Amelia Wallington looks at what schools can do to counteract increasing appeals from parents.
First published in September 2005
School admissions arrangements continue to generate intense social and emotional tensions. There has also been considerable criticism of the schools admissions system, which MPs have said is frustrating and time-consuming for parents.
This article reviews the law as it applies to school admissions. It also looks at tensions in the current system and considers whether the Government’s attempts to achieve greater fairness, coordination and parental preference in the allocation of school places can really be achieved through a system based on guidance rather than regulation.
Recommended resource: Take a look at our new book Leading a Faith School (2009) by John Viner – full of topical debate, practical advice and guidance, and a comprehensive history of faith schools
THE LEGAL FRAMEWORK
Changes to admissions procedure required by the Education Act 2002 are reflected in procedural changes issued in:
- the school admissions code of practice
- the school admissions appeal code of practice
The changes, effective from 2003, have clarified the law on parental preference, as contained in the School Standards and Framework Act 1998.
Every LEA must make arrangements for enabling parents to express a preference, with reasons for the preference, as to the school at which they wish their child to be educated.
Children outside the LEA
Despite the LEA’s general statutory obligation under section 17 of the Education Act 1996 to provide sufficient schools to meet the needs of children living in its area, children outside the LEA should not be treated less favourably in respect of school admissions than those within it.
The admissions authority for maintained schools (LEA for community and voluntary-controlled schools; governing body for foundation or voluntary-aided schools) is required, before the beginning of each school year, to determine the admission arrangements that are to apply for that year.
- The admissions authority must engage in consultation with the LEA (if the admissions authority is the governing body); or with the admission authorities for all other maintained schools in the relevant areas.
- Where the admissions authority is the LEA, it must consult with all neighbouring LEAs.
- This consultation must take place before 1 March for admissions in the September 18 months after that date.
The introduction to the school admissions code of practice states that LEAs need to adopt a more coordinated approach to produce admission systems that parents will find simpler and more streamlined.
Regulations now provide that LEAs must formulate a qualifying scheme to, in effect, attempt to negotiate agreement between all maintained schools in their areas for a coordinated application process for local parents.
Closely allied with the idea of coordination is the role of the now mandatory admissions forums, which are required under section 85A of the School Standards and Framework Act 1998 (as inserted by Section 46 Education Act 2002).
The admissions forum is organised by the LEA and is designed to advise the LEA and admission authorities for maintained schools in its area in respect of their admissions functions and in respect of strategies for promoting local consensus on admission arrangements.
In some areas, admission forums also seek schools’ agreement to protocols for sharing ‘hard-to-place’ pupils more equitably across all schools. Forums encourage groups of schools to work together in foundation partnerships and with their LEAs to manage pupils at risk of exclusion, and those that are excluded.
The latest indication from the office of the independent adjudicator is that many admissions forums are now working well in coordinating arrangements locally.
Admissions policies themselves must be reasonable, non-discriminatory and flexible.
Lack of clarity
The recent Watchdog report highlighted a ‘lack of clarity’ in the over-subscription criteria of many admissions authorities, with many admission criteria being too elaborate.
Faith schools in particular have come under criticism by the chief schools adjudicator, when they were found to provide insufficient detail to parents regarding what information or evidence was required of them.
Stronger code promised
In response to related criticisms by the Select Committees Report, the Government has stated that it intends to strengthen the next edition of the code of practice by including an annex containing over-subscription criteria that reflect good practice. School adjudicators can use this when considering objections to admission arrangements.
It remains to be seen to what extent this will improve the situation.
Publication of arrangements
Following the consultation process, admissions authorities must publish a prospectus detailing the admission arrangements. This must be no later than six weeks before the date when parents can express a preference for schools contained therein.
Parents may raise objections in relation to the admission arrangements of individual admission authorities, although 10 parents must register substantially the same objection before an adjudicator has to make a determination.
- In addition, admission authorities may object to arrangements made by other admission authorities.
- All objections must be made within six weeks of the publication of the arrangements.
- Where an objection relates to admission criteria regarding a person’s religion, it will be referred directly to the secretary of state.
INDICATION OF CHOICE
It will be clear that so long as some schools are more popular than others, not everyone can secure his or her first choice. So, even once acceptable admission arrangements are in place, there is still considerable scope for parental dissatisfaction.
Primary schools: parents usually put their child’s name on the waiting list some time before the child is due to start primary school. The admissions criteria will still apply, however — so being on the waiting list is no guarantee of a place.
Secondary schools: parents are required to indicate their choice on a form. There are usually three choices, and preference is assessed against the schools admissions criteria.
Parents who are unsuccessful in securing a place for their child at their preferred school may appeal the decision within 14 days of notification of the decision (this can be extended in exceptional circumstances).
The responsibility for arranging appeals is that of the LEA in relation to community voluntary-controlled schools; or of the governing body in relation to foundation or voluntary-aided schools.
There are detailed arrangements set out within statute as to the appeal process and composition of admission appeals panels, the scope of which is beyond this article.
EXPECTATION VERSUS THE LAW
At the heart of the current admissions process lies a tension between parental expectation and the law.
Recent government policy in respect of school admissions has concentrated on greater parental choice. As part of the promotion of the choice-based system of public service provision some, like Stephen Byers, have even called for wide-ranging reform of school admissions, arguing that restrictions on pupil numbers, surplus places and school opening times should be relaxed to further increase parental choice.
Certainly, parents seeking places for their children in specific schools have greater access than ever before to information about those schools in the form of school visits, Ofsted reports, league tables, annual reports of governing bodies and prospectuses.
Preference is not the right to choose
But, as has been seen, the complex legislative framework and system of guidance that applies to admissions in fact does not give parents the right to choose the school that their child attends. The parent’s right is only to express a preference for the school at which they wish their child to be educated.
The expectations of parents in terms of what can be achieved by resort to the law, whether through statutory appeals or judicial review, will often therefore be unrealistic — and legal challenges will continue to proliferate.
THE FIVE-YEAR PLAN
It is anticipated that the next few years will continue to see scrutiny surrounding the fairness and effectiveness of admissions arrangements, particularly in view of the government plans to boost the number of foundation schools as announced in the Government’s five-year plan for education.
The five-year plan states that ‘the strict requirement for fair admissions will remain; we will not allow an extension of selection by ability, so that schools cherry-pick pupils at the expense of parental choice and other schools’.
There must, however, be concern that an increase in the number of schools with foundation status will only lead to the admissions process itself becoming even more complex and time-consuming.
Do the codes lack teeth?
If this is the case, then it may be that the implementation of this other political agenda will make it clear that the current codes of practice on school admissions and admissions appeals lack the force necessary to ensure that good practice is widely applied.
It will bring about recognition that there is a need for shift in the balance towards greater statutory regulation of admissions and appeals activity. Certainly there are interesting times ahead.
Amelia Wallington is a solicitor at Browne Jacobson. You can email her at email@example.com
Must the LEA always comply with parental preference?
Not in all circumstances. Admissions authorities are required to comply with any parental preference unless to do so would:
- prejudice efficient education or the efficient use of resources
- be incompatible with admissions arrangements designed to preserve the character of a foundation or voluntary-aided school
- be incompatible with arrangements for selection by ability and aptitude, where arrangements are based on admitting only pupils with high ability or with aptitude
Prejudice to efficient education cannot be claimed unless the standard or admission number is exceeded.
What criteria can we use?
Case law indicates that any reasonable criteria may be used to meet local circumstances, so long as the criteria have a practical or educational justification.
Criteria used must be objective. They commonly include:
- health concerns
- special educational needs
- aptitude and ability
From 2004/05, an admissions authority will not have to offer a place at a school for which a parent has expressed a preference if the child is offered a place at another school for which the parent has also expressed a preference (Section 86 of the School Standards Framework, amended by the Education Act 2002).
Tactically, therefore, parents will often have to decide whether it is a good idea to use all three preferences or whether to concentrate on only one.
In addition, where a popular school is known to be over-subscribed, or where a school operates a selection test, parents may decide not to choose it at all, on the basis that a place at a second-preference school may be lost to those who nominated it as first choice.
There is evidence to suggest that parents are making such strategic decisions about the schools they nominate based on their chances of securing a place there — and concern that this aspect of the admissions system has meant less choice for poorer pupils.