Admissions Appeals Guidance 2015

SCHOOL ADMISSIONS APPEALS – some legal pointers for parents

On 2 March 2015 all parents who have applied for a secondary school place for their child will receive notification of what school place they have been allocated. (For primary and junior school places the offer date will have been fixed by the local education authority.)

Many parents will find they have failed to secure a place at any of their nominated schools and will want to consider whether they can try to challenge this.

The school admissions system has a nationwide legal framework (in England) which is governed by the (1) Schools Admissions Code and the (2) School Admissions Appeals Code (along with supporting statutory regulations).

In simple terms the first regulates how the admissions criteria for a school is set up, and the second sets up a formal appeals system and procedures that should be followed if a parent appeals against the refusal to grant a place at a school they applied for.

All admissions appeals for 2015 will be dealt under the School Admissions Appeal Code 2012 (to be read alongside the School Admissions (Appeals Arrangements) (England) Regulations 2012.) It applies to all appeals lodged in respect to any maintained schools in England (including academies.) This is a much slimmed down version of its predecessor and has incorporated several key changes. The 2015 round of admissions appeals will be the first real test of this overhauled system to see if the new Code meets its stated purpose of ensuring that “admission appeals are heard in a fair and lawful way”.

Schools Admissions LawEach school or academy has a designated Admission Authority that is responsible for the whole admissions process. It should be clear from the admissions paperwork who the Admission Authority is for a particular school, but if there is any doubt there is a useful table in the Appeals Code that parents can check.
The old national timetable to dealing with admissions appeals has been replaced. Each Admission Authority must publish its own admission appeals timetable for organising and hearing appeals on their web site by 28 February each year. Parents should check this.
Parents must follow the appeals process and strict time limits apply to lodge an appeal (in writing setting out their grounds of appeal.)

The good news is that the time allowed has been increased to “at least 20 school days “( Note :The actual length of time given will have been set by the individual Admission Authority in their timetable.) This appeal letter and any supporting documents are extremely important because they should set out the parental case for why their child should be granted a place at the school in question. If parents are considering whether or not to appeal, and/or want assistance to prepare the appeal documents this is the optimum time to seek independent legal advice. This should be done as early as possible to allow as much time as possible to prepare their appeal and gather any evidence in support.

There is an opportunity to submit late evidence and the deadline for this will be fixed as part of the Admission Authority timetable. I would suggest that submitting late evidence should be avoided if at all possible because it is unclear that the Independent Appeal Panel hearing the case will take account of any documents lodged after the hearing bundle has been sent out. [paragraph 2.10]
At the appeal hearing there is a two part process for the panel to go through. In relation to the first stage the appeal code sets out:

3.2 The panel must consider the following matters in relation to each child that is the subject of an appeal:

a) whether the admission arrangements (including the area’s co-ordinated admission arrangements) complied with the mandatory requirements of the School Admissions Code and Part 3 of the School Standards and Framework Act 1998; and

b) whether the admission arrangements were correctly and impartially applied in the case in question.

3.3 The panel must then decide whether the admission of additional children would prejudice the provision of efficient education or the efficient use of resources.

 

Appeals and School AdmissionsIn the experience of the author it is rare that an admission authority slips up on 3.2 a) or b). However, the paragraph 3.3 issue can be critical in achieving as successful outcome to the appeal. If the Admission Authority cannot prove prejudice the Panel has to uphold the appeal at this first stage. Case law has determined at this stage the characteristics and circumstances of the particular child in question will not, except in extreme cases, be relevant to the question of whether the admission will cause prejudice (R (on the application of M) v Haringey Independent Appeal Panel [2010] EWCA Civ 1103).

Parents should be aware that if the number of appeals for a place at particular school are so numerous that granting all of those children a place would cause prejudice for the school, then their case (and all the others) has to go to stage 2 of the appeal process.

The predecessor to the current Code made explicit requirements for the admission authority to provide certain evidence that addressed the stage 1 issues.[ old Code 2.20] This has been watered down in the new paragraph 2.9. In particular references to evidence about net capacity are absent, and the need to produce “ statements referring to accommodation, class sizes, capacity etc, must supported by factual information” has been swept away to be replaced by phrases like “all relevant documents” Paragraph 2.9. No doubt some admission authorities will continue to provide the same evidence they always have to the appeal panel. However, parents need to be alert to the risk that an appeal that might have succeeded on the prejudice argument in the past might not do so now if the same level of information is not provided.

By way of example, being simplistic, most prejudice arguments relate to the physical capacity of the school to accommodate certain numbers on its roll. The PAN (planned admission number) is when a school fixes how many students it is going to admit into each year group. To help it fix PAN it uses net capacity which is a universally applied formula to calculate all the floor space available across the school’s accommodation. The net capacity assessment will show a lower and upper limit – the latter is regarded as an indicator of how many pupils a school could have on its roll. If a Panel has the net capacity assessment it will help it to assess whether the school has room to take on more students than it currently has. This directly affects the prejudice argument.

Under the old code the admission authority had to submit its evidence to the panel clerk at least 10 school days before the hearing. Under the current code the admission authority’s timetable will set “a reasonable deadline.” Para 2.1. What if it is less than 10 school days? Will parents have time to ask for key information if the admission authority has not provided it? The current code may be creating a situation where parents need to make a pre- emptive strike by asking for the admission authority for certain key pieces of information in advance of the deadline for submitting its evidence. Parents may wish to seek independent legal advice on this issue.

If the appeal has to proceed to the second stage the panel must balance the prejudice to the school against the appellant’s case for the child to be admitted to the school. It must take into account the appellant’s reasons for expressing a preference for the school, including what that school can offer the child that the allocated or other schools cannot. If the panel considers that the appellant’s case outweighs the prejudice to the school it must uphold the appeal. [Paragraph 3.8]

Since most appeals proceed to the second stage, for the majority of parents their written case and the evidence they produce to support it will be critically important. The Panel will have seen this in advance. The hearing will be the chance to re-inforce that case.

Parents should be aware that initially their case is just judged on this balancing exercise between their case and the school’s case on prejudice, and in whose favour that balance should fall. But if there are lots of other appeals relating to the same school paragraph 3.9 will come into play.

“ where the panel finds there are more cases which outweigh prejudice than the school can admit, it must then compare the cases and uphold those with the strongest case for admission. Where a certain number of children could be admitted without causing prejudice, the panel must uphold the appeals of at least that number of children.”

In other words the parental case must be strong enough to prevail over any of the other cases when the panel has to make comparisons. In practice this can be a very high hurdle to overcome.

Parents who embark on the admissions appeal process can find it hard and stressful. In relative terms there are only a small number of appeals that succeed each year. Grammar schools, faith schools and infant school appeals have additional factors that have to be considered. Some parents find it useful to take independent legal advice on the likely strength of their case before they take the decision whether or not to appeal.

Education Law BarristersEducation Law Barristers provide advice to parents and guardians about bringing a challenge on admissions processes.

Contact us in strict confidence to see how we might be able to assist you.

Paula Clements
Education Law Barristers