Admissions appeals based on admission decisions seem to be a constant thorn in the side of schools and admissions authorities. A recent High Court decision focusing on when a school is ‘full’ will remind appeal panels of the evidence they need to consider. How could the case impact on your school?

What were the facts of the case?
The facts were no different from those being put before most appeal panels around the country, which is why this case is relevant.

A mother (M) challenged the decision of an appeal panel to refuse admission for her daughter (MC) at her school of choice (the preferred school). M and her family suffered threats and intimidation as a result of community and family problems connected with local criminality. M felt that attendance at a local school attended by pupils connected through the family with the criminality could leave MC open to violence, threats and bullying. Therefore M applied for the preferred school, but the application failed. M appealed.

Were the admissions policy and oversubscription criteria important?
They were. In accordance with the 2009 Admissions Code, the admissions authority in this case had decided that social or medical need was important and put the category as its second oversubscription criterion. M believes that MC satisfied the criteria and should have been offered a place at the preferred school.

Why was admission to the preferred school refused?
The letter from the clerk to the panel noted that it was not accepted that the preferred school is better placed than other schools to meet MC’s needs and that the professional evidence (from the GP) does not support admissions to any particular school as long as the school is away from the immediate area. Importantly, the panel decided that the preferred school had reached its published admissions number (PAN) of 243 and that taking on an additional pupil would prejudice those pupils already admitted. It was on this latter point that the High Court made its decision and expressed what is required from a school to prove that admitting an extra pupil would negatively impact upon those already admitted.

What does the Appeals Code say about proving the school is full?
The Code sets out a two-stage process for the panel. Firstly, the panel have to consider if the admission arrangements comply with the Code. If so, were they correctly applied in the individual’s case and would prejudice arise if the child were to be admitted? This is more than simply saying the school has reached its PAN – the Code says that the admissions authority must be able to demonstrate actual prejudice.

If the panel decide that there would be no prejudice, the appeal is successful. If the panel decide that there would be prejudice they move on to the second part of the test.

At this stage, the panel has to balance the prejudice that would be suffered by the individual if the appeal was refused against the prejudice that would be suffered by the school if the appeal were allowed.

What happened in this case?
In this case, the Court decided that the panel fell at the first hurdle by failing to consider whether there would be any prejudice suffered by MS attending the preferred school. Instead, all the panel did was to consider a letter from the school that did little more than say that the school was full and admitting another child would be a problem.

The Court stated that this appeared to be a fixed policy test applied by the panel which resulted in the panel fettering its discretion – something it was not allowed to do. As a result, the court said that a new appeal should be convened.

In case the court was wrong on its interpretation of the first stage of the process, it went on to consider the second stage. In essence, the second stage is about balancing the arguments, not putting a burden on the applicant to prove exceptional reasons. It is for the parent (M, in this case) to prove that her grounds for admitting the child (MS) outweigh any prejudice to the school. Again, as the school had failed to provide evidence of actual prejudice, the Court ruled that the panel was wrong to not allow the appeal.

What does this mean for admissions authorities and panels?
Admissions authorities need to ensure that in each individual case they consider how admitting that particular pupil would prejudice the other pupils at the school. It is not enough to say that the school is full. Instead the admissions authority needs to look at this particular pupil and consider how he or she would impact upon the school.

Panels need to make sure that they consider the two-stage process correctly, specifically in relation to the prejudice test in stage one of the process. They should not simply accept a submission from a school that it has reached its PAN and to admit any other pupil would be detrimental. If the school wants to ensure it is forced to admit additional pupils, it needs to work with the admissions authority to provide evidence of the prejudice it would suffer. It is very helpful for headteachers or deputy headteachers to attend appeal hearings to provide this information and answer the panel’s questions.

This e-bulletin issue was first published in November 2009

About the author: Dai Durbridge is a lawyer at Browne Jacobson. To find out more about the legal services Browne Jacobson provides in the education sector and to visit their website, please follow this link www.brownejacobson.com.

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