Section D: Ombudsman and EFA
- D1. Our appeal was unsuccessful despite huge mitigating circumstances and high recommendations.We went to the ombudsman but were not successful.
- D2. What can I do if I think the panel’s 11+ appeal decision is wrong?
- D3. What about the ombudsman?
- D4. The Clerk’s Notes
- D5. Why not tape record appeal hearings so that there can be no dispute about what has been said?
- D6. Complaining about an Academy appeal
- D7. All complaints – what are the chances of success?
- D8. How to word a complaint
Section D deals with complaints about the appeal process.
When reading this section, please note that, whereas complaints relating to appeals for maintained schools will be dealt with by the Ombudsman, there are important differences where academies are concerned:
* Complaints relating to academy appeals will be dealt with, not by the Ombudsman, but by the EFA (Education Funding Agency). The Education Funding Agency took over responsibility from the YPLA on 1st April 2012 for the funding of young people’s education and training, including the increasing number of Academies.
Note: Links to external websites were correct at the time of writing, but can easily become out of date. If you find a link does not work, please feel free to let us know on the Appeals Forum here.
D1. Our appeal was unsuccessful on a score 6 points below the qualifying mark and huge mitigating circumstances, high recommendations from 2 head teachers and forecast of 3 level 5s. They tried to say to us that the mitigating circumstances hadn’t affected our son’s school work, so why had they affected his 11+ score. They also said that 3 level 5s is no indication of suitability for grammar school. It all seems to be a very unfair system and we felt that the panel had made up their mind before we went in there. We went to the ombudsman but were not successful.
I can understand the feelings expressed. Those whose appeals are not upheld (especially when they think they have a good case) find the system unfair, whereas those who succeed probably think panels are ‘the best thing since sliced bread’!
With regard to predicted level 5s, it depends on exactly what was said and by whom (panel members or the Local Authority representative). It would be fair enough to mention “they measure something different from the 11+”. In addition, level 5 does cover a wide range of achievement. Only a few heads go so far as to specify whether they anticipate 5a, 5b, or 5c, and even if they do, panels cannot be sure of the reliability of the predictions. Arguably, predicted level 5s are encouraging evidence, but on their own inconclusive.
Having attended very many appeals, I never once met a panel member who arrived with a closed mind. Of course, panel members are required to read all the papers in advance, will have noted any weak or strong points about the case, and will want to test the arguments. But what was striking was how often one could be swayed during the course of a hearing, or how agonising the final decision could be. The most unsatisfactory cases were those where parents (for whatever reason) were unable to attend.
D2. What can I do if I think the panel’s 11+ appeal decision is wrong?
The answer is, probably, not very much.
The decision of the appeal panel is meant to be binding. It is meant to be the final stage of the process.
D3. What about the ombudsman?
i. The Local Government Ombudsman can investigate complaints about maladministration on the part of a panel hearing appeals for a maintained school (but not an Academy – it is necessary for the appellant to complain to the EFA. The Education Funding Agency took over responsibility from the YPLA on 1st April 2012 for the funding of young people’s education and training, including the increasing number of Academies. See D6 below).
ii. As a matter of law the ombudsman cannot question the merits of a panel’s decision, provided that it has been arrived at properly. He will only act if there was a fault in the process leading up to the decision, and that fault was so significant as to cause an injustice.
iii. A failure to observe the Appeals Code does not necessarily indicate an injustice – if it is not too serious, it might be viewed as a ‘technical breach’. The ombudsman tends not to be interested in technicalities or legal loopholes as such. The issue is whether there was an injustice, and whether the appellant was clearly disadvantaged. The ombudsman states:
“We will not usually consider your complaint if we think that you were only slightly affected”
“if we decide that the injustice to you is only slight, we will tell you as soon as we can [that we are not intending to pursue the matter]”
iv. An inadequate decision letter is, in itself, unlikely to amount to an injustice, even if it does not comply strictly with the Code – but it might raise questions about whether or not the correct procedures have been followed.
v. Appellants sometimes complain that the panel took no notice of their “huge mitigating circumstances” or “strong academic evidence”. On investigation, however, it often becomes clear that the panel did indeed consider these points, but decided either that the circumstances did not fully explain the shortfall in marks, or that the academic evidence was not sufficiently persuasive. Provided that the panel has properly considered all the arguments, the ombudsman will take the view that they were entitled to reach the decision they did.
vi. Because there is a proper process to be followed, it usually takes months for the ombudsman to reach a decision, and, if you are successful, you will probably be offered a re-hearing in front of a different panel.
vii. If you have serious concerns about how your case was handled, I suggest you consider making a complaint in the first instance to the office that organised the appeals. Local Authorities in particular may have an internal procedure whereby they will check whether the correct procedures were followed, and respond relatively speedily. If you remain dissatisfied, you still have the option of taking your case to the ombudsman. Where own-admission authority schools (e.g. foundation/voluntary aided schools) are concerned, I would suggest going straight to the ombudsman anyway.
viii. You have a year in which to complain to the ombudsman – or 6 months in the case of a complaint to the EFA (not that I would suggest leaving it that long).
ix. If you decide to proceed with the ombudsman, there are two ways of doing so.
a. First of all, there is an online form: here
Unfortunately, at the time of writing, you can’t get past page 1 without filling it in, but to give an idea of what is involved, the usual format used to be approximately as follows: (The “Notes” are mine.)
Mr/Ms/Mrs/Miss or Other: (please insert)
Daytime contact phone number:
Please put in the telephone number where we can contact you between 9am and 5pm. Tell us if it is your home or work, or the number of a neighbour or friend. If you do not have a daytime contact number, please put down a number with an answerphone where we can leave a message during the day. If you do not have any of these, please leave this section blank.
Your special requirements: If anything makes it difficult for you to use our service, for example if English is not your first language or you have a disability, please use the space below to tell us how we might help you.
Which council or authority are you complaining about?
[Note: In other words, the name of the LA, if the LA is the admission authority, or the name of the school, if it’s an own-admission authority such as a foundation or voluntary aided school.]
Please write the name of the organisation you want to complain
about. It may not be a council.
Have you complained to the council or authority?
In most cases, before we can investigate a complaint, the council must have a chance to answer it. If you have not complained to the council, please do so. You can find out how to complain from the council’s offices or you can ask a councillor to help. If you are not satisfied with the answer, or if the council does not give you an answer within a reasonable time, you can complain to the Ombudsman for your area. In some urgent cases, including education admission appeals, we may be able to deal with your complaint straight away.
[Note: Despite the caution above, the ombudsman will automatically consider complaints about school admission appeals, so it’s not necessary to complain to the admission authority first.]
If you know, please say when you complained to the council or authority.
What do you think the council or authority did wrong?
[Note: This is where you state in full the grounds for your complaint, taking up as much space as needed. Remember – you cannot challenge the panel’s judgement!]
What remedy are you seeking?
[Note: I suggest: “a re-hearing in front of a different panel and clerk” – if you are entitled to anything more, the ombudsman will include it in the decision!]
b. The second method of complaining is to ring the ombudsman’s advice line and ask for advice.
[Note: From the LGO website: “For advice on making a complaint, or to make a complaint over the telephone, please call the LGO Advice Team on 0300 061 0614 or 0845 602 1983. (Calls to 03 numbers will cost no more than calls to national geographic numbers (starting 01or 02) from both mobiles and landlines, and will be included as part of any inclusive call minutes or discount schemes in the same way as geographic calls. Please note that calls may be recorded for training and quality purposes.) The Advice Team are available Monday to Friday from 8.30am to 5.00pm. You can also text ‘call back’ to 0762 480 4299.”]
[Note: It’s best in this situation to be fully prepared with answers to all the questions listed above (although I think they will send a summary of what they’ve recorded for you to check).]
If you go to the ombudsman, be prepared for the possibility of a long drawn-out process. If your complaint is accepted, an investigator will be allocated. He may telephone you to introduce himself. He will write to the Authority, summarising the main points of your complaint, asking for copies of all the appeal papers, and requesting their comments on the issues raised to be sent to him within something like 30 days. The Authority will respond accordingly.
The investigator usually forwards the Authority’s response to you, and if you wish to dispute anything, the investigator sends your comments back to the Authority for them to respond to. And so it continues, until the investigator feels able to issue a provisional finding, which will become final unless further points are put to him within something like 14 days.
The whole process can take 2 or 3 months. Sometimes less, sometimes more.
During the investigation, the investigator may send you (free of charge) a copy of the clerk’s notes for your information, even if you never tried to obtain them yourself. It’s only fair to point out that people sometimes come across comments in the clerk’s notes that they may find distressing, and that going to the ombudsman itself can be a very lengthy and stressful process.
Remember – you cannot complain just because you are unhappy with the decision of an appeal panel. There has to be a procedural fault so serious as to cause an injustice.
D4. The Clerk’s Notes
a. Before making a complaint, it might be worth seeing whether you can get hold of a copy of the clerk’s notes – particularly if a Local Authority is involved, because they ought to be used to processing such requests. Own-admission authority schools, on the other hand, have been known to refuse without taking legal advice (as they are advised to do in the Code of Practice).
The clerk’s notes are not meant to be a verbatim record of the appeal, but they should include all the important points. The advantage in having sight of the notes is that you may discover things that strengthen your complaint.
Write to whoever organised the appeal, stating that you wish to request a copy of the clerk’s notes under the Data Protection Act, and include payment of the appropriate fee, which is usually £10 (the maximum permitted). It has to be done in exactly this way (but you could make preliminary contact to check whether they will comply and what the fee will be). See specimen letter below – scroll down to (b).
The previous Code of Practice stated that the clerk’s notes are not covered by the Freedom of Information Act, but left open the possibility of using the Data Protection Act.
The wording in the 2012 Code has changed to:
“2.27 These notes and records of proceedings must be kept securely by the admission authority for a minimum of two years. Such notes and records will, in most cases, be exempt from disclosure under the Freedom of Information Act 2000 and the Data Protection Act 1998, but admission authorities receiving requests under those Acts for information or data contained in such notes or records should obtain legal advice.”
Some admission authorities will undoubtedly use paragraph 2.27 to discourage parents from requesting a copy of the clerk’s notes. However, under the Data Protection Act (not Freedom of Information) I think it more likely than not that parents will be entitled to any notes relating specifically to their own child’s case. Further advice, if necessary, can be sought from the Information Commissioner’s helpline. It is worth noting that one of our members was refused access to the clerk’s notes under the Data Protection Act some years ago, and complained to the Information Commissioner. The Information Commissioner eventually ruled in her favour.
If the admission authority, clerk or administrator claims to have legitimate grounds for denying access to the notes, I would ask them to put their refusal in writing, and to state which section of the Data Protection Act they are using as a justification for non-compliance.
If necessary, I would then suggest:
- Complaining to the Information Commissioner about lack of access to the notes (to check whether the admission authority, clerk or administrator is indeed acting lawfully).
- Complaining to the Ombudsman (or EFA*, if appropriate) about those aspects of the appeal that appeared unfair (also drawing attention to the lack of transparency).
The ombudsman will almost certainly ask to see the clerk’s notes if she decides to investigate the complaint. She has the powers of a high court judge, and cannot be refused access to the clerk’s notes.
In our experience the ombudsman (London office) routinely sends a copy of the clerk’s notes to the complainant in due course “in the interests of transparency”. There are three regional ombudsmen for different parts of the country, and one would hope they all have the same policy, but one case previously mentioned on the forum suggests this may not always be so.
We have little experience of the YPLA/EFA* so far, but are aware of at least one instance where they have declined to forward to the complainant a copy of the clerk’s notes.
b. Specimen letter or email to the appeals clerk/administrator
(Be sure to include your full name and address)
Subject access request (Data Protection Act 1998)
Child’s name: ………………..
Date of appeal: ………………
I am writing to you to ask formally for a copy of the clerk’s notes of my appeal for a place at …………… school. This request is being made under the Data Protection Act 1998, and refers to those notes specifically relating to my child’s case.
Please advise if you require payment of a fee.
If you are unable to accede to this subject access request, please let me know in writing which section of the Act is being used as a reason for non-compliance.
Thank you for your kind assistance in this matter.
It is best to send your request by recorded delivery or by email, and to keep a copy of the request and any other correspondence. This will be important as evidence if you need to complain that the organisation has not given you the information you think you are entitled to.
The organisation has to reply promptly, and at the most within 40 days, starting from the day they receive both the fee and any details they need to identify you and the information you are requesting.
D5. Why not tape record appeal hearings so that there can be no dispute about what has been said?
This question arises from time to time, usually when appellants have obtained the clerk’s notes and are dissatisfied with what they read.
An incomplete or inaccurate record of the hearing makes things very difficult in the event of a complaint, especially where the facts are disputed by the parties.
The 2009 Code of Practice stated:
It is important that the conduct of hearings is based on fairness and creates an informal atmosphere. Informality will be difficult to achieve if, for example, the hearing is tape-recorded and this ought to be avoided except where it may help an appellant with a disability.
The ‘slimmed down’ 2012 Code is silent on this matter, but I do not anticipate any change as the tape recording of appeals would be likely to make the process even more formal and intimidating.
The clerk has a very demanding task, keeping up with what is being said, making instant judgements about what the significant points are, and noting them accurately.
I would always advise appellants to give the clerk a copy of their presentation on arrival, so that there is unlikely to be any dispute about the parental case. The authority’s case should be essentially what was in their written statement, as they should not be introducing any significant new information at the hearing. That leaves: (a) what is said in the Q&A session, and (b) how detailed the notes of the decision making are.
It might be a good idea to try and keep an eye on the clerk during the Q&A session to see if he or she appears to be keeping up. An impossible thing for the appellant to do in such a stressful situation, but if the appellant is accompanied by a partner or friend, perhaps he/she could take on this role, and if necessary ask considerately “Are we going too fast for you?”
A good chair should also be prepared to intervene in this way, of course. And a good clerk shouldn’t be afraid to say “I’m sorry, could I just ask you to slow down for a moment?” or “Could I check that I’ve got this correct …..?”
D6. Complaining about an academy appeal
Note that the ombudsman is not normally empowered to deal with complaints about the conduct of appeals relating to an academy. This has led to confusion about who is responsible for dealing with complaints if a school is in the process of changing to academy status. Agreement has been reached (March 2012) whereby the ombudsman will be able to start or complete investigations of complaints about school admission appeals for all academies that have converted from maintained schools during the appeal process. This means that parents of children who have appealed for admission to a maintained school that converts to academy status have a route of redress if they believe a school admissions appeal has not been handled correctly prior to conversion.
The following guidance was published on the EFA website (March 2012):
1. All Academy Appeals must comply with the School Admission Appeals Code (the Code). The Code can be found here
2. On 1 April 2012 the Education Funding Agency (EFA) took over from the YPLA responsibility for ensuring that Academies comply with the Code.
3. An independent appeal panel’s decision can only be overturned by the courts.
4. The EFA will deal with complaints that Academy appeal panels have not complied with the Code as efficiently and quickly as possible. Complainants should be aware that this can take 2 months.
5. In the usual course of events, the EFA acting on behalf of the Secretary of State for Education will endorse appropriate recommendations made by the Local Government Ombudsman (LGO) relating to Academies (see paragraph 13 for detail of when the LGO will investigate). It will also endorse recommendations made if a school converts after conclusion of the LGO’s investigation.
6. Complaints should be dealt with impartially, fairly and proportionately.
7. In dealing with complaints, the EFA will comply with its duty to promote equality and diversity.
What the EFA will do:
8. On 1 April 2012, the EFA took over this responsibility for dealing with complaints about independent appeal panels for Academies, on behalf of the Secretary of State.
9. The EFA will consider whether the arrangements comply with the Code, as set out in paragraphs 5.4-5.6 of the Code. This will involve a consideration of whether:
a. the panel was correctly constituted by the Academy Trust;
b. the Academy Trust has acted reasonably in exercising functions in respect of the appeal process or has failed to discharge any funding agreement duty in relation to that process (for example in constituting the panel or by acting in breach of the mandatory provisions of the Code); and
c. any failure to comply with the Code or failure to act reasonably in its application of the Code has, or may have, caused an injustice.
10. Where the EFA finds evidence that any such failure has, or may have, caused an injustice, it can require that a new appeal is heard by a fresh panel but it cannot substitute its own view of the facts for those of the original appeal panel or overturn the panel’s decision.
What the EFA will not do:
11. The EFA on behalf of the Secretary of State cannot review or overturn decisions of independent appeal panels; an appeal panel’s decision can only be overturned in the courts (see paragraph 4.7 of the Code). This means that the EFA is not able to consider complaints where a person simply feels that the decision taken was wrong.
12. The EFA will not usually investigate complaints about independent appeal panels more than 6 months after the panel sat.
13. Complaints about an admission appeal hearing held by a school that has subsequently converted to Academy status will be investigated by the Local Government Ombudsman (LGO). If fault is identified within the admission appeal process, any recommendations or proposed remedies will be passed to the EFA as the body with jurisdiction over Academies.
How the EFA will respond:
14. On receipt of a complaint the EFA will check:
a. the matter is one which it can investigate;
b. if the panel sat more than 6 months ago. Where this is the case the EFA will not normally investigate, unless the complainant has good reason for the delay in making the complaint; and
c. All the information required has been submitted to enable the complaint to be progressed.
15. Within 10 working days the EFA will aim to send a letter or email to the complainant, acknowledging receipt of their complaint and informing them whether the matter is one that the EFA will be able to investigate. If it is, the letter will request permission to share the details with the Clerk to the panel and the Academy and set out:
a. the role of the EFA in dealing with complaints about independent appeal panels;
b. a summary of the complaint to be agreed by the complainant; and
c. a formal request for further information or clarification if needed.
16. EFA will then investigate by sending a copy of the complaint (in full) to the Clerk to the independent appeal panel (“the Clerk”), along with any summary or identification of the main allegations. This will request any comments or other information that the Clerk wishes to provide, bearing in mind the nature of the complaint including, but not limited to, their contemporaneous notes of the appeal. Upon receipt, the EFA will seek further information or clarification from the Clerk and/or complainant where necessary.
17. The EFA may also send the complaint to the Academy Trust and seek its views. This course of action would be especially relevant when the complaint is that the panel has been incorrectly constituted.
18. The EFA would hope this stage of the process can be completed within 20 working days but it depends on what information is received and whether further enquiries need to be made. The EFA will seek to make complainants aware of how long this part of the process will take on a case by case basis.
19. Responses from the complainant and the Academy will be considered by the EFA before findings are confirmed. Within 10 working days, the EFA will inform all parties concerned of its final decision and the actions it will take (see below). This concludes the investigation.
20. If at any point during the investigation, the EFA encounters a delay in responding to / providing correspondence, the complainant will be notified of the delay and be given details of when a response will be provided.
What action the EFA can take:
21. If the EFA finds that the panel has complied with the Code or that any failure to comply with the Code or other maladministration has not caused an injustice, it will write to the complainant to inform them of the decision. A copy of the letter will be sent to the Academy and the Clerk. In such a case it is highly unlikely that a fresh appeal will be required.
22. If the EFA finds that the appeal panel was not set up correctly or that there has been maladministration of the appeal process which has, or may have, caused an injustice, it will write to the Academy requiring a fresh appeal to be conducted before a new panel and, where possible, a new Clerk. A separate letter will be sent to the complainant and copied to the Clerk.
23. In all cases the EFA will explain what evidence it considered and the reasons for its decisions.
24. If an Academy disagrees with the decision that a fresh appeal hearing be held, the EFA will request that the Secretary of State considers enforcing compliance with the funding agreement.
How to complain to the EFA:
25. An online form for making a complaint to the EFA can be found here
D7. All complaints – what are the chances of success?
Most complaints are probably not going to succeed, so don’t enter this long drawn-out process with the expectation that you’re going to win.
The threshold for a successful complaint is quite high. It is not enough for there to have been a breach of the Appeals Code. The question that the ombudsman (or the EFA in the case of an academy) will seek to address is whether the outcome of the appeal is likely to have been any different if the procedural error had not occurred.
Many complainants make the mistake of wanting to challenge the panel’s judgement, when the issue is whether or not there has been a procedural error so serious as to have caused an injustice.
D8. How to word a complaint
I think complaints are likely to be more effective if the language is restrained and dispassionate. Avoid using loaded words such as “outrageous”!
I suggested to one complainant that she should tone down her language and change:
- “It beggars belief …….” to “It raises questions about whether …..”
- “beyond belief and unfair” to simply “unfair”
- “adversely influenced” to “influenced”
- “categorically incorrect” to “incorrect”
- “terribly unsafe” to “unsafe”
Complaints should be made as calmly and objectively as possible – difficult as this may be in the circumstances!