Summary: We found fault on Mr M’s complaint about the appeal panel failing to properly consider his appeal against the admission authority’s decision to refuse his son a place at the preferred school. While the panel failed to find the admission arrangements did not comply with admission law, despite a decision from the Office of the School Adjudicator, this caused no injustice.

The complaint

1. Mr M complains about the appeal panel’s failure to properly consider his appeal against the admission authority’s decision to refuse his son a Year 7 place at the preferred school: as a result, he is not going to a school best suited to his needs.

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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)

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School admission and appeals: co-ordinated admission arrangements

4. Statutory guidance about school admissions and appeals can be found in The School Admissions Code and School Admission Appeals Code (the Code). Both are published by the Department for Education. 
5. All schools must have a set of admission arrangements containing oversubscription criteria. The school’s admission authority uses these to decide which children will receive an offer of a place if there are more applications than places available. The school’s admission authority sets the admission arrangements.  
6. A school’s admission arrangements must also contain a Published Admission Number. This is the number of places the school will offer at each point of entry. The point of entry is when the school normally admits children.

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School Admission Appeals Code (October 2022)

7. 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 and in accordance with the specified timetable. (paragraph 2.9)
8. The clerk must send all the papers required for the hearing to both parties and members of the panel a reasonable time before the date of the hearing. (paragraph 2.10)
9. The panel must ensure the decision sent following the hearing is easily comprehensible so the parties can understand the basis of the decision. The decision letter must contain a summary of relevant factors raised by the parties and considered by the panel. It must give clear reasons for the panel’s decision, including how and why any issues of fact or law were decided by the panel during the hearing. (paragraph 2.28)
10. 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)
11. Under this Code, panels must follow the two-stage decision making process for all appeals except for infant class size appeals (paragraph 3.1 to 3.10):

First Stage: examining the decision to refuse admission:

12. The panel must consider the following for each child subject to an appeal:
1. whether the admission arrangements complied with the mandatory requirements of the School Admissions Code and Part 3 of the School Standards and Framework Act 1998; and
2. whether the admission arrangements were correctly and impartially applied in the case in question.
13. The panel must uphold the appeal at first stage where:
1. it finds the admission arrangements did not comply with admissions law or had not been correctly and impartially applied, and the child would have been offered a place if the arrangements had complied, or had been correctly and impartially applied; or
2. it finds the admission of additional children would not prejudice the provision of efficient education or efficient use of resources. (paragraph 3.5)
14. In multiple appeals, where a number of children would have been offered a place, and to admit that number would seriously prejudice the provision of efficient education or efficient use of resources, the panel must proceed to the second stage. (paragraph 3.6)
15. The panel must also go the second stage where: it finds the admission arrangements complied with admissions law and that they were correctly and impartially applied to the child; or finds the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that if they had, and been correctly and impartially applied, the child would not have been offered a place; and it finds the admission of further children would prejudice the provision of efficient education or efficient use of resources. (paragraph 3.7)

Second Stage: balancing the arguments:

16. The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted to the school. It must take account of the appellant’s reasons for expressing a preference for the school, including what the school can offer the child that the allocated or other schools cannot. If the panel considers the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
17. It must consider the impact on the school of admitting further children.

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School Admission Code (September 2021)

18. The admission authority for a selective school must publish the entry requirements for a selective place and the process for such selection in their admission arrangements. (paragraph 1.17)
19. Tests for all forms of selection must be clear, objective, and give an accurate reflection of the child’s ability or aptitude. It is for the admission authority to decide the content of the test, providing it is a true test of aptitude or ability. (paragraph 1.31)
20. It must ensure tests for aptitude in a particular subject are designed to test only for aptitude in the subject concerned and not ability. (paragraph 1.32)

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School Admission Procedures for September 2023

21. Admission to the school will be awarded based on academic ability determined by performance in the school’s selection tests which are compulsory for all applicants. After one round of tests, applicants are ranked in order of their standardised test score and places allocated according to its Oversubscription Criteria.
22. The Published Admission Number is 192.
23. The Oversubscription Criteria for Year 7 entry is:

• Looked after children;
• Pupil premium: up to 20 applicants based on pupil premium who can provide written confirmation from the primary school that they are in receipt of free school meals;
• Exceptional Musical Talent: up to 20 applicants who show exceptional musical talent will be considered for a music place if they are ranked within the top 900 applicants in the Maths and Verbal reasoning test. Exceptional Musical Talent can be shown on any instrument/s (including voice) based on assessment with a recognised board. Usually, they should have achieved at least grade 5 distinction, but this will depend on the instrument as well as previous opportunity and experience. The school may audition no more than 32 applicants to gauge musicality, but the number admitted under this criterion is capped at 20;
• Applicant’s resident in the Inner Area in rank order; and
• Applicant’s resident outside the Inner Area in rank order.

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How I considered this complaint

24. I considered all the information Mr M sent, the notes I made of our telephone conversation, and the school’s response to my enquiries. I sent a copy of my draft decision to Mr M and the school. I considered Mr M’s response.

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What I found

25. Between May and July 2022, those wishing for a Year 7 place at the school for September 2023 could submit their application.
26. The school’s admission criteria said the Supplementary Information Form (SIF) would only be available from 3 May to 16 June. Applicants needed to complete this to sit the school’s compulsory assessment tests, which were sat in September. It also said those wishing to apply based on Exceptional Musical Talent will need to complete a separate music form available during open evenings and its website.
27. Mr M applied for his son to attend this, his preferred school.
28. In May, the school sent an email to Mr M. This contained Musical Guidance Notes for music school applicants under ‘Exceptional Musical Talent and Achievement’. It said, ‘We may also consider the potential for the musician to be involved in ensemble music-making at the school’ (the ‘ensemble consideration’).
29. The school received 2,489 applications for 192 places in Year 7.
30. Having passed his assessment tests, his son was invited to an audition in October. I have seen a document headed ‘Music Application for 2023’ which is dated 11 October 2022. This is the music report given to the panel, but was not sent to Mr M. This referred to auditions held on 10 and 11 October. It said, ‘With the extra-curricular musical life of the school in mind, where applicants have shown similar ability on piano versus a more ensemble-orientated instrument, we have prioritised the latter’. It also shows those candidates, ranked in order from 1 to 20, who were offered a place under the ‘Exceptional Musical Talent and Achievement’ criterion, as well as those who were not offered a place.
31. Following this audition, the admission authority refused his son a place. Mr M made a complaint to the Office of the Schools Adjudicator (OSA) about the admission authority’s admission criteria, and how it was applied, claiming it breached the School Admission Code.
32. Mr M also appealed this decision to an independent appeal panel. He argued: the ensemble consideration puts children like his son, who only play piano, at a disadvantage; it was not set out in the admission arrangements; the admission arrangements do not say certain instruments are preferred over other instruments; of four children who auditioned with piano as their only instrument, none were offered a place, despite having higher grades, on average, than those who only played a different instrument.
33. There were ten appeals and all, including Mr M’s, were refused. When refusing his appeal, the panel explained:

• First stage hearing: the panel found the published admission arrangements complied with the School Admission Code and the law. In addition, it found they were correctly and impartially applied to his application. The reason given was for health and safety, and pressures on teachers and resources.
• Second stage hearing: It noted the findings of the OSA, but decided the school admissions and the auditions were done consistently in line with the School Admission Code and its own admission arrangements. They considered the criteria were sufficiently clear to applicants. It said it tested if there was unfair bias and inconsistency in favouring ensemble instruments over pianists. How they did this test was not explained. It was satisfied his reasons for admitting his son did not outweigh the prejudice that would be caused to the school by his admission.

34. Had this ensemble consideration not been considered, Mr M argued his son would have received a place as he had one of the highest grades/marks of this cohort. He also claimed if the school published information about the ensemble consideration sooner, they would have re-considered the decision to end trumpet lessons in 2021.
35. Mr M complained to us about the failure to follow proper procedures during the appeal process. He complained:

• he was not sent a copy of the music audition report which the school had sent to the panel as late evidence. Information from the report was read out during the hearing;
• about unclear admission criteria which was not followed. He believes the panel failed to properly consider whether the admission arrangements complied with the Code; and
• the admission process wrongly took account of factors not set out in the published admission arrangements.

36. The OSA, before the hearing, told the school what it would find the following:
1. Admissions arrangements in the School Admission Code means, ‘The overall procedure, practices and oversubscription criteria used in deciding the allocation of school places including any device or means used to determine whether a school place is to be offered.’ This was relevant as the admission authority failed to publish the SIF and the Musical Guidance Notes alongside the admission arrangements. They were not published until May 2023.
2. As a grammar school, it could select by ability or, ability in a particular subject (section 39 Education and Inspection Act 2006). The admission arrangements were unclear about Exceptional Musical Talent. The additional information the school sent about how the selection process worked needed to be in the admission arrangements. As it was not in the published admission arrangements, the assessment process was not clear to parents. While ‘talent’ suggests aptitude, the arrangements also refer to grades and achievement which suggests ability.
3. The information also introduced issues it took into account which were not based on aptitude or ability such as, ‘the potential for the musician to be involved in ensemble music making at the school’. This is in the Musical Guidance Notes emailed to applicants but was not in the admission arrangements. This impacted on some students. Top graded pianists did not get a school place because of a surplus of high graded piano players in favour of lower graded instruments, such as the clarinet or oboe for example. This needed to be clearly set out in the published admission arrangements. This was a consideration the school should not have taken into account as it was not part of the admission arrangements. Selection other than by ability or aptitude is not allowed under the School Admission Code.
4. The school had told the OSA it does consider the potential to be involved in ensemble music making and set out the order of priority for families of instruments which included: 1. Brass. 2. Woodwind, 3. Strings, 4. Piano and Percussion, 6. Voice.
37. The school agreed to update its admission criteria for the following year because of the bias against pianists. It will add a paragraph explaining the school often receives high numbers of applications from pianists so may need to consider less commonly played instruments and the potential for the musician to be involved in ensemble music-making at the school.

My findings

38. I make the following findings on this complaint:
1. Information was presented to the panel at the hearing which should have been sent to Mr M in advance of it. There is nothing to show the panel considered adjourning the hearing to allow appellants the chance to read and consider this information or asked appellants if they needed one. This is fault and breached the Code. (paragraph 2.10)
2. I note the decision letter states the panel was satisfied the admission arrangements complied with the School Admission Code and the law under the first stage of the hearing and explained why. There is nothing in the clerk’s notes of the hearing which shows the reasons set out in the letter. This is fault and breached the Code. (paragraph 2.29)
3. While the decision letter explained the panel was satisfied the admission authority was consistent in its judgement and application of the School Admission Code and admission arrangements, it failed to fully explain exactly how the panel reached this decision. Although it said the panel tested for unfair bias and inconsistency favouring ensemble instruments, it did not explain how this was done. This was an important and central argument made by Mr M in his appeal and there is nothing to show it was properly considered. Nor was this shown in the clerk’s notes of the hearing. I consider this failure breaches the Code. (paragraph 2.28 and 2.29)
4. The clerk’s minutes of the hearing do not explain how the panel did this. In fact, the clerk’s record noted the majority of the panel could not form a judgement on whether Mr M’s son was discriminated against as a pianist ‘without seeing all the other 31 assessments for the EMT’. This casts doubt on what the letter said about the panel testing for bias and inconsistency.
5. On balance, I am satisfied the panel failed to properly consider the evidence from the OSA and Mr M. The crucial evidence was from the OSA which found the admission arrangements did not comply with the School Admissions Code and the law as they were unclear for parents as they introduced additional information.
6. At this point, had the panel considered it properly, it would then have gone on to decide whether Mr M’s son would have received a place if arrangements had complied, or been correctly and impartially applied.
7. Having read the audition notes for all the candidates, it is possible more than one child might have been offered a place had the arrangements been complied with or been correctly and impartially applied. I conclude this because the audition notes show:

• none of the solo piano playing candidates were offered places even though two scored higher in the audition tests than all the four solo non-piano candidates who were offered places.
• all four of the solo piano candidates scored higher than the two lowest non-piano candidates who were offered places.
• one of the three solo non-piano playing candidates was offered a place despite having the one of the lowest test scores of the auditions.
8. Under the Code (paragraph 3.6), the panel would have had to move to the second stage hearing. This is because, on balance, it is likely to have found admitting more children would have seriously prejudiced the provision of efficient education, or efficient use of resources. I reach this conclusion because of what it said in the decision letter to Mr M about finding prejudice.
9. On balance, I am satisfied that had it gone to the second stage, which is what had happened on Mr M’s appeal anyway, it was unlikely the outcome at this stage would have been any different to what happened. This is because Mr M’s submissions to the panel were mainly about the admission process and its failings, all of which were first stage considerations for the panel.
10. This means while I make a finding of fault, I am not satisfied this, or any of the other fault found, caused Mr M a significant injustice.

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Final decision

39. I found fault on Mr M’s complaint against the admission authority which did not cause him an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman