School Board acted unreasonably by failing to adequately communicate reasons

Investigation into a decision by Cashmere High School Board to decline enrolment for out-of-zone student—The Chief Ombudsman found the Board did not act unreasonably in declining enrolment —However, Ombudsman found that communication was inadequate—Ombudsman recommended the Board apologise and take appropriate steps to ensure Board members are aware of the need to adequately explain the basis for decisions

Background

Mr and Mrs B have a number of children. One of Mr and Mrs B’s children is C. C is disabled. The family lived in the enrolment zone for Cashmere High School (the School), where C’s siblings were students. Due to factors outside of their control, Mr and Mrs B and their children had to relocate to a different part of the region that was outside of the enrolment zone. When C completed intermediate school, Mr and Mrs B believed that they could enrol them as an out-of-zone student at the School because their other children were students there. However, they discovered that Cashmere High School Board’s (the Board’s) policy had changed and it no longer accepted out-of-zone enrolments for siblings of current students.

Mr and Mrs B wrote to the Board about their situation. Mr and Mrs B explained C’s disability and their wider circumstances. They were concerned that C would be socially and emotionally disadvantaged if they could not attend the School with siblings and friends from intermediate school, upon whom they relied for support.

A member of the Board responded to Mr and Mrs B:

"At last night’s Board of Trustees meeting, we tabled your request for [C]’s enrolment.

"Unfortunately, we are unable to proceed with [C]’s enrolment unless you are residing within our zone on the first day of attendance in [Term 1].

"We appreciate your circumstances and acknowledge the inconvenience this may cause you and your family. However, due to the high demand for places at [the school] we need to ensure that our enrolment processes are followed."

Mr B responded to the board member but received no response. He subsequently made a complaint to the Chief Ombudsman about Board’s decision to decline C’s out-of-zone enrolment.

Investigation

The Ombudsman’s investigation focused on the Board’s:

• Decision to decline C’s out-of-zone enrolment; and
• Communication about its decision to decline C’s out-of-zone enrolment.

The Board explained that it has traditionally accepted out-of-zone enrolments from siblings of current students. However, it decided not to accept any out-of-zone students for the relevant academic year. It explained that it is subject to an enrolment scheme under the Education and Training Act 2020 (Education and Training Act) which limits its ability to enrol out-of-zone students. Additionally, the Ministry of Education (the Ministry) had repeatedly urged the Board not to accept any further out-of-zone students due to the difficulty in accommodating increases in its student population. In deciding not to accept any out-of-zone students for the relevant academic year, the Board considered various factors including classroom capacity and the number of enrolled students.

The Board stated that it was unable to consider the factors put forward by Mr and Mrs B when assessing their request for C’s out-of-zone enrolment. It said that it receives numerous requests for out-of-zone enrolments based on claims that the student who is applying would be disadvantaged if they were not allowed to enrol. However, the Board said it must ensure that enrolment decisions are made fairly and consistently. It stated that Mr and Mrs B should apply to the Ministry to use provisions available to the Ministry to direct C’s enrolment to the School if C was going to be genuinely disadvantaged by not attending the school. The Board had not provided any of this information in its correspondence to Mr and Mrs B.

The Board confirmed that it received Mr B’s response to its email but decided not to respond as ‘the Board felt that we had already responded to this particular enquiry’. It did not advise Mr B that it had decided not to engage further on the matter.

Outcome

Decision to decline

The Ombudsman formed the opinion that the Board’s decision to decline C’s out-of-zone enrolment was not unreasonable in the circumstances.

The basis for the Ombudsman’s opinion was that the School was subject to an enrolment scheme pursuant to Schedule 20 of the Education and Training Act. The scheme sets out the geographical area that comprises the school’s enrolment zone.

The purpose of an enrolment scheme is: [1]

1. to avoid overcrowding, or the likelihood of overcrowding, at the school; and
2. to ensure that the selection of applicants for enrolment at the school is carried out in a fair and transparent manner; and
3. to enable the Secretary to make the best use of existing networks of State schools.

When a need for an enrolment scheme is identified, the Ministry drafts the enrolment scheme in consultation with the school’s board and local community. If an enrolment scheme is established, the board must implement it. Under the School’s enrolment scheme, students residing within the zone have right of enrolment so the Board must accept their enrolment. If there are any remaining places, out-of-zone enrolment applications are then accepted in the following order of priority:[2]

1. students who have been accepted for enrolment in the Te Pukenga (special education) programme; 
2. siblings of current students;
3. siblings of former students;
4. children of former students;
5. children of board employees or board members; and
6. any other applications.

The Ministry advised the Board that it should use the enrolment scheme to manage the School’s roll at approximately 1800 students, but the School’s roll significantly exceeded this number. The Board concluded that the School could not accommodate any out-of-zone students for the relevant academic year. Accordingly, it decided not to accept any out-of-zone students, including C.

When an enrolment scheme is in place, the Secretary for Education may direct a board to enrol a student whose enrolment application has been declined, if the Secretary is satisfied that ‘not giving a direction would be so disadvantageous to the applicant that overriding the enrolment scheme is justified’.[3] The Board’s view was that Mr and Mrs B should apply to the Ministry to direct C’s enrolment to the School if they would be disadvantaged by not attending. The Ombudsman concluded that applying for directed enrolment may be a suitable avenue for Mr and Mrs B to pursue.

Communication

The Ombudsman formed the opinion that the Board acted unreasonably by failing to adequately communicate the reasons for its decision to decline C’s out-of-zone enrolment.

The board member’s response to Mr and Mrs B’s correspondence was very brief and did not explain the basis for the Board’s decision to decline out-of-zone enrolment for C, nor what factors it considered in reaching its decision. The response contained no reference to the factors set out in Mr and Mrs B’s initial letter, such as C’s disability, the family’s wider circumstances, or Mr and Mrs B’s concerns that C would be disadvantaged by not attending the school.

Good decision making means that the reasons for a decision should be clearly explained to affected parties. In particular, the decision should communicate: [4]

• the decision that has been made;
• who made the decision;
• the authority under which the decision was made;
• the relevant steps taken by the decision maker;
• the evidence considered and the key facts that were taken into account;
• an explanation of why the decision was made; and
• details of any rights of review or appeal from the decision.

In the circumstances, it would have been appropriate for the Board to explain to Mr and Mrs B:

• that it believed it could not reasonably consider the factors they put forward about C and the family’s circumstances;
• the factors that it considered when deciding not to offer out-of-zone enrolment (i.e, the enrolment scheme and urging from the Ministry not to accept out-of-zone students); and
• that it was open to Mr and Mrs B to apply to the Ministry to direct C’s enrolment at the School.

Explanation of the reasons for the decision may have assured Mr and Mrs B that the Board had properly considered their request in a fair and reasonable manner, even though the outcome was not the one that they had hoped for. Additionally, outlining the reasons for the decision would have allowed them to be fully informed of their options, make an informed complaint about the decision, or take further action they considered appropriate, such as applying to the Ministry to direct C’s enrolment.

The Board’s failure to explain the reasons for the decision left Mr and Mrs B feeling that they had not been listened to. They were unsure of how or why the Board had reached its decision and whether it had considered the factors that Mr and Mrs B put forward in their letter.

The Ombudsman also highlighted issues with the Board’s recordkeeping practices. Meeting minutes documented that the Board discussed Mr and Mrs B’s request for out-of-zone enrolment for C. However, the minutes did not indicate what factors were discussed, nor what weight they were given in the decision making process. During the investigation, a board member advised the Ombudsman’s staff that they were reluctant to elaborate on what factors the Board discussed during its meetings, as they could not be confident of the accuracy of their recollections given the passage of time.

For the purposes of transparency and accountability, good administrative practice requires that proper records of a decision making process are created and retained. The school, including its Board, is subject to the Public Records Act 2005 (Public Records Act) which requires it to ‘create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice’. [5] When managing its records, it must ensure that it complies with the requirements of the Public Records Act. [6]

The Ombudsman noted that, in future, it would be prudent for the Board to ensure that it is creating and maintaining records in accordance with the requirements of the Public Records Act. Among other things, careful and fulsome recordkeeping would help the Board demonstrate the actions it took and the decisions it made.

The Ombudsman recommended that the Board:

• provide a comprehensive written apology to Mr and Mrs B for the deficiencies in its communication that were identified in the Ombudsman’s investigation; [7] and
• take appropriate steps to ensure that its members are aware of the need to properly explain the basis for decisions.

Failure to implement recommendations

Following the Ombudsman’s final opinion and recommendations, the Board has refused to implement the Chief Ombudsman’s recommendations. The Board advised that it has ‘given consideration to your opinion and recommendations. We have, however, ultimately come to a different view’.

Resources available to School Boards

The Chief Ombudsman has a number of resources available to assist school boards in good decision making. The following guides are available on the Ombudsman’s website:

Good complaints handling by school boards

The OIA and school boards

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

Footnotes

[1] Section 71(1) of the Education and Training Act 2020. Return to text

[2] If there are more applicants for out-of-zone enrolment than there are places available, selection must be made by a ballot in accordance with Clause 2, Schedule 20 of the Education and Training Act 2020. Return to text

[3] Clause 14(2)(b), Schedule 20 of the Education and Training Act 2020. Return to text

[4] Office of the Ombudsman, Good decision making, published October 2012. Return to text

[5] Section 17(1), Public Records Act 2005 refers. Return to text

[6] Ministry of Education, School records – retention and disposal schedule, published May 2022. Return to text

[7] Office of the Ombudsman, He rauemi tātaki ea – A resource for offering an effective apology published August 2022. Return to text