Ombudsman & child's need for a place

[Etienne]

The ombudsman may forward a copy of the clerk's notes during the course of an investigation into someone's complaint about the conduct of their appeal

An enquiry about a refusal to provide a copy of the clerk's notes under the Data Protection Act should be made to the Information Commissioner, but it could take a long time. (I hope LFH's successful complaint against a clerk who didn't seem to understand the law may have set some sort of precedent in cases where there is no justifiable reason for refusal.)

The Appeals Code states:

2.41 The notes of the proceedings of appeal panels are not subject to the Freedom of Information Act 2000. Where the notes are held for administrative purposes by an admission authority which is subject to the Freedom of Information Act 2000 (for example, where a local authority’s legal department retains the notes on file, or the notes are retained in a school office) there is no obligation for the admission authority to comply with a request for copies of the notes. In this situation, either:
a) the admission authority will hold notes on behalf of the panel, in which case the notes will not be held by the authority for the purposes of the Freedom of Information Act; or
b) the notes will fall within the exemption applying to court or tribunal records.

2.42 Where a request has been made under the Data Protection Act 1998 for access to personal data contained in the records of proceedings, whether that data should be disclosed will depend on a number of factors including: the identity of the person making the request; the nature and individual circumstances of the appeal; the way in which the data are held; and the interests of any third parties identified in the data. Appeal panels or clerks may therefore wish to obtain their own legal advice before responding to such a request.

[penelope.p]

Thanks to you all for your advice.

I spoke to the Ombudsman today and she is going to request the notes and forward the findings to me for comment. Not sure if she will send the entire notes or just a summary.

However she agrees that if the Deputy Head said during the appeal hearing that the admission of an additional child would not affect any pupil at the school, then he has undermined the initial evidence of "prejudice".

However neither that nor the medical, social or academic evidence that we submitted was mentioned in the refusal letter and she agreed this was wrong. She said they may have considered the evidence and dismissed it for whatever reason but only the notes would show this.

If that is the case, are the ombudsman likely to suggest a re hearing? How serious does the procedural error need to be?

P

[T12ACY]

My gut feeling, which is usually wrong is that you probably have a very good case if the circumstances you put forward are not in the decision letter. From whay you have said the medical situation was quite a significant point but no reference was made of it when advising you of the outcome? If you argued the point that only this school would be suitable because of the condition they should have considered this and advised you that they disagreed otherwise you are bound to feel they hadn't even taken the time to weigh this up!

Our 'situation' was referred to, imo not to my satisfaction, but by showing they weighed it up gives me no cause for complaint....

Good luck, here's hoping that the notes provide some answers

[Alex]

However she agrees that if the Deputy Head said during the appeal hearing that the admission of an additional child would not affect any pupil at the school, then he has undermined the initial evidence of "prejudice".

If you had been the only appellant the School's Representative would possibly have destroyed their own case with that remark. However the panel were considering the admission of 5 extra children so I think it could still be a valid decision to find prejudice, though the school's case may have been weakened somewhat. Having found prejudice they would go on to look at each individual case to consider whether it outweighed the prejudice. The problem is that no matter how unfair the decision they made on weighing up the two sides may feel, it is a matter for their judgement and one cannot overturn that.

If that is the case, are the ombudsman likely to suggest a re hearing? How serious does the procedural error need to be?

The general guidelines seem to be that they will ask for a re- hearing if they feel that the procedural errors have led or may have led to an injustice. Etienne will have a lot more experience of this but decision letters which do not explain what has been taken into account do not always seem to be enough - it will depend on the clerk's notes and whether they show that the issues were properly considered.

One thing that often seems to happen is that the Ombudsman's investigator finds other errors that the appellant had not realised had happened.

[capers123]

My gut feeling, which is usually wrong is that you probably have a very good case if the circumstances you put forward are not in the decision letter.

I'm not so sure. If the clerks notes state that they were considered, but that it was just not mentioned on the decision letter, then the actual decision would have been based on all the evidence, and therefore would be allowed to stand. The clerk and/or panel would get a ticking off for not putting all the reasons in the letter, but that's not enough to say that there was an injustice.

Think of a court with a jury. They have to listen to all the evidence, and then make up their minds if the person was or was not guilty. They don't have to state their reasons as to what they considered to come to that decision. At least with admissions appeals parents now have to get a summary of items considered by the panel - that letter though would not affect the actual decision.

I look forward to hearing how this one goes.