Millbank Tower Millbank London SW1P 4QP

Report

on an investigation into

complaint no05/A/02446 against

the London Borough of Redbridge

8 December 2005

Millbank Tower Millbank London SW1P 4QP

Investigation into complaint no 05/A/02446

against the London Borough of Redbridge

Table of ContentsPage

Report Summary

Introduction

Legal and Administrative Background

Investigation

Conclusion

Report Summary

Subject

Education admission appeals

This Report concerns complaints from Ms Ferguson that there was fault by the Council in relation to the way it administered her appeal against the decision not to offer a place for her son at her preferred school for entry in September 2005.

Finding

I find that there was maladministration by the Council since it did not arrange for an appeal to be heard within thirty school days of her request, as required by the statutory Code of Practice. Although an appeal was heard, the delay caused injustice to her and to her son

Recommended remedy

The Council has agreed to

a)revise the booklet about how to apply for a school place, to include a clear statement of the Council’s policy to not consider repeat applications in the same academic year except where there is a material change of circumstances

b)provide an apology to Ms Ferguson for the distress caused by the unnecessary delay and pay her compensation of £200 for this

The Council accepts that appeals should be heard within 30 days but has not said what steps it will take to ensure this happens. I recommend that it revise its appeals procedure, to ensure that appeals are heard within the time limit in the Code of Practice.

05A02446

Introduction

Ms Ferguson complained to me that when she tried to appeal against the Council’s decision not to offer a place for her son at her preferred school, it failed to deal with her request properly; she requested an appeal on 20 April 2005 but the appeal was not arranged until September. She complains that the delay of almost five months was unreasonable, particularly since this meant the appeal would take place after the start of the new school year.
The law generally requires me to report without naming or identifying individuals. The names used in this report are therefore not the real names of those concerned. A copy of a draft of this report and conclusions was provided to the Council and the complainant, and where appropriate their comments are reflected in the text.

Legal and Administrative Background

The School Standards and Framework Act 1998 governs the admission of pupils to schools. The admissions authorityis responsible for the task of allocating places. In some cases (such as voluntary aided faith schools) the admissions authority is the school itself, in the case of community schools it is the Council(also referred to as the ‘Local Education Authority’ or ‘LEA’). Each school has an admissions number, which is set at a figure that has regard to the school’s capacity to accommodate pupils. Admissions authorities are free (within certain limits) to set their own admissions criteria, to be applied where there are more applications to a particular school than there are places available.
There is a statutory Code of Practice on admissions, which gives guidance to be followed in dealing with school admissions. Councilsand other admissions authorities must have regard to the Code of Practice.[1]

The Code of Practice on School Admissions Appeals

When applying for a school place, parents are entitled to express a preference as to which schools they would like their child to attend. Applicants who are unsuccessful in applying for a school place can appeal to an independent appeal panel, set up by the admission authority.[2] There is a statutory Code for appeals. Admissions authorities who are responsible for arranging appeals must comply with the legislation and have regard to the Code of Practice,[3]whichexplains the procedures that should be adopted in respect of appeals.
The Code provides that LEAs must make arrangements enabling parents to appeal against:

“Any decision made by or on behalf of the LEA as to the school at which education is to be provided for the child…”

and says

“Appeal hearings should be held within a reasonable time – normally within 30 school days of an appeal being made or, for appeals made during the normal admissions round, within 30 school days of the specified closing date for receipt of appeals.”

If the LEA’s policy is not to consider repeat applications in the same academic year, unless there has been a material change in circumstances, this policy must be stated clearly in the published admission arrangements.
The Code sets out the process to be undertaken by the appeal panel. It must consider

whether the School’s admission arrangements were applied correctly; if not, whether this led to the child being refused a place
whether prejudice would be caused to the School if the child were admitted;
the balancing stage, where the panel exercises its discretion, balancing the prejudice to the school of admitting the child against the prejudice to the child of not offering a place.

If it is clear that the child would have been admitted if the admission arrangements had been applied properly, the panel must uphold the appeal.

The Council’s Procedures

The Council provides two booklets to parents. One gives details of how to apply for a school place and explains the Council’s oversubscription criteria for its schools. The second gives details of its appeals procedures, explaining

how to appeal, and what sort of information parents should provide;
what information the Council will provide to them and to the appeal panel before the hearing;
what will happen at the appeal;
what happens after the appeal; and
that it is not normally possible to appeal for the same school again until the next academic year

The booklet explaining how to apply for a school place does not state the Council’s policy not to consider repeat applications in the same academic year unless there is a material change in circumstances(though this is stated on its website).

Investigation

Background

In 2004, Ms Ferguson applied to the Council for a place for her son to start secondary school, in Year 7,in September that year, stating a preference for the Keane School. The school was oversubscribed, so the admissions criteria were used to determine who should be offered places. Her application was unsuccessful, and her son was offered a placeat another school. She appealed, but was unsuccessful. She commenced proceedings seeking a Judicial Review of the Appeal Panel’s decision, but did not pursue them.
Her son’s name was placed on the waiting list for Keane School, and she kept in touch with the Council periodically, seeking news of any progress. She says that in March 2005 the Council suggested she appeal again, for her son to be admitted in September 2005 to Year 8.
Ms Ferguson told the Council on 20 April 2005 that she wanted to make a fresh appeal, for a Year 8 place. The Council sent her an appeal form, and its booklet about appeals, and on27 April she lodged the completed appeal form, setting out detailed reasons why she thought her son should be offered a place at her preferredschool.

Ms Ferguson’s appeal

The Council told Ms Ferguson that her appeal could not be processed, “since only one appeal can be heard per academic year” and her appeal for the current academic year had been heard in June 2004. Therefore, her appeal would be scheduled for the new academic year in September 2005.
Ms Ferguson questioned this decision, saying it was now a year since her previous appeal, and any appeal should be heard by the end of July; it made no sense to delay it until after the admission date in September.
The Council refused to change its decision, insisting that another appeal could only be heard if there had been a material change in her circumstances, which was not the case. It might, however, be possible to consider her case under the Council’s procedure for exceptional medical or psychological grounds, in view of information she had provided about her son’s health. On 15 June 2005 Ms Ferguson applied under this procedure, with further information about her son, supported by her GP.
Ms Ferguson was unhappy with the delay in arranging the appeal and complained to me. Meanwhile, her appeal was listed for hearing on 15 September 2005. The application under exceptional medical grounds was considered but refused.
Ms Ferguson’s appeal was heard on 15 September.She did not attend the hearing, but asked for it to be considered on the papers, and said which documents in particular she would like it to consider. The appeal failed. The decision letter set out in detail the information taken into account and the reasons for the decision.

Ms Ferguson’s comments

Ms Ferguson says

the Council’s procedures are unreasonable, and it makes no sense to delay appeals until September; appeals should be heard before the end of the summer holiday, so that applicants know which school their child will be attending in September
the Council failed to provide adequate information; for example its booklet on appeals did not explain the circumstances in which a second appeal would be heard before the beginning of the next academic year
the Council included in the papers considered by the Panel copies of correspondence about irrelevant issues (relating to her son’s schooling in the meantime), which may have prejudiced the Panel
the Council’s response to her complaint was unhelpful and misleading
that she is not satisfied with the Appeal Panel’s decision because of the weight it would inevitably have given to an educational psychologist’s assessment that there were no exceptional grounds which required her son’s admission to the School. Ms Ferguson considers that the Panel would have felt unable to come to its own view in such circumstances.

The Council’s comments

The Council initially told me that its appeal procedures had been approved by the Secretary of State, but later explained there had been a misunderstanding and it did not have any specific confirmation from the Secretary of State, but it did comply with the guidance laid down. It also said initially that the appeal would be heard early in September, before the start of term, but later confirmed it would be heard on 15 September, after the start of term. It also said:

appeals for unsuccessful applicants for places in Year 7 are held before the start of the summer holidays, so that families know which schools their children would be attending in September
the statutory guidance relates to entry in Year 7. For applications to Year 8, the situation is different; the Council does not know until the end of the summer term the expected numbers on roll for the start of the autumn term, due to movement in and out of the borough. These appeals are therefore arranged for early September, and itwas not possible to arrange MsFerguson’s appeal any earlier.
Ms Ferguson’s appeal was considered to be a second appeal for the academic year 2004/05; since she had already had an appeal for that year (in June 2004), she could not have another appeal before the end of the academic year (because there had not been any material change in circumstances), so her appeal could not be heard until September, after the start of academic year 2005/06
it tried to clarify the process in correspondence with Ms Ferguson, but these attempts were unsuccessful
it arranged for her case to be considered under its procedure for exceptional medical circumstances
no vacancies arose during the summer period, so a place could not be offered at the Keane School; an appeal was therefore arranged

In response to the draft report, the Council says:

there was no deliberate intention to provide misleading or false information to me; this happened because of a breakdown in internal communications between different Council departments
it accepts that the ‘Transfer to Secondary School’ booklet did not state that repeat applications would not be considered in the same year (though this is stated on the Council’s website). This oversight will be addressed
it was necessary to allow schools time to check numbers on roll at the beginning of September, which was the reason the appeal was scheduled for 15 September
it accepts that the Code of Practice stipulates that appeal hearings take place within 30 school days and this did not happen in Ms Ferguson’s case
it was considered Ms Ferguson had already had an appeal in relation to Year 7 and, when she appealed, there was no information as to what the situation would be in September, when her son would enter Year 8. An appeal could have been held towards the end of the summer term, which would have avoided delay (though, asno information was then available as to what the situation would be in September 2005, it might have led to inaccurate information being presented).

The Council agrees to pay compensation of £200 for the distress caused by the delay.

Conclusion

The Code of Practice is a statutory code, approved by Parliament, and the Council must have regard to it. I would expect the Council’s appeal procedures to be based on the Code; if not, the Council must be able to demonstrate that it has had proper regard to the Code, and there are reasonable grounds for departing from it.
The Council initially said it follows the Code. But the Code requires it to arrange appeals “normally within 30 school days of an appeal being made…” So in this case, the appeal should have been held within 30 school days of 27 April, which would have meant it was heard well before the end of the summer term. The Code does not only apply to applications for entry to Year 7 - it refers to any decisions about which school a child is to attend. The only distinction is that, for applications in the normal round for Year 7, appeals should be held within 30 school days of the Council’s specified closing date for receipt of appeals, whereas in all other cases it refers to 30 school days from actual receipt of an appeal.
The Council’s policy is not to consider repeat applications within the same academic year. It may have such a policy, but must state this clearly in its published admission arrangements. As it does not do so, it should not have applied this policy.
The Council said, and appears to continue to suggest, that this was a second appeal for the same school, which had to be delayed until September as it could not be heard in the same academic year as her previous appeal. That argument has no sense; her first appeal was held in June 2004, and related to entry to Year 7 in September 2004. This appeal was to be held in 2005, for entry to Year 8 in September 2005. It cannot be considered to be within the same academic year.
I have considered whether there are any reasonable grounds for the Council departing from the Code, but can see none. Initially it sought to argue that its procedures comply with the Code; it cannot be said the Council has considered the Code and decided, for some good reason, to depart from it. The reasons given for delaying appeals for Year 8 until September are not sustainable. People may move in or out of the borough, and seek to change schools, at any time. But Ms Ferguson had a right of appeal, and the Council couldnot delay that for five months just in case someone else might seek a place at the same school at some later date.
Ms Ferguson appealed in April. It should have been possible for an appeal to be held promptly, so that she would know well before the summer holiday whether her son would be able to move to the Keane School. The delay was unreasonable and entirely avoidable. It caused her and her son unnecessary distress over a period of several months.
I am concerned about the wider implications of the Council’s policy. There may have been other families in similar positions whose appeals were delayed until September, and were also left with an unnecessary period of distress and uncertainty. I am alsoparticularly concerned that in responding to this complaint the Council provided inaccurate and misleading information.
Ms Ferguson’s appeal has now been heard. She says the Panel took account of irrelevant information. But correspondence relating to admission matters and her son’s schooling was intertwined, and it would be reasonable for the Panel to see the whole picture.I do not consider it was unreasonable that the Panel had the educational psychologist’s views.The decision letter shows that the Panel’s decision was based on relevant information and gave reasons for the decision. It is not for me to review the merits of the Appeal Panel’s decision; it was for the Panel to consider the particular merits of her case. But the Council needs to take action to ensure the situation does not arise again next year, and should address the problems it caused Ms Ferguson.
The Council has agreed to

a)revise the booklet about how to apply for a school place, to include a clear statement of the Council’s policy not to consider repeat applications in the same academic year except where there is a material change of circumstances