Dai Durbridge reviews the new admissions codes and appeals procedure and considers whether the balance of power has shifted in favour of admissions authorities

Since Legal Expertise focused on school admissions in March 2008, The Department for Children, Schools and Families have published an updated admissions code and appeals code, in force since 10 February 2009.

1. Are more bodies acting as their own admissions authority?

It appears as though they are, yes. Local Authorities still act as admissions authorities for the vast majority of schools, but alongside those we are seeing more and more academies, foundation schools, trust schools and voluntary-aided schools who act as their own admissions authority and therefore have the power to set their own policy (including the oversubscription criteria) and to arrange and administer appeal hearings.

2. Has this approach been strengthened by the new admissions code?

Not really, no. While the drive towards autonomy within schools remains, it has received no greater emphasis in the new code. It is true to say the code has been updated, but while there is more of a focus on promoting community cohesion through the admissions policy, there is little substantial change to the admissions system itself.

3. Has further guidance been offered on acceptable oversubscription criteria?

As before, where a school is undersubscribed, all applicants must be accepted (other than in the case of a selective grammar school). Where a school is oversubscribed, all applicants must be assessed against objective oversubscription criteria. The new code is keen to emphasis that clarity is most important – parents need to easily understand the criteria and assess whether they have a reasonable chance of obtaining a place at a particular school. As with the previous code, the new version sets out a list of points that must not be used. These include, prioritising children by background, achievement or parental qualifications, and taking account of reports of children’s past attendance, attitude or achievement, whether good or bad.

4. Do all policies now comply with the admissions code?

While the vast majority are compliant, some admissions authorities still fall foul of the code. Difficulties in clearly setting out the evidence required for admission by virtue of social or medical need and issues with catchment areas have caused some problems. Failing to comply with the code can be a reason for a referral to the schools adjudicator who will then consider whether a particular policy is code-compliant. Decisions taken by adjudicators are binding on all parties involved and can only be challenged through judicial review, which can be very costly.

5. Are admissions authorities seeing fewer appeals?

Unfortunately not. The appeals code, while also being updated, has not changed significantly and so there is still an overwhelming weighting in favour of parents. Not only can they appeal a decision not to award their child a place at a chosen school, they can also appeal on the basis that they want their child to be placed at a school that was not even named on their application form. In short, parents can, if so minded, appeal for absolutely any school, even if their child was awarded a place at their first choice school.

6. Does this mean that the admissions authority has to hear the appeal?

Yes, it does. Where the school is its own admissions authority they must convene an independent appeal panel to hear the appeal, otherwise the local authority acting as the admissions authority will handle the appeals process. This can be costly and time-consuming. It is estimated that where a school is its own admissions authority, hearing 10 appeals over a 2-day period will cost an admissions authority anywhere from £2,000 to £4,000 in costs, expenses and administration.

7. Can appeals be avoided?

No. The absolute right of appeal means any parent can appeal for any school. However, ensuring your admissions policy complies with the code will go some way to safeguarding against too many appeals and go some way to reducing the prospects of success of appeals that are made. The best way to do this for your policy to be checked thoroughly before it goes out to consultation. While this may incur a fee, it is likely to significantly reduce the risk of an expensive legal challenge and should hopefully reduce the number of appeals faced.

This e-bulletin issue was first published in May 2009

About the author: Dai Durbridge is a solicitor for Browne Jacobson specialising in child protection and education.