Howard Cohen looks at School Admission Appeals – the current situation

Office of the Schools Adjudicator Report 2015-6: Admission Appeals – Where are we now?

Howard Cohen analyses the Office of the Schools Adjudicator’s (OSA) Annual Report for 2015/6 and what this means for admission appeals.

Introduction

1. The Office of the Schools Adjudicator (OSA) is the arms-length body formed by the Department of Education in 1999 to consider and rule upon objections to, and referrals about determined school admission arrangements relating to all state-funded schools. The main purpose of the OSA is to clarify the legal position on school admissions policies generally, and in particular, to ensure compliance by admissions authorities with the School Admissions Code, updated in December 2014 (‘the Code’).

2. The timeline for the determination of admission arrangements (and for objections to those arrangements by parents and others) has now changed, meaning that all schools, whether maintained, foundation, voluntary-aided or academies must publish those arrangements by 28^th February 2017. Objections may be made to the OSA by 15^th May 2017. The idea behind the change is that more appeals will be heard prior to the summer holidays so that if revisions to admissions arrangements are required, they are implemented prior to the deadline for school place applications at the end of October 2017. This now means that a parent wishing to object to planned changes to any state school’s admission policy now has only a short prescribed window in which to do so.

3. Each year, the OSA’s Chief Adjudicator publishes an Annual Report looking at overall compliance with the Code and making recommendations as appropriate. The report for the year September 2015 – August 2016 was published on 26^th January 2017.

OSA Annual Report 2015/6 – The statistics

4. In the year to August 2016, the total number of new cases brought concerning admission arrangements was 200 (total cases considered: 315). Of these, issued outcomes were split almost equally with 73 upheld, 70 partially upheld and 73 not upheld. Thus of the decisions issued, 66% of objections were upheld to some degree. 75 more objections were not adjudicated upon by 31^st August 2016 as intended but have been carried over into next year’s figures. One interesting feature of this year’s objections is that they related to schools covered by only 81 different admission authorities, with multiple complaints (48 being the largest group) about the same school’s arrangements now apparently common.

Comparisons with previous years

5. What is clear is that the number of objections brought against planned changes to school admissions arrangements have varied substantially since 2009/10 when they stood at 520. Since then, they have dropped to 486 (2010/11), 203 (2011/2) and 189 (2012/3) before rising to 318 (2013/4) and 375 (2014/5). This year they have dropped again to 315 (2015/6).

6. The proportion of objections upheld to any degree has also varied substantially over time. In 2009/10, 48% of issued decisions upheld or partially upheld objections, whilst in 2010/11, this figure rose to 77%. In 2011/12, the figure was 68% before rising significantly in 2012/3 (83), 2013/4 (81%) and 2014/5 (76%). This year’s figure of only 66% therefore represents a large drop, probably due to the “bedding in” of the 2014 Admissions Code and the greater efforts being made by school admission authorities to comply. That said, it is notable that two thirds of parents and others who object to planned admissions arrangements are clearly correct to do so.

Where are schools still failing to comply with the Admissions Code?

7. Although it is to be expected that over time, and with improved familiarity with the Admissions Code, schools will increasingly be able to successfully rebuff complaints and appeals concerning their admissions arrangements, there continue to be a number of problematic areas. These are worthy of mention.

8. First, consultation. The Code requires (para’s 1.42 – 1.45) admission authorities to consult on any proposed arrangements for the following school year. Even where there are no plans to change arrangements, admission authorities must nonetheless consult at least once every 7 years. Consultation must last for a minimum of 6 weeks and take place between 1^st October and 31^st The parties with whom the authority must consult are listed at paragraph 1.44 of the Code, and full details of the proposals must be published on the school’s website.

9. The OSA Annual Report picks up a common failing, that is failure to consult with parents. An assumption that other schools or the local authority will share the proposed arrangements with parents is wholly insufficient. What is more, the consultation must be meaningful and not merely a paper exercise. Good consultations highlight the precise changes planned and give a rationale for them. Public meetings are an example of good practice and all proposals must be published in full in a consistent and easy to understand manner on websites.

10. Second, catchment areas. According to the Code (para. 1.14), these must be “designed so that they are reasonable and clearly defined.” According to R v Greenwich London Borough Council, ex parte John Ball Primary School (1989) 88 LGR 589 [1990] Fam Law 469, (“the Greenwich Judgment”), children should not be discriminated against in relation to school admissions simply because they reside outside the local authority area in which the school is situated. This year, the OSA upheld only a few objections based on catchment areas, finding that in the majority of cases, the reason for the catchment (or its removal) was fair in all the circumstances of the case. Further, it decided that there is no reason why grammar schools should not also adopt catchment areas, so long as they are fair, reasonable and clearly defined.

11. Third, feeder schools. The Code states that admission authorities may name feeder schools, so long as their selection as an over-subscription criterion for higher school entry is “transparent and made on reasonable grounds.” The adoption of feeder schools attracted a substantial number of objections to the OSA, although most were not upheld. Reasonable grounds for having feeders might include the sharing of a religious character or enhancing the prospects of school entry for local children. Only where a secondary school named a group of primary schools with which it had little relationship in a different local authority area as feeders (without consulting that authority) was an objection upheld. It was notable that several secondary schools within multi-academy trusts (MAT’s) had named all primaries within the same MAT as feeders (to reflect links/support continuity) although on investigation, the strength of such links varied. In these circumstances, feeder status depended upon the facts of each case.

12. Equally, the OSA upheld one objection to the inclusion of feeder schools as an oversubscription criterion on the basis that it was unfair to children at other non-feeders, especially where the feeder was a greater distance away from the secondary school in question. However, where there was space at the school for children who lived locally and priority for those who attended more distant feeders came after priority for local children, that was unlikely to be found unfair. Simply removing a feeder school was unlikely to be found unfair where, in changed circumstances, admission authorities had good reason to amend their entry arrangements.

13. On the issue of feeder schools, one of the recommendations made by the OSA’s Chief Adjudicator is for the Department for Education to “…consider the case for guidance to admission authorities on how to maximise the benefits of feeder schools in terms of continuity of education and shared work across schools while ensuring that the selection of feeder schools does not cause unfairness to other local children.” How this is possible in practical terms is anybody’s guess, particularly as the need for school places continues to rise in the coming years.

General

14. There are two other interesting and important points made within the Annual Report. First, there are myriad types of over-subscription criteria for school admissions which threaten in some cases to become overly complex and difficult to understand. Paragraph 14 of the Admissions Code clearly states that “Parents should be able to look at a set of arrangements and understand easily how places for that school will be allocated.” Even where there are good reasons for detailed provisions in order to determine school entry (ie: a school is the only one with a particular religious character in a wide area), these must still be Code-compliant.

15. Second, in a number of cases, objections from parents and others were partially upheld where a school failed to meet the Code’s requirements on consultation on, and publication of, proposed admissions arrangements. Despite that, the arrangements themselves conformed with the Code. Notwithstanding the understandable sense of grievance that this might cause, the focus of the OSA is on whether the Code requirements are met and any procedural flaws in reaching those arrangements “may not sufficiently undermine the final arrangements determined.”

16. It is hard to understand how a decision, reached unfairly, could be held in any way to be substantively fair. Although not a matter for the OSA, a decision reached in this way could prove ripe for Judicial Review.

Summary

17. The OSA’s Annual Report for 2015/6 therefore illustrates a generally improving picture insofar as Code compliance is concerned. However, there remain serious areas of uncertainty. With the increasing prevalence of MAT’s, new uncertainties are almost certain to appear. The OSA’s workload therefore appears likely to rise in the years ahead, a fact that could well explain its recent recruitment drive!

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