It is vital to know the new changes to the law — especially if your school is its own admissions authority, writes Ingrid Sutherland

There have been important changes to the law on school admissions. In addition to the Education and Inspections Act 2006 (and related regulations), there is a new school admissions code, issued in February 2007 and a new appeals code, effective from January 2008. It is important for all schools to be aware of these changes — especially schools that are their own admission authority, such as voluntary aided and foundation schools, and academies.

This article will highlight the main changes in the law and guidance on school admissions.

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

New codes are mandatory All individuals and bodies dealing with school admissions ‘must act in accordance with’ the new codes’ mandatory provisions. They are no longer ‘codes of practice’ — their new status allows them to impose mandatory requirements, not just to recommend good practice. Discretionary practice should be followed unless the relevant body can demonstrate, if challenged, that it is justified in not doing so.

Which applications? The codes apply to applications made in late 2007 to start school in September 2008. This has given admission authorities (i.e. local authorities for community and voluntary controlled schools, and voluntary aided and foundation schools’ and academies’ governing bodies) time to consult on, and publish, their admission arrangements.

The codes place more emphasis on fairness. There is no change to the law that parents can state a preference for the school they would like their child to attend, and can give their reasons for this. But a school that is full can refuse the application.

Oversubscription criteria The admissions code has more detail on these. The code prohibits a number of unacceptable criteria — such as taking account of a parent’s occupation, or their financial or marital status, as well as the ‘first preference first’ criterion.

All preferences must now be treated equally. The place in which a parent ranks a preference will only be taken into account if a parent can be offered more than one preference. Looked-after children must be given top priority in the oversubscription criteria for all schools.

Looked-after children Local authorities are no longer required to make arrangements to allow the governing body of one of their community or voluntary controlled schools to appeal against a decision by the authority to admit a child who had been permanently excluded from two or more schools, if the child is looked after by a local authority.

Instead, in these cases, the matter should be referred to the adjudicator. Local authorities must notify the school’s governing body of the decision, and the governing body has seven days to refer the matter to the adjudicator on ‘serious prejudice’ grounds.

‘Serious prejudice’

If the adjudicator agrees that there would be ‘serious prejudice’, the decision to admit the child ceases to have effect. But the adjudicator may, with the agreement of the local authority that looks after the child, determine that another school should admit the child. The adjudicator cannot name another school if the child has been permanently excluded from the school, or if the admission of the child to the school would cause ‘serious prejudice’.

Direction to admit a looked-after child

As these children often have to move school during the school year, their corporate parent has the right to direct any school (other than one for which it is the admissions authority) to give them a place — even where the school is full, provided the child has not been permanently excluded from the school. Again, the school can object to the adjudicator about such direction on ‘serious prejudice’ grounds. The adjudicator may determine that another school admit the child — on condition that the local authority that looks after the child agrees, and it is not a school from which the child has been permanently excluded, or to which admission of the child would cause  ‘serious prejudice’.

Admissions

Selection

Pre-existing selection is allowed to continue, both in terms of academic ability and aptitude. But the 2006 Act imposes a general restriction on any new selection by ability.

Interviewing

There is now a statutory ban on interviewing as part of any admission arrangements, covering admission to sixth form as well.

Religious character

All foundation and voluntary aided schools with religious character must consult a named body or person (to be prescribed by regulations) about their proposed admission arrangements — e.g. their diocesan board.

Duty of governing body

The duty on community and voluntary controlled schools to comply with their local authority’s decision to admit a child does not affect the governing body’s right to appeal against the admission of any child who has twice been permanently excluded. Nor does it affect the requirement for the local authority to seek governing body consent to the introduction of pupil banding to the school’s admission arrangements. The governing body of any maintained school must also comply with a local authority decision to admit a child under the area’s co-ordinated admissions scheme.

Alteration of arrangements
Approved admission arrangements for new schools, or expanded existing schools, must remain unchanged for the year when the school is established or expanded and for the two subsequent school years (so that those considered and approved by decision-makers remain in place for a reasonable period).

Admissions authorities may apply to the adjudicator for variations of those arrangements within the above period.

The adjudicator

Previously, an adjudicator’s determination of an objection was binding on parties to the objection only for the school year to which the admission arrangements related. This could have meant that admission criteria determined unfair by the adjudicator were reinstated the following year, which could, in turn, lead to repeats of earlier objections to the adjudicator. Now, determinations by the adjudicator will remain effective as above, or for any lesser period as determined by the adjudicator, subject to admissions authorities being able to apply to the adjudicator to vary arrangements.

Objections

The scope of who can make objections to admissions arrangements has been broadened. The adjudicator is no longer required to refer objections about admissions criteria relating to a person’s religion or religious denomination to the secretary of state. Parents, too, have important new rights to object to the adjudicator if they believe that any aspect of a school’s admission arrangements fails to comply with the law or the mandatory requirements of the codes.  

LA directions to admit

Local authorities can direct the governing bodies of schools for which they are not the admissions authority to admit a child where the child has been refused admission to, or been excluded from, every school within a reasonable travelling distance. Governing bodies can now refer such a direction decision to the adjudicator (rather than to the secretary of state) to determine which school should admit the child.

Pupil banding

The use of banding, as a way of allocating school places, has been expanded. It is no longer necessary to introduce it via statutory proposals. If the local authority is the admissions authority, it must secure the consent of the governing body to do this.

Tests
Two High Court judgements involving selective schools in the Wirral laid down that parents should be asked to express preferences before the outcome of selective tests were known.

The new code reverses this by stating that parents should be informed of the outcome of entry tests before they make their applications for other schools. Although not mandatory, this has led to some application timetables being brought forward.

Miscellaneous

All schools will now be members of their local admission forum, which will have the power (not a duty) to produce an annual report on how well the admission arrangements of all schools are serving the interests of all pupils. All local authorities must provide advice and support for those families who need the most help in applying for a secondary school for their child.

Appeals The appeals code acknowledges the burden on schools of administering appeals, but notes that appeal panels established by own-admissions authority schools are often found failing by the local government ombudsman, when they could avoid this by working together or with their local authority.

The code advocates a collaborative approach, as already exists in many areas with recruitment, training and administration. This leads to greater independence and consistency. It also removes the administrative burden from schools.

Panel membership and training

The code is clear that anyone who has a connection with the school under appeal or who could in any way be perceived as being partial must not sit on an appeal panel. Panel members must now receive suitable training, and clerks must be independent of the school and local authority.

Timetable

The appeals code specifies the timescale for holding an appeal:

  • for the secondary admission round, appeals for decisions sent out on the national offer date of 1 March must be heard by 6 July
  • appeals for on-time primary appeals must be heard within 30 school days of the closing date for appeals to be lodged

Appeals for all late applications should be included with those being heard for the same admissions round. If this is not feasible, they too must be heard within the 30 school day limit, as too must appeals for in-year applications.

Representation

Where the admissions authority sends more than one person to present its case, there should be only one presenting officer so that parents do not feel outnumbered. A head teacher or other appropriate person may accompany the presenting officer to answer questions about the school, but only for this purpose.

Infant class size

Arrangements for these appeals are tightened. Looked-after children are added as a category of ‘excepted pupils’, which means that they could be admitted as a 31st child in an infant class for the year of admission, without the school having to take ‘qualifying measures’, such has employing another teacher or building an extra classroom, to meet the infant class size legal limit of 30. A school can, however, argue ‘future prejudice’ if it would have to take such measures in a subsequent infant class year.

Balancing Act

The law and guidance try to strike a balance between tensions in the system — the right of parents to be treated fairly on application and appeal, and the right of schools to have protection against admitting so many more children than planned, that it will have a detrimental effect.

In-year fair access protocols These are now mandatory. They replace the discretionary ‘hard to place pupils’ protocols’.

They ensure that the time children spend out of education is kept to a minimum, and that all maintained schools and academies in an area take their fair share of children with challenging behaviour. While this protocol may mean a child is allocated a place at a particular school, this does not override parental preference. Parents may still express a preference for any school and, if refused a place, have a right of appeal. If an application is refused when there are places, the admissions authority must explain the refusal, demonstrating how admission would prejudice the school. Where a school may have admitted over its published admission number to comply with a protocol, in the first ‘factual’ stage of an appeal hearing, the panel must consider the effect of the protocol. Panels must not treat the admission of children under the protocol as an indication that a further child could be admitted without causing prejudice, as such children are admitted owing to  exceptional circumstances. The panel must take into account the school’s obligation to admit such children throughout the year when deciding whether to allow appeals.

Ingrid Sutherland is a solicitor, giving advice and training for the Advisory Centre for Education Find out more
Downloadable files of The School Admissions Code and the School Admission Appeals Code.

The Education and Inspections Act 2006

and related admissions regulations

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