Legal Expertise looks at the mechanisms open to parents to challenge admissions policies and investigates why this year is likely to see more challenges

1. What does it mean for a school to be ‘its own admissions authority’?

This term applies to all schools that have elected to take responsibility for handling their school admission procedure. This includes all foundation, trust, academy and voluntary aided schools. The consequence is that the school is responsible for setting its own policy including the oversubscription criteria, as well as having an independent appeals panel.

2. Why is this more of an issue this year?

Since Ed Balls was appointed secretary of state for children, schools and families in June last year, he has put more emphasis on the existing government policy of emphasising the importance of autonomy within schools. He believes that encouraging autonomy will lead to stronger management and better outcomes for children. This policy had already led to the introduction of foundation and academy schools. This year, the first wave of schools that applied for trust status have converted, which means there is an additional group of schools handling their own admissions for the first time. All these schools are now subject to the Admissions Code, where previously this function had been carried out for them by the LEA. It is this transition period that is likely to give rise to an increase in appeals as schools get to grips with this new responsibility.
3. Will there be a negative effect on social cohesion if each school can select pupils under their own policy? This remains a major concern for some critics. Robert Hill, former education adviser to Tony Blair, has warned of the danger of schools competing for the best students and leaving vulnerable pupils to lose out. In practice, this is unlikely due to the nature of the restrictions in the Admissions Code. The code states that selection is prohibited and it is clear that this is intended to cover all attempts at covert selection as well. Schools should also remember that although they are autonomous, they have a statutory duty to work with other schools within their local authority.

4. So what admissions criteria are acceptable?

Where a school is undersubscribed, all applicants must be accepted (other than for a selective grammar school). Where a school is oversubscribed, all applicants must be assessed against objective oversubscription criteria. The code sets out examples of acceptable oversubscription criteria. These include catchment areas, distance from home to school, and random allocation (lottery). The thinking behind the code is that oversubscription criteria should not be so complicated that parents are unable to establish whether their child has a realistic chance of being accepted at a school.

5. What guidance exists to assist schools?

Guidance for admissions policies is contained in the Admissions Code. This has been recently overhauled and from this year schools are required to act in accordance with it rather than merely have regard to it. The ethos of the code is that admissions policies should take into account parental preference wherever possible, as well as being objective and clear to parents.

6. So why are so many schools failing to comply?

There are a number of practices that may previously have been acceptable but which are expressly prohibited under the code. One of these is supplementary information forms. Traditionally, such forms have been used to obtain extra information about applicants − parental status or aptitude for a chosen subject, for example. Such a form will now only be permitted in a few specific cases, such as requesting a reference from a religious minister in the case of schools with a religious character or where the school seeks to assess suitability for boarding.

7. What if a parent objects to the admission policy?

It is possible for a parent to apply to the schools adjudicator to review the admissions policy. In 2006-07, 117 applications were made to the schools adjudicator, 77 of which were partially or fully upheld. Decisions taken by adjudicators are binding on all parties involved. They can only be challenged through judicial review.

8. Can parents appeal a decision?

Yes, where a child has not been accepted to a school, their parent can appeal. Where the school is its own admissions authority it must convene an independent appeal panel to hear the appeal.

9. Our sixth form is heavily oversubscribed. Can we interview to assess which applicants will best fit in with the ethos of the school?

No. The code expressly prohibits interviewing. The only situations where this may be permissible will be to find out whether a pupil is suitable for boarding.

This e-bulletin issue was first published in March 2008

About the author: Mark Blois is the editor and author of Legal Expertise. He is a Partner and Head of Education at Browne Jacobson where he has specialised in advising schools, colleges and Local Authorities for the last ten years. Mark is named as a leader in his field in both Chambers and Legal 500, is an Executive Committee member of the Education Law Association and is a LA governor at a special school in Nottingham. He writes and speaks extensively on education law and sits on the Editorial Advisory Board of Sec Ed. He is also the author of chapters in Optimus’ Education Law Handbook, the IBC Distance Learning Course on Education Law and Croner’s Head’s Legal Guide and Special Educational Needs Handbook.