test or Government guidelines indicate it is not safe to do so.”
In line with the temporary regulations, where a face-to-face appeal is not possible for a reason related to the incidence or transmission of COVID-19, the appellant should be offered a hearing by telephone or video conference wherever possible.”
The guidance said admission authorities would need to review any arrangements they had put in place to ensure they comply with the temporary regulations.
The same conditions for deciding to hold remote hearings and the suggested process for written submission appeals applied as in the original guidance.
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.
School admission appeals – decision-making 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.
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.
In multiple appeals, the panel must not compare the individual cases when deciding whether an appellant’s case outweighs the prejudice to the school. However, where the panel finds there are more cases which outweigh prejudice than the school can admit, it must then compare the cases and uphold those with the strongest case for admission. Where a certain number of children could be admitted without causing prejudice, the panel must uphold the appeals of at least that number of children.
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.
Admission to grammar school Children who wish to be considered for entrance to grammar school sit the ‘Kent Test’. Children receive three standardised scores – one for English, one for maths and one for reasoning, and a total score. For admission to grammar school in 2022, children needed a total score of 332 or more, with a score of 109 or more in each of the three tests. Approximately 20% of children are identified as suitable for grammar school through the test.
A further 5% of children are identified as suitable for grammar school through the Head Teacher Assessment Panel. The panel considers children who did not achieve the required score in the Kent Test but whose primary school believes they are of grammar school ability. Information provided by the Council suggests there may be a range of reasons for unrepresentative scores in the test, including extended personal illness, social or emotional problems affecting learning in the past year and having English as an additional language. A child’s school can ask for the child to be assessed by the panel and must provide evidence to support their case, including history of scores from standardised tests and relevant schoolwork.
The school in this case is a grammar school and admits children who reach the required scores in the Kent Test. The School Admission Appeals Code says panels may be asked to consider an appeal where the appellant believes the child did not perform at their best on the day of the test. In those cases, the panel must only uphold the appeal if: there is evidence to show the child is of the required academic standard. This may be in the form of school reports of test results or a supporting letter from their current school; and the appellant’s arguments outweigh the admission authority’s case that admitting further children would cause prejudice.
Council’s approach to appeals As I have mentioned, the school relies on the Council to provide IAPs for its appeals. I asked the school to explain how the IAPs had decided what arrangements to make for appeals, and the school referred my question to the Council, which responded to me directly to provide the following information.
The Council said it had reviewed its approach to appeals after the Government announced in February 2021 that it would be extending the amended arrangements for holding appeals. It considered the following factors: Almost a third of panel members had declined to participate in appeals in the 2020-2021 admissions round and it was concerned this could increase further.
It was unclear if panel members and clerks would be eligible for vaccination against COVID-19 in time for the main appeals round.
Officers continued to work from home and a return to the office was unlikely in the coming months.
Schools were facing pressure because of ongoing closures relating to COVID-19.
It had trialled the use of video-conferencing for in-year appeals but found panels were limited to hearing seven appeals a day (compared with 12 to 16 appeals a day when carried out face-to-face). Panel members had told the Council they would not be willing to conduct appeals this way in the main appeals round.
The Council expected to receive over 2,000 appeals and it would not be possible to complete them all virtually in time for the new school term.
The Council said it had considered the impact of following the process outlined in paragraph 15. It said the availability of Council officers and school staff to carry out the process would present difficulties. However, its main concern was the availability of panel members. It said even if the Council and schools could support an additional questioning stage, it had insufficient panel member capacity to hear those appeals in a timely way. It said this would mean appeals continuing into the next academic year. The Council considered such a delay would cause a greater disadvantage to appellants than failing to include a questioning stage as part of the appeal. It decided to continue with appeals based on written submissions.
At the same time the Council introduced some changes to its appeals process. Schools would publish their defence statement and accompanying documentation on their website on national offer day. Parents would be able to address any key points in the school’s defence in their appeal submission. A frequently asked questions (FAQ) document would accompany the school’s defence statement, which explained the appeal process, and included key questions a panel would usually ask a school and a parent. Parents who were unable to provide a written statement could ask for the appeal to be heard in a different format.
The Council said introducing these steps meant parents would have all relevant information available to them to include in their appeal submission. It believed it offered the best opportunity to hear all appeals in a fair and transparent way before the start of the new school year.
The Council reviewed the temporary arrangements in September, October and November 2021, in light of national COVID-19 infection rates and restrictions applying at each point. In January 2022 the Council reviewed the position again to decide on the appeal arrangements for the 2022-2023 academic year admission round due to start in March. It said it noted that some of the same issues applied as in the previous year’s appeals: There was still a high volume of appeals, over 2,000.
A high percentage of panel members, who are volunteers, met the definition of being at risk from COVID-19 and the Council had a duty to them and all the parties to keep them safe.
Any process of virtual hearings had to be consistent and fair to all. However the lack of consistent video equipment available for all appellants meant that some hearings would have to take place by video call and others by telephone. This would potentially disadvantage different parents in different ways.
The Council explained it had also considered other current factors: The arrival of the Omicron variant which was widespread and highly contagious, and the self-isolation rules that applied.
Despite some restrictions being lifted, national guidance was still to work from home where possible.
The Council’s conclusion was that it should continue to hold main round appeal hearings for 2022-2023 as ‘written submissions only’, unless adjustments were needed in an individual case because of a parent’s disability. There would be the option of remote hearings for in-year appeals when there would not be the same number of hearings needed. The Council said it considered the changes it had made to the process the previous year would give parents the chance to prepare their cases more effectively.
The Council reviewed the position again in March and May 2022. In March infection rates remained high and the Council decided paper-based appeals were the only feasible option. In May infection rates had reduced. But the Council considered, given the number of panel members available and the pressures schools were already facing due to COVID-19, it would not be possible to convert appeals that had already been arranged to virtual ones and still meet required deadlines. The Council decided the rationale for ‘written submissions only’ appeals still applied.
F’s application and appeal Mrs G applied for F to enter Year 7 at the school in September 2022. However, F’s results in the Kent Test were 100 in maths, 104 in English and 97 in reasoning. This meant she did not meet the required minimum score of 109 in any of the three tests, and was also below the required aggregate score of 332.
Mrs G submitted an appeal.
The IAP followed the appeal process set out in the previous section. It noted the school had offered 129 places against its published admissions number of 180, meaning it could accept a further 51 pupils without prejudice to the education of existing pupils.
The IAP heard 79 appeals for children who had not met the required standard on the Kent Test. It upheld appeals in 39 cases, where it concluded the evidence showed the child was suitable to attend a grammar school.
However, the IAP refused F’s appeal. In its decision letter to Mrs G, it acknowledged F was supported by her primary school, which had explained F’s academic strengths. But the panel said it was concerned her test scores fell considerably short of required standard, and on this basis was concerned she would be unable to keep up with the academic rigour of a grammar school.
Mrs G then made a complaint to the Ombudsman.
Analysis The Ombudsman’s role is to review the way authorities – in this case, the IAP acting on behalf of the school – have made their decisions. We might criticise an authority if, for example, it has not followed an appropriate procedure, not taken account of relevant information, or failed to properly explain a decision it has made. We call this ‘administrative fault’.
However, we do not provide a right of appeal against authorities’ decisions, make decisions on their behalf, or seek to replace their judgement with our own. If we do not find fault in the way the authority has made its decision, we cannot criticise the outcome, no matter how strongly someone might feel it is wrong. We do not uphold complaints simply because someone disagrees with an authority’s decision.
In this case, Mrs G considers the IAP’s handling of F’s appeal was unfair, because she was unable to present F’s case properly without a face-to-face hearing. Mrs G has explained that F was significantly affected by school closures during the COVID-19 pandemic, and feels this contributed to her lower scores on the test.
As I have noted, the Coronavirus regulations brought in temporary changes to the way schools appeals were heard. The regulations said that, where face-to-face appeals were not considered practical or sensible, IAPs could decide to hold hearings by phone or video-conferencing instead; or, if they did not consider this practical either, by written submissions only.
The Council has explained to us, in detail, the reason it decided it was appropriate to maintain a ‘written submissions only’ appeals process. It says it had particular concerns about the availability of panel members, the volume of appeals to be heard, and the number which each panel could hear in a day, and the inconsistency in the type of technology available to parents. It therefore concluded that, for reasons of practicability and fairness, it would hold all appeals this way, except where the appellant needed reasonable adjustments to be made.
And, at stage 1 of the appeal, the IAP recorded its agreement with this arrangement.
There were decisions the Council, and by extension the IAP, were entitled to make, and I have no grounds to criticise their judgement here. As I explained, it is not for me to make my own decision what arrangement should have been made.
I acknowledge Mrs G would prefer to have presented F’s appeal face-to-face to the IAP; and of course, under the traditional appeal process, she would have been able to do so. But I cannot agree this was unfair, because all appeals – for all schools in the county – were held in the same way.
There is also nothing in the information I have seen to suggest the panel did not understand Mrs G’s grounds of appeal, or that it failed to take account of any evidence she submitted. Rather, it simply decided F’s case was not strong enough for it to disregard her test results. Again, this was a decision the IAP was entitled to make, and there is no evidence of fault in how it did so.
Final decision
I have completed my investigation with a finding of no fault.
Investigator's decision on behalf of the Ombudsman