The Ombudsman's final decision
Summary: Miss X complained that the independent appeal panel which heard her appeal for a place for her son at the School did not deal with her case fairly as it did not consider her circumstances fully. We find that the panel was at fault in failing to consider her case fully and failing to explain the reasons for its decision. The School has agreed to arrange a fresh hearing and review information it provides about one of the categories in the admission criteria.
The complaint
Miss X complained that the independent appeal panel which heard her appeal for a place for her son at the School did not deal with her case fairly as it did not consider her circumstances fully. Also the School did not explain why it was still holding hearings virtually under the temporary COVID-19 rules. As a result of the panel’s decision she says she does not know how she will get her son to and from the allocated school.
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 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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making by a council or an admission appeal panel, 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 discussed the complaint with Miss X and considered the information she provided. I considered the information the School provided, including the appeal papers and Clerk’s notes of the hearing. I considered relevant law and guidance on admission appeals.
Miss X and the School had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance 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 amended the existing regulations and remained 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.
The guidance recommended that the clerk should contact appellants as soon as possible to explain the new, temporary arrangements for appeals and to establish whether they have access to the necessary equipment for telephone or video conference.
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.
The clerk must ensure there is an accurate record of the points raised at the hearing, including the proceedings, attendance, voting and reasons for decisions. (School Admission Appeals Code paragraph 2.26) 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 including how and why any issues of fact or law were decided by the panel. (School Admission Appeals Code paragraph 2.24-2.25) School admission criteria Cardinal Heenan Catholic High School (‘the School’) has nine categories in its admission criteria. Those relevant to this complaint are: Category 2: Baptised Catholic children who have a sibling in the school at the time of admission.
Category 4: Other baptised Catholic children.
If there are more applications than places available and it is not possible to offer places for applications within any criteria, places are allocated to children who live nearest to the School.
As part of the application process parents have to send in a Supplementary Form to the School. One of the questions on the form asks if the child has a sibling who will be a student at the School in September. The notes for applicants say “if the sibling is currently in Year 11 the sibling rule will only apply if we are aware he is likely to return to our Year 12 the following September”.
What happened Miss X applied for a place for her son, D, in Year 7 at the School from September 2022. When she made the application her older child, E, was in Year 11 at the School. E was applying for sixth form and college places.
D’s application was placed in category 4 but was not successful as he lived further from the School than the last child offered a place.
Miss X appealed. In her written appeal she said E was currently attending the School and would be attending the sixth form in September 2022. Her reasons for wanting D to go to the School included the following: D was vulnerable due to “significant upset in his early life”, because of this she had tried to create a secure and stable environment for him by keeping him close to his family who live in the area near the School, and as a single parent this was her only support network, she had had to move away from the area for financial reasons and was now further from the School, but D had a strong group of friends at his primary school in that area who would all be transferring to the School, her mother who lives close to the School provided after-school childcare for D and D could walk there after school, because of Miss X’s own work pattern she would not be able to take him to and from his allocated school, and D would have difficulty with bus journey.
Miss X provided letters supporting her appeal, including one from her mother who explained the reasons for D’s ‘turbulent start in life’ and the need for stability and security.
The appeal took place in May 2022 with two separate virtual hearings, a stage one group hearing to hear the School’s case, followed by individual stage two hearings. Miss X attended both hearings.
The School’s representative explained the pressures on space and resources in the School and the difficulties that would arise if it admitted more pupils. The School also explained why it had considered D’s application under category 4, rather than 2. It said this was because E had not yet expressed an interest in staying at the sixth form and was applying for another college. At the time of the appeal hearing the School had given E a conditional offer but understood it was E’s second choice.
Miss X said when she applied for a place for D, E was intending to move to the sixth form, but now he was unsure and had conditional offers from the School and another college. Miss X also expanded on her reasons for wanting D to attend the School relating to the family’s support network in the area. She said she was trying to find accommodation in the area so she could move back there.
The appeal was unsuccessful. The appeal decision letter said the panel found the School had applied the admission arrangements correctly. It was satisfied that admitting a further pupil would cause prejudice to the School and found Miss X’s case was not strong enough to outweigh the prejudice.
Analysis – was there fault causing injustice?
Appeal arrangements I have considered first how the appeal panel decided to hold appeal hearings remotely rather than face-to-face. The Archdiocese of Liverpool arranges appeal hearings on behalf of the School. The School says the Archdiocese on its behalf decided to keep using virtual hearings in May 2022 to ensure there were enough panel members available to be able to consider all appeals in the required timescale. It said it had lost panel members during the COVID-19 pandemic and those that remained mostly did not feel comfortable attending face-to-face meetings. The experience in 2021 was that over 90% of appellants preferred virtual hearings as they were more flexible and felt more informal.
The letter to appellants explaining the appeal arrangements said: the temporary regulations which had been extended to 30 September 2022 “dispense with appeal hearings where parents attend in person”; instead parents would be offered the opportunity to access the appeal hearing remotely or have it dealt with on the written information only; in this case it would be by remote hearing; it was the panel’s responsibility to ensure that the appeal could be heard fairly with all parties able to fully present their case and hear and be heard throughout the meeting; all participants should ensure they have access to a reliable means of accessing the hearing; if that was not possible they could provide a contact number so the clerk could include them in the hearing by telephone; if the panel found it was not possible to conduct the hearing remotely it may decide to deal with the appeal using the written submissions only.
I do not find fault with the way the decision was made to continue to hear appeals remotely. The Archdiocese on behalf of the admission authority considered the matter and gave an overall decision, but made it clear it was the appeal panel’s responsibility to ensure the hearing could take place fairly. However I consider the School did not fully follow the guidance about setting up the arrangements. This is because I have not seen evidence that the clerk contacted appellants ‘as soon as possible’ to check whether they had access to the necessary equipment to attend a hearing by telephone or video conference. The letter to appellants did not invite them to say in advance of the hearing whether they had access to the right technology. The letter appears to put the onus on the parent to make sure they did and to leave it to the panel on the day to decide how to proceed. Also it was not accurate to say the regulations ‘dispensed with’ face-to-face hearings. By the time Miss X’s appeal hearing took place, face-to-face hearings were allowed if they could be held safely.
Nevertheless Miss X said the hearing went smoothly apart from at the beginning of her individual hearing when the School’s representative could not access the on-line technology and had to join by telephone. There is no evidence that holding the hearing remotely caused Miss X any disadvantage.
Appeal panel’s decision-making I have looked at the evidence of the panel’s decision-making, including the Clerk’s notes of the hearing and the panel’s deliberations, and the decision letter. The Clerk’s notes show the panel followed the two-stage process, explained the process and allowed Miss X a proper opportunity to present her case and ask and answer questions. The Chair gave her an opportunity to sum up at the end of her individual hearing and checked she had said everything she wanted to say.
The Clerk made detailed notes of the evidence and arguments Miss X and the School presented. However, I do not consider there is sufficient evidence that the panel took full account of all Miss X’s circumstances in reaching its decision. The notes of the hearing show the panel focussed its questions mainly on two issues: whether E was likely to have a place in the sixth form, and possible transport arrangements for D to other schools where he had been offered a place. The first of these issues is relevant to the question of whether D’s application was considered in the right category. The second is relevant to the balancing stage. It is for the panel to decide what information it needs and what questions to ask. But neither the notes of the panel’s decision-making stage nor the decision letter provide evidence that the panel members properly considered and weighed up all the reasons Miss X gave for her appeal against the School’s case.
The notes of the panel’s decision-making on Miss X’s appeal show the discussion concentrated solely on the question of whether E had decided to go to the sixth form. Each panel member gave their view about whether to allow the appeal based on this issue and whether D’s application had been ranked correctly. There is no evidence of any discussion about why Miss X wanted D to attend the School or any balancing of her case against the School’s.
Although the decision letter lists a number of issues Miss X raised, it gives no reasons for deciding her case did not outweigh the prejudice to the School. There is no explanation of why the panel rejected her arguments. The letter simply states: “Having carefully considered the Appellant’s case on its merits, and particularly your written and verbal submissions and taking all this into account, the Panel dismissed your appeal”.
“The Panel came to the unanimous decision that the prejudice to the school was not outweighed by the case you put forward the therefore your appeal was not upheld”.
The Code requires the panel to give reasons for its decision in such a way that the appellant can easily understand why the panel rejected the appeal. I consider the panel was at fault in failing to do so in this case. Combined with the lack of evidence that the panel considered the balancing arguments at stage two properly, I cannot be satisfied the panel considered Miss X’s appeal properly.
I do not know what the outcome would have been if the appeal panel had considered the appeal properly, but the doubt and uncertainty about the result is an injustice to Miss X.
I also consider that the information the School provides about how it decides whether a sibling is likely to be in sixth form is insufficient and unclear. This is relevant to category 2 in the admission criteria. The School has explained in response to our enquiries that it asks Year 11 pupils to complete an ‘expression of interest’ form if they wish to attend the sixth form. I have not seen evidence that this requirement is explained in the admission criteria and it is not clear if this is the only factor in deciding if an older sibling is likely to be attending sixth form when a younger sibling joins the School. In this case E decided to take up a place elsewhere and so the lack of clarity did not make a difference to the result of D’s application or appeal. But it caused confusion for Miss X and may have done so for the appeal panel as well. In my view the School should make the information about how to satisfy the conditions in category 2 clearer.
Agreed action
To remedy the injustice to Miss X and D, the School has agreed that within one month of the decision on this complaint it will offer Miss X a fresh appeal with a different panel and Clerk. It should carefully consider the proposed format of the appeal and explain its reasons. If it is going to hold the hearing virtually, it should check with Miss X that she will have access to the necessary equipment.
Within three months the School will review the information it provides about category 2 in the admission criteria. It should ensure it explains how and when it decides whether a sibling is likely to be attending the sixth form at the time of admission.
Final decision
I have found fault in the way the appeal panel reached and explained its decision on Miss X’s appeal. I am satisfied with the action the School has agreed to take to remedy the injustice caused and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman