The Ombudsman's final decision
Summary: Mrs X complains that she was denied a fair school admission appeal hearing as she did not receive emails about her appeal so did not have the opportunity to submit further information to the appeal panel. There is no evidence of fault by the School.
The complaint
Mrs X complains that she was denied a fair school admission appeal hearing as emails about her appeal went into her junk mail. As a result, she could not submit additional information to the appeal panel to show her daughter is of grammar school standard.
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) We cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (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 have: considered the complaint and the information provided by Mrs X; considered the information provided by Kent County Council on behalf of the school. This included its decision to hold the appeals by written submissions, correspondence with Mrs X, the papers submitted to the appeal panel and the clerk’s notes.
invited Mrs X and the Council to comment on the draft decision. I considered the comments received before making a final decision.
What I found
Law and guidance 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’.
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.
In September 2021 the government amended the guidance to say face to face appeal hearings could take place where the authority considers it safe to do so. Where a face to face appeal was not possible due to COVID-19 appellants should be offered a hearing by telephone or video conference wherever possible. 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 said admission authorities would need to review any arrangements they had put in place to ensure they comply with the temporary regulations. The guidance also urged admission authorities to settle appeals lodged in the main admissions round before the start of the September term wherever possible.
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.
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 where applicable, the appellant’s arguments outweigh the admission authority’s case that admitting further children would cause prejudice.
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.
The Council’s approach to appeals Maidstone Grammar School is its own admissions authority so is responsible for its appeals. However, it commissions Kent County Council to administer its appeals. I will therefore refer to the Council in this statement.
The Council has provided evidence to show how it reached its decision to hold the appeals by written submission. It held the appeals for 2021/22 by written submission due to a number of factors including the risks of COVID -19 transmission, the volume of appeals, and panel members not being willing to hold the main round of appeals by video conferencing. It reviewed the temporary arrangements in temporary arrangements in September, October and November 2021 and decided to continue to hold the appeals by written submission in light of national COVID-19 infection rates.
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 noted that some of the same issues applied as in the previous year’s appeals which included: 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 also considered other factors such as the arrival of the Omicron variant which was widespread and highly contagious, and the self-isolation rules that applied.
The Council’s conclusion was that it should continue to hold main round appeal hearings for 2022-2023 by written submissions, unless adjustments were needed in an individual case because of a parent’s disability. The Council reviewed the position again in March 2022 and decided to continue dealing with appeals by written submission. It considered this was the only feasible option to ensure appeals could be heard by the end of the summer term and the rationale for holding the appeals by written submission still applied.
What happened Mrs X applied for a place in year 7 at the school for September 2022. Y did not achieve the minimum required score of 109 in one of the tests and her aggregate score fell just below the minimum score of 332. So, the School refused a place for Y Mrs X appealed against this decision on the grounds that Y was of grammar school ability. The school’s online appeal form referred appellants to the School’s generic defence statement setting out the impact of admitting more pupils and FAQs and said appellants should read these before submitting the appeal. This was to enable appellants to address any key points in the defence statement in their appeal. The FAQs explained what supporting information appellants may wish to provide when submitting their appeal.
The school has said the online appeal form is set to send a confirmation message immediately after submission of the form and this gives an email address for appellants to send more information. Mrs X said she did not receive the confirmation email after she submitted her appeal form.
The Council sent an email to Mrs X on 4 April 2022 which provided a link to a portal for her to access the papers submitted to the appeal panel.
The appeal panel considered Mrs X’s appeal in late April 2022. The clerk’s notes show the appeal panel was not satisfied that Y was of the required academic standard. The appeal panel refused the appeal.
The Council sent an email to Mrs X with a link to the appeal panel’s decision.
Mrs X contacted the school in May 2022 as she had not received any correspondence about her appeal and wished to submit additional information. The school enquired with the Council who provided copies of the emails sent to Mrs X.
Mrs X made a complaint to the Ombudsman. In her complaint she said the emails from the Council went into her junk email folder so she did not see them. She also said they were indistinguishable from other junk emails. She was therefore unaware of the hearing date and unable to submit additional evidence to demonstrate Y was of grammar school standard. As a result Mrs X considers she did not receive a fair hearing.
Analysis I have, firstly, considered if there is evidence of fault in the Council’s decision to hold the appeals by written submission as the guidance permitted face to face appeals at this time. The Council has explained in detail why it did not consider it was appropriate to hold face to face hearings and why it did not consider it to be practical or fair to hold appeals by video or telephone conference. The Council has also demonstrated it gave appropriate consideration to the tests set out in the temporary regulations when deciding the method for holding appeals. I also note the clerk’s notes record the appeal panel’s agreement with holding the appeals by written submission. I am therefore satisfied there is no fault in how the Council reached its decision to hold the appeals by written submission and I do not have grounds to question its decision.
Mrs X did not see the Council’s emails about her appeal as they went into her junk mail folder. But there is no evidence of fault by the Council. The Council provided copies of its emails to Mrs X in response to her enquiry of the school and this email included the link to the appeal panel papers. The Council has therefore demonstrated it sent the emails to Mrs X and properly notified her of the appeal. It is unfortunate the emails went into Mrs X’s junk mail folder but this was not within the Council’s control so I cannot consider this to be fault by the Council.
Mrs X indicated on her appeal form that she would be submitting additional information and considers the Council should have chased her for this information. On balance, I do not consider this is fault. Councils deal with a large number of appeals and cannot be expected to read every appeal when arranging them.
But even if there was fault by the Council, I do not consider it prevented Mrs X from providing supporting evidence to show Y was of grammar school standard. The School’s appeal form directed appellants to read its FAQs before completing the appeal form. The FAQs explain what supporting evidence can be submitted with the appeal to show the child is of grammar school standard. I am therefore satisfied Mrs X had the opportunity to provide evidence to the appeal panel to show Y was of grammar school standard.
There is no evidence of fault in how the appeal panel considered Mrs X’s appeal. The clerk’s notes show the appeal panel considered whether Y was of grammar school standard.
Mrs X is seeking a fresh appeal. I can only recommend a fresh appeal if there is evidence of fault by the Council and that fault flawed the appeal panel’s decision. For the reasons above, I am satisfied there is no evidence of fault by the Council so I do not have grounds to recommend a fresh appeal.
Final decision
No fault.
Investigator's decision on behalf of the Ombudsman