WESTMINSTER DIOCESE EDUCATION SERVICE
Admissions and Appeals:
Guidance for the Governing Bodies of Roman Catholic Voluntary Aided Schools.
June 1999
Contents
Page
Introduction 5
Section A: Admissions: The Legal Framework 7
Section B: Oversubscription Criteria: Recommended Good Practice 13
Section C: Admissions: Some Common Questions 19
Section D: Appeals Against Admissions decisions 25
Section E: Appeals; Some Common Questions. 33
Annex 1: Infant Class Size: Implications for Appeals. 35
Annex 2: Model Letters 37
Annex 3: Sample Priest’s Reference Form 43
Annex 4: Selected Case Law 47
Annex 5: Selected Ombudsman's Reports 51
Annex 6: Suggested Admissions Policy 55
Annex 7: Suggested Order of Proceedings for Appeal Hearings 57
Introduction.
This guidance is substantially based on the Codes of Practice on Admissions and Appeals which were published as a result of the School Standards and Framework Act, 1998. The Act requires admissions authorities to have regard to the relevant provisions of the Codes of Practice. This guidance does not reproduce the Codes of Practice in full. Rather, it focuses on those areas that are of most concern to the governing bodies of Roman Catholic voluntary aided schools within the Diocese of Westminster. Governors and panel members most directly concerned with admissions and appeals against admissions decisions will need to be thoroughly familiar with both Codes of Practice as well as this guidance.
A. ADMISSIONS: THE LEGAL FRAMEWORK
A1 This section describes the primary legislation, regulations and case law most relevant to maintained Catholic school governing bodies. Governors and clerks most concerned with admissions should be familiar with these provisions in some detail. Whilst every effort has been made to ensure the accuracy of this guidance, it must be noted that it does not provide a definitive interpretation of the law. That is entirely a matter for the courts.
It must also be noted that the responsibility for publishing policies and procedures, which comply with the law, rests with the governing body, not with the Westminster Diocese Education Service.
Admission Authority.
A2 The admission authority in a Catholic voluntary aided school is the governing body. [School Standards and Framework Act, 1998 section 8]. The governing body is responsible for
The governing body’s policy for determining admissions must be agreed by the full governing body. Any decision regarding the question of whether any individual child be admitted in accordance with the policy may be delegated to a committee. By virtue of section 46 the Education (School Government) (England) Regulations, 1999, any such committee must include the headteacher. (These Regulations were in draft form at the time of writing. If, as a result of consultation, this provision is deleted or amended, an addendum to this guidance will be issued).
Consultation.
A3 There are new arrangements for consultation on policies and procedures for admissions from September 2000 onwards. [1998 Act, section 89] The governing body must consult the following on the proposed admission arrangements
A4 The LEA will define the relevant area, which may include parts of neighbouring LEA areas. For secondary schools, the area must include at least the whole of the LEA’s area. ‘Consultation’ means informing those to be consulted about the proposed admission arrangements, considering the views that are expressed and taking them into account when reaching final decisions.
A5 An admission authority may object to the arrangements published by another admission authority. If the objection cannot be resolved, it may be referred to an adjudicator, for determination. [1998 Act, section 90].
A6 Admission authorities in an area may establish Admission Forums where this seems an appropriate way to manage the required consultation. This is not a statutory requirement and there is no obligation for an admission authority to participate in any forum, which may be set up. However, a failure to participate where a forum has been established and is generally considered to be effective could be regarded as unreasonable.
The adjudicator does not have the power to determine disputes relating to a person’s religion, religious denomination or religious practice. Any disputes of this kind must be referred to the Secretary of State for Education and Employment.
Publication of Policies.
A7 The governing body must publish annually its arrangements for admissions and appeals for the forthcoming admissions year. Where the governing body agrees, the LEA may publish on its behalf.
Parental Preferences.
A8 Local education authorities (LEAs) are under a legal duty to have regard to the principle that pupils are to be educated in accordance with the wishes of their parents, insofar as that would be compatible with the provision of efficient education and training and the avoidance of unreasonable public expenditure.
A9 Section 86(1) of the 1998 Act requires LEAs to make arrangements for enabling the parents of children in their area to express a preference as to the school where they would wish their child to be educated and to give reasons for the preference.
Section 86(2) requires LEAs and governing bodies to comply with the preference. The duty does not apply
If a governing body refuses a place to an applicant, the refusal must be grounded in one of these statutory reliefs.
Section 86(2) is explained in more detail in the following sections;
A10 Prejudice to the provision of efficient education or the efficient use of resources. In order to claim that the admission of a further pupil would prejudice efficient education or the efficient use of resources, the governing body must receive applications in excess of the standard number or any higher published admission number. Places must be offered up to the standard number by applying the published oversubscription criteria. Thereafter, places are refused because there are others with a stronger claim for the available places according to the governors’ policy. The letter issued to parents must clear how the policy has been applied in their case.
From 1 September 1999, a school’s standard number will be either
Whichever is the highest.
This will apply to any new schools, or schools, which are enlarged or subject to a change of character under proposals which fall to be determined by the SOC
A11 The standard number applies to the ‘relevant age group’, that is, the year group to which pupils are normally admitted. Some schools have more than one standard number, for example, in Harrow where pupils are admitted to the high schools in both Year 7 and Year 8 and where there are schools which recruit students into the sixth form.
A12 The standard number is the minimum number of places that a governing body must offer, if there are sufficient applications. A higher admission number may be published if there is available accommodation. Pupils should be admitted above the published admission number only in exceptional circumstances and never when to do so would breach infant class size regulations.
A13 A pupil may not be refused admission to a school on the grounds of efficient education or the efficient use of resources unless the standard number or any higher published number has been reached.
A14 Governing bodies must keep standard numbers under review. If accommodation is added or removed, it may be necessary as a consequence to amend the standard number. From September 1999, variations in standard number no longer require the approval of the Secretary of State. Decisions will fall to the School Organisation Committee and, if necessary, the adjudicator. Before a proposal to vary a standard number is taken to the SOC, consultation must take place with other admission authorities in the relevant area and statutory proposals must be published.
A15 Preserving the religious character of the school. By virtue of section 91 of the 1998 Act, the governing body of a voluntary aided school may, subject to the agreement of the LEA, include within its admissions policy arrangements to preserve the religious character of the school. If the LEA does not agree, the matter must be referred to the adjudicator. If the adjudicator is able to reach agreement with the governing body, the determination is binding on the LEA and any other objector. If agreement is not reached, the question may be referred to the Secretary of State for Education and Employment for determination. The determination of the Secretary of State is final and binding, other than by challenge in the courts.
It should be noted that reference to the Secretary of State applies only to any arrangement to preserve the religious character of the school. It does not apply to any other provision, where the determination of the adjudicator is binding.
A16 Catholic school governing bodies need to consider carefully where prejudice to the Catholic character of the school is likely to occur. The Bishops of England and Wales have proposed that that prejudice may occur where more than 10% of the pupils on roll are not baptised Catholics. This indicator is provided for guidance only. Many Catholic schools have admitted more than 10% without any danger of prejudice, where parents and pupils have declared themselves to be in sympathy with the school’s aims and ethos. In these schools, governors are rightly reluctant to turn away such pupils, when the alternative is to hold vacancies and lose income.
Conversely, a minority of pupils (less than 10%) can cause prejudice by opting out of RE and collective worship, or failing to support the school’s religious aims.
Governing bodies are most likely to wish to have a local agreement restricting non-Catholic admissions in areas where either,
Governing bodies wishing to enter into a local agreement to restrict admissions and hold vacancies open, to preserve the Catholic character of the school are strongly urged to consult the WDES before approaching the LEA.
A17 Admission by reference to academic ability. Only one school within the Diocese of Westminster is designated as a ‘grammar school’. No other school has authority to apply selective admission arrangements. Sections 99 to 102 of the 1998 Act prohibit the introduction of any new selection on the grounds of ability other than by ‘banding’ or for sixth forms.
A18 Infant Class Sizes. Admission authorities are required to ensure that, from September 2001, no 5, 6 or 7 year old will be taught in a class of more than 30 pupils with a single teacher. Governing bodies must ensure that, with immediate effect, arrangements are in place to ensure that this requirement will be met by the required date.
A19 The following exceptions may apply:
Exceptions will be permitted for the remainder of the academic year only.
A20 Admissions authorities have been given powers to ensure that arrangements can be made in time, including, where necessary, the power to amend the school’s standard number.
Banding.
A21 Banding is permitted by section 101 of the 1998 Act and may be used by comprehensive schools to ensure a balanced intake. The arrangements must secure that, in any year, pupils admitted into a normal year of entry are fully representative of the range of ability amongst pupils applying to the school for that year of entry. No level of ability may be substantially over or under represented. Pupils applying may be tested and placed into appropriate ability bands as a result of the test. Normal oversubscription criteria are then applied if there are more pupils falling within a particular band than there are places allocated to that band. Schools may not keep places empty within a band if there is a demand for places within the school as a whole.
Home-School Agreements.
A22 School governing bodies are required to adopt home-school agreements with effect from September 1999. Governing bodies may ask parents to sign these agreements, but not until the child has been admitted to the school. They may not be used as a condition to secure the offer of a place.
Compulsory School Age.
A23 Children are required to begin school at the start of the term following the child's fifth birthday. These dates are set as 31 August, 31 December and 31 March. Parents are not required to send their children to school until the compulsory age is reached. Admission authorities which make provision for younger pupils cannot require parents to take up the provision. There is no vacancy in a reception class if a place has been allocated, but not taken up.
All applications for places in a reception class should be dealt with at the same time, regardless of the term in which the child is entitled to start, or actually wishes to start. This does not apply to nursery provision, which may be allocated term by term, even if part of the provision is made in the reception class.
Powers of Direction.
A24 The LEA can direct a school to admit a pupil where he or she has been permanently excluded from, or refused admission to every school that provides a suitable education within a reasonable distance of the home. The LEA must first consult the governing body and consider any objections. The governing body may refer the direction to the Secretary of State for Education and Employment for determination, if it believes the LEA is acting unreasonably.
The power of direction does not apply if, in consequence, a Key Stage 1 class would have more than 30 pupils with a single teacher.
Governing bodies may wish to consider referring the matter to the Secretary of State if, for example, the pupil who is the subject of the direction is not a Catholic, there is a waiting list containing Catholic pupils and there appear to be vacancies in community schools in the locality.
Pupils with Statements of Special Educational Needs.
A25 The general provisions in the 1998 Act do not cover pupils with statements of special educational needs. If a child has a statement, the LEA is responsible for arranging provision. The suitability of a school is considered when finalising a statement or conducting an annual review.
If the parent of a child with a statement wishes to appal against the choice of school named in the statement, the appeal is to the special educational needs tribunal, not to the local appeal panel. Where a school is named in the statement the governing body has a duty to admit the child to the school
Further guidance is given in the special educational needs Code of Practice.
Admissions: Further Guidance.
Enquiries may be sent to
School Admissions Team, Admissions and Information for Parents Division,
Department for Education and Employment, Sanctuary Buildings,
Great Smith Street, London SW1P 3BT
Tel 0207 925 6273 Fax 0207 925 5179
E-mail school.admissions@dfee.gov.uk
Further copies of the Code of Practice are available from
DfEE Publications PO Box 5050 Annesley Nottingham NG15 0DJ.
Tel 0845 602 2260 Fax 0845 603 3360 E-mail dfee@prologistics.co.uk
Please note that the WDES cannot supply DfEE publications.
B: OVERSUBSCRIPTION CRITERIA. Recommended Good Practice.
B1 Governing bodies have a wide discretion to determine how places will be allocated when there are more applications than places available, provided they are reasonable. There are, however, some general restrictions.
B2 There must be no breach of primary legislation. For example, pupils cannot be turned away on grounds of race, or, unless the school is specifically designated as being for girls or boys only, gender. Whilst this may appear to be self-evident, care is required. A policy, which appears to be lawful, may have an indirect discriminatory effect and could be open to challenge. This could happen, for example, where schools give priority to applicants with parents or grandparents who attended the school but who no longer live in the area.
B3 There is nothing unlawful in defining ‘catchment areas’, which might be, for example, parishes or parts of parishes. Care must be taken not to guarantee a place to a resident of a catchment area/parish.
B4 Catholic school governing bodies have an over-riding duty to offer places to Catholics first. This is an explicit requirement of the trust deed. Catholic schools must not operate ‘siblings first’ or ‘first preferences first’ policies if the consequence is to offer a place to a non-Catholic and deny a place to a Catholic.
‘Catholicity’.
B5 Catholic schools have the right and privilege of being able to offer places to Catholics before any other applicants. This must not be abused and it must be clear to all, not just the Catholic community, how any objective test of ‘practising Catholicity’ will be made, if required.
B6 A Catholic applicant is one who holds a certificate of Baptism. or documentary evidence of reception into full communion with the Church. If the school is over-subscribed with Catholic applicants, other criteria are required and, in facing this task, the Catholic school governing body is in exactly the same position as any other admission authority. The same principles apply.
B7 Some governing bodies wish to differentiate between Catholic applicants by distinguishing and giving priority to those who practise the Faith, through regular Mass attendance and reception of the sacraments.
B8 It is widely acknowledged that any attempt to define what 'practising Catholic' means is likely to cause difficulty and be open to different interpretations. For the purpose of determining admissions to schools only, The Education Board of the Diocese of Westminster offers the following advice:
B9 A possible Priest’s Reference Form is attached as annex 3 to this guidance. This should be the subject of discussion within deaneries and adapted to meet local circumstances. The Education Board expects that the reference form agreed by each deanery will be adopted for use by schools within that deanery. There is also an expectation that, as a result of discussion, there will be a clear consensus resulting in consistent interpretation and application of the agreed procedure.
Interviews.
B10 The Code of Practice on admissions permits Church schools to carry out interviews of prospective applicants, but only to assess religious or denominational commitment.
B11 Where a governing body determines that interviews are necessary, the following principles must be observed.
Other Oversubscription criteria.
B12 All criteria must be fair and reasonable, readily understood by parents and clearly justifiable. There is no prescribed list of acceptable and unacceptable criteria. Any list that might be drawn up could not be definitive or exhaustive.
B13 The following cover many of the generally accepted principles:
Criteria generally considered being acceptable
Criteria generally considered being unacceptable.
School Admissions: Some Common Questions.
The following section lists some of the questions that are often asked about oversubscription criteria:
Q1 May the governing body request sight of the child's certificate of baptism?
Yes, this is something schools should do. It is clear, objective evidence that an applicant is a Catholic and is essential in the operation of a 'Catholics first' policy.
Q2 And other documentary evidence?
Governing bodies are entitled to request evidence in the form of documentation where this is necessary to operate a particular criterion. For example, evidence of an address where a proximity criterion is used; evidence of exchange of contracts on a house for a family claiming to be moving into the area; evidence from a doctor or social worker for an applicant claiming special consideration on medical or social needs, for example. It is not appropriate to request documents which do not relate specifically to one or more of the oversubscription criteria, for example, school reports, test results, or bank statements.
Q3 Where criteria refer to 'practising Catholics' does this mean the children or the family?
The policy of the bishops in the Diocese of Westminster is that places should be offered to members of Catholic families who could be expected to give unqualified support to the specific aims and religious ethos of the Catholic school. It should be noted that this policy refers to support for the school and not a specific church or place of worship. (See also Q5). It is difficult if not impossible for a small child to produce evidence of practise. There may be circumstances, however, where an older child demonstrates practise and commitment lacking in the parents and this should be taken into account.
Q4 Who determines practice?
When the question of whether a person is a practising Catholic, for the purposes of admission to school, is in dispute, a priest should normally determine the matter. Where the governing body has set and published a definition of ‘practice’, the matter may be determined by a committee of governors by interview, subject to the reservations set out elsewhere in this guidance.
Q5. May the governing body give higher or lower priority to children from particular parishes?
Yes, but the parishes should be named in the over-subscription criteria. This may be particularly appropriate when taking account of alternative schools available to parents.
Q6 When the governing body talks about 'the parish', should we refer to residence within the parish or to those who regularly worship at a particular church?
In Church law, a 'parish' is generally territorial, unless the rite, nationality or language of the faithful determines that it should be otherwise. The parish is the community of the faithful whose pastoral care is entrusted to a parish priest and, therefore, within a territorial area defined on a map. Whilst there are attractions and much legitimacy in defining 'parish' more loosely and including those who, for various reasons, cross territorial boundaries to worship, in practice, this is very difficult for governing bodies to manage. It is not unusual, for example, for families to travel many miles each Sunday to worship at a parish church associated with a school at which they would like a place. Equally, there are those who live in a parish near a favoured school who are required to worship elsewhere, perhaps because of the need to visit elderly relatives. Residence within the parish, notwithstanding worship elsewhere, has the merit of objectivity since an address can be verified and a parish boundary defined on a map. It also demonstrates that the governing body is committed to serving its own local community and offers the potential for encouraging the family to support the parish church in future.
Q7 May governing bodies specify which priest supplies the reference for an applicant.
No. The applicant should be free to approach any priest who can give the necessary testimony.
Q8. May the governing body set 'quotas' for named parishes?
Schools, which serve rural communities, are often faced with the conflict of wishing to offer places to children from distant parishes which have no parish school or where there are long-standing historical links. There are two widely used strategies to accommodate this difficulty
Places may be offered as priority to children from a named parish for whom this is the nearest Catholic school. This potentially displaces children who live nearby but for whom there are nearer alternatives, thereby releasing places for children at a distance for whom there is no alternative.
Setting 'quotas' or 'rations' of places for children in named parishes. The policy would need to be explicit about the number of places available and alert parents to the possibility of not securing a place. The procedures for offering places where the quota is exceeded should be clear and parents should have the opportunity of being considered for any places remaining within the overall total on an equal basis with other applicants.
Q9. Should the governing body give priority to siblings?
Not necessarily. The usual argument in favour is that this helps bond links between the school and families. It also provides a degree of domestic convenience for parents. However, schools should not operate a 'siblings first' policy, where the effect is to admit a non-Catholic sibling and deny a place to a Catholic applicant who may be the first or only child from a Catholic family. Governing bodies are advised to consider conferring priority to siblings only within a discrete criterion, to help differentiate between applicants when that criterion is over-subscribed.
Q10 What about more remote family connections?
Once an older sibling has left a school, the rationale for operating sibling priority weakens considerably. There is no overwhelming reason for giving priority to children whose older siblings no longer attend the school, particularly if this policy denies places to families who have moved into the area or have only one child. The case for giving priority to more distant family connections is weak and inappropriate, since it may not allow the school properly to reflect the current local Catholic community.
Q11. Should the governing body give priority on the basis of special, social or medical needs?
Some governing bodies wish to give themselves scope to offer a small number of places to pupils in exceptional circumstances should the need arise. Where governing bodies decide to include this criterion, the following factors should be borne in mind:
Evidence, or claims under this criterion must be made at the time of application. Governing Bodies should not accept a case which is put forward retrospectively.
The needs should be the needs of the child, not the social or domestic convenience of the family.
The case must be made for a place at the particular school in question, not a general need.
Examples might include: "(This) school has better disabled access than the nearer school:" "(This) school is more accessible to a clinic/hospital where regular treatment is required for a specific, named complaint:" "(This) school has a special unit able to meet specific identified needs" etc.
Examples which are not generally considered acceptable include, "my child is very able and (this) school has better examination results than others in the area:" "More children go on to Higher Education from (this) school":"(Her) grandmother attended (this) school:" "(This) school is on (her) father's journey to work:" "This family contributed generously towards the building fund at this school," etc. Some suggested wording is provided in the model policy in the annexes.
Q12. Should the governing body give priority to children who are already attending the nursery?
The point in favour is that this maximises the benefits of continuity and progression. There are, however, a number of potential difficulties that should be considered.
A one form-entry school with a nursery class offering a part-time mode of attendance may have more children attending the nursery than places in the reception class. Whilst the policy may state that there is no guarantee of a place, offering a high priority may raise expectations that there will in fact be a place for all nursery children in the reception class.
There is no appeal against the refusal to offer a nursery place since nursery education is non-statutory and non-universal. A parent denied a nursery place might be justifiably aggrieved on finding that there was little opportunity of securing a place in reception.
Nursery education is non-statutory provision. Parents are not obliged to take up nursery places even where offered and some choose not to do so. Any parent choosing an alternative to nursery education should not be disadvantaged when it comes to applying for a place at the statutory age.
Parents should be advised that taking up a nursery place does not guarantee a place in reception. All parents should be required to apply for reception places whether or not the child attends the nursery and all applications should be treated on an equal footing.
Governing bodies are advised to publish their arrangements for nursery admissions under a distinct and separate heading to reinforce the point that there is no automatic progression from nursery to reception.
It is however good practice to adopt arrangements for admission to the nursery, which closely resemble the arrangements for admission to reception.
Q13. the governing body offers reception class places in two/three phases. Should there be two/three batches of applications?
No. All applications in respect of a particular school year should be administered at the same time and all appeals heard regardless of the actual term of admission.
Q14. This is a school for girls/boys only. Should the governing body give priority to those who specify a preference for single sex education?
Many parents prefer single sex to co-educational schools. Parents applying to single sex schools are unlikely, however, to say anything other than "yes" in response to a question about their preferences in this respect. You may ask the question, but the answers are unlikely to help differentiate between applicants.
Q15 Can the governing body withdraw the offer of a place once it has been made and accepted?
If the governing body is able to demonstrate that a place has been secured by deception, for example, by supplying a false address to benefit from a proximity criterion, or by forging a reference from a priest, the offer of a place may be withdrawn. A strong case can be made where it can clearly be shown that a more deserving applicant has been deprived of a place and still wishes to have the place. A place should not normally be withdrawn simply as a punitive measure, where there is no other more deserving applicant who would take up the vacancy. The possibility that this might happen should, ideally, be printed on the school's application form.
The parents must be given the right of appeal if a place is withdrawn. If the child has started school, careful consideration should be given to the effect on the child, especially a very young child and the appeal committee should be given evidence that such consideration has taken place.
Q16 Can the governing body give priority to parents who name the school as first preference?
This situation will normally arise where the school participates in a co-ordinated admissions scheme, involving one or more admissions authorities using a common application form. Where there is a common form, all participating schools are listed and parents are invited to list preferences. The co-ordinating authority will then seek to accommodate first preferences before second preferences and so on. Applications may be refused on this basis, in accordance with section 86(6) of the 1998 Act.
Other schools may give priority to first preference applicants provided:
Q17 May governing bodies refuse to consider an application if the parents have also applied for a place in another school.
No. A responsible parent may legitimately apply to more than one school and indeed should do so if the first preference school is likely to be popular and over-subscribed. The first preference must be considered according to the published criteria, whether or not any other application has been made.
D; APPEALS AGAINST ADMISSIONS DECISIONS.
D1 In March 1999, the DfEE issued School Admission Appeals: Code of Practice. (Consultative Draft). This Code is made under section 84 of the 1998 Act and comes into force on 1 September 1999. It relates to admissions to schools in September 2000 and beyond. The Code replaces the Codes issued in 1994 by the local authority associations (which applied to LEA maintained schools) and by the DfEE (which applied to grant maintained schools) together with guidance from the DfEE, which applied to all schools.
Please note that this guidance from WDES is issued in June 1999 on the basis of the consultative draft. An addendum will be issued, if necessary.
D2 The Code is for those responsible for arranging appeals and panel members. There is an expectation that admission authorities provide clear and simple guidance for parents, based on the Code, but adapted for local circumstances. The information should include the name of a person who can answer questions on all parts of the appeal process. This may be the clerk to the governing body, a governor who is able to take on this responsibility, or, where the LEA makes the arrangements for appeals on behalf of the governing body, a named LEA officer.
Admission Appeals: The Law.
D3 The law requires admission authorities to have regard to the Codes of Practice on Admissions and Appeals and other relevant guidelines.
D4 The governing body of a voluntary aided school must make arrangements for enabling the parent of a child to appeal against any decision made by, or on behalf of the governing body refusing the child admission to the school. Joint arrangements by two or more admission authorities are permitted.
D5 Parents have the right of appeal in all circumstances except where the child has been excluded from two or more schools and at least one of these exclusions took place after 1 September 1997. The right of appeal is suspended for two years from the date of the second or subsequent exclusion.
D6 Parents have the right to appeal against every decision to refuse a place at a school.
D7 Paragraph 12 of Schedule 24 to the 1998 Act limits the circumstances in which an appeal panel may uphold an appeal where the child concerned was refused a place at a school because his or her admission would breach the limit for key stage 1 class sizes. Where a child has been refused admission to a school on the grounds that measures were required to keep to the statutory class size limit, the appeal panel can allow the appeal only where it is satisfied.
One effect of this change is to give appeal panels stronger powers to allow appeals where they are persuaded that the governors’ original decision was in error, since hitherto, the way in which the governing body reached its decision was not a matter to be determined at the first stage. Where the decision was not flawed, however, governing bodies have stronger grounds for refusing a place, where to do so would lead to a breach of the law.
Constitution of Appeal Panels.
D8 Sections 94 and 95 and Schedule 24 of the School Standards and Framework Act, 1998, make significant changes to the constitution of Independent Appeal panels and the procedures to be followed.
D9 The panel shall consist of 3 or 5 members made up of
At least one member must be appointed from each category.
D10 A lay member is a person without personal experience in the management of any school or the provision of education in any school other than as a governor or a volunteer.
D11 The following may not serve on admission appeal panels
D12 If a member of a panel of 5 members which has begun to hear an appeal dies, or is unable to continue through illness, the panel may continue provided there are at least three members and it includes at least one member from each of the prescribed categories. Joint arrangements may be made with other governing bodies except that any reference to 'the governing body' embraces all governing bodies involved. The duty to advertise for lay members remains in force.
D13 The governing body is under a duty to indemnify members of admissions appeals panels against any reasonable legal costs and expenses incurred by those members in connection with any decision or action taken by them in good faith in pursuance of their functions as members of that panel. In the Diocese of Westminster, legal expenses cover has been provided. Notification of any claim should be addressed to
The Legal Expenses Claims Department
First Assist Protection Group Limited
Marshall’s Court
Marshall’s Road
Sutton
Surrey SM1 4DU
Tel 0181 652 1313
Quoting reference number 33787.
In case of difficulty, please contact the Catholic Church Insurance Association on 0845 603 0337 or the WDES on 0207 798 9005.
The Powers of Appeal Panels
D14 Appeal panels may only hear individual appeals. They cannot hear complaints or objections to the local admissions process. This is the role of the adjudicator. They have no role in local admissions forums.
An appeal panel’s decision is binding on the governing body.
If parents believe that the panel has acted improperly, or unreasonably, they may complain to
The Commissioner for Local Administration, (The Local Government Ombudsman)
21, Queen Anne’s Gate,
London, SW1H 9BH.
D15 Application for Judicial Review may be an option open to parents. Where this is threatened, governing bodies must advise the diocesan insurers and request legal assistance. Failure to do this may render the policy invalid. (See D13 for details)
Neither the Secretary of State nor the WDES has any power to consider complaints against the decision of appeal panels.
Duty to Advertise for Lay Members.
D16 Governing bodies are under a duty to advertise, once every three years, for lay members of appeal panels. In most circumstances, the LEA is willing to perform this task on behalf of the governing body, but a clear and explicit arrangement must be in place. It cannot be assumed that this has happened by default. The names of those responding to the advertisement should be considered for appointment, but need not be appointed if they are considered to be unsuitable. Lay members of committees can often be recruited from governing body of a neighbouring school and many governing bodies have set up reciprocal arrangements.
Procedure.
D17 Where a child has been refused a place in a school, the governing body must write to the parents to give full reasons why this is the case. The letter must offer details on why the application was not successful, against the published criteria for the school. This letter must advise parents of their right to appeal.
D18 Appeals must be made in writing and set out the grounds. A pre-printed form may be used but is not essential. Parents should be invited to send any documentation they wish to be presented tot he panel and the governors should state which documents they will be presenting, for example, the original application form and the priest’s reference form.
D19 The panel must allow the appellant to appear, to make further oral representations and to be accompanied by a friend or represented.
D20 There is no prescribed time within which the appeal must be heard, but the first letter should give an approximate date. There is merit in not hearing appeals too quickly; they should not be heard before those offered places have accepted and the list of those to be admitted is reasonably settled. If there is to be a delay, the reason for it should be explained, particularly if there is the possibility of further offers of places being made.
D21 Parents should receive formal written notice 14 days before the date, on which the appeal will be heard, unless the parents agree a shorter time. Customary holiday periods should be avoided. For secondary schools, the appeals should normally be held towards the end of the spring term before the date of admission. Primary school appeals are normally heard a little later, in May or early June. Every effort should be made within a local authority area to deal with appeals for all schools at approximately the same time.
D22 Where there are different times of admission to reception classes, depending on the age of the child, the appeal process must proceed for all applicants at the same time.
D23 Admission authorities must notify the Council on Tribunals of the dates set. The address is
The Council on Tribunals,
22, Kingsway,
London WC2 6LE.
Tel 0207 936 7045
One appeal panel should hear all the appeals for a single school. All appeals should be heard before any are determined.
Clerk to the Panel.
D24 Each panel must have the services of a clerk. The clerk is not a member of the panel but has an important part to play in ensuring that the relevant facts are established and that the appeal hearing is fair. Clerks should deal with admissions as part of their normal employment, although not at the school in question. They must have a good understanding of the Code of Practice and other relevant information, such as case law. The key tasks of the clerk are to
Order of Proceedings.
D25 A suggested order of proceedings appears as an annex to this guidance. The panel members should be aware of the order of the proceedings and take an active part in questioning. They should not debate the merits of the case or express any views in front until the evidence has been heard and all the other participants have left the room.
D26 The parents should be made aware of the procedure in advance and understand that they will be questioned. The panel should bear in mind that the proceedings will appear intimidating to most parents and that the parents may become distressed. The panel should be sensitive and courteous at all times.
D27 The presenting officer represents the governing body and explains to the panel why the application was refused. The presentation should include
The headteacher may be in attendance as a witness, but normally only to give evidence as to the prejudice to education that might arise if any additional child were to be admitted. The headteacher should not present evidence specific to any appellant.
Further guidance on the handling of evidence is provided in the Code
D28 The matters to be taken into account by the panel shall include
D29 Where the governors claim that the admission of an additional pupil would prejudice efficient education and the efficient use of resources, the appeal panel shall determine that a place should be offered only if the members are satisfied
The ‘two-stage’ process.
D30 The governing body must be able to satisfy the appeal panel that it was not required to comply with the parents’ preference because either
D31 If the governing body cannot satisfy the panel that t was not required to comply with the parents’ preference because one of the above conditions applied, the panel must uphold the appeal.
D32 Where the governors are able to satisfy the panel on this point, the panel must go on to consider the consequences for the governing body in complying with the parents’ wishes and how serious these would be.
D33 The second, or balancing stage is not required where the governors’ decision was made on the grounds that to admit the child would require qualifying measures to be taken to comply with infant class size restrictions. (See annex 1).
D34 Proceedings are to be held in private except that
D35 In the event of a disagreement between members of the panel, a simple majority shall decide the appeal. Where there is an equality of votes, the chairman shall have a second, casting vote. The decision must be communicated in writing to the appellant, the LEA and the governing body.
D36 The governing body must determine all matters of procedure, including time scales.
Training of Appeal Panel members.
D37 It is important for appeal panel members, clerks and presenting officers to receive training, both before appointment to a panel and afterwards to ensure that the necessary skills are updated. Each LEA is expected to nominate at least one person with responsibility for ensuring that arrangements are made for training.
D38 The Council on Tribunals and the Judicial Studies Board produce materials and offer training courses. During the Autumn Term, 1999, the DfEE will be developing training pilot schemes with the Council and the Board, which will be made available through local education authorities.
Appeals: Some Common Questions.
Q1 What is the relationship between the governing body's over-subscription criteria and the reasons for refusing a place at the school?
The governing body must publish criteria that set out exactly how places will be allocated when there are more applications for places in the relevant year than there are places available. Places are offered up to the published admission limit, according to the criteria. Places are refused, however, on one or more the statutory grounds set out in paragraph 1.10 above. For most schools in the Diocese of Westminster, the grounds will be that the admission of further pupils would prejudice efficient education and the efficient use of resources at the school.
Under the new arrangements in place for admissions in September 1999 and beyond, for admission to Key Stage 1 classes, the appeal panel is under a duty to consider whether the governors applied their own policy fairly in the appellant's case. This is a new requirement, which requires governing bodies to provide additional information to appeal panels. It has, however, always been good practice for governing bodies to tell parents and appeal committees how the places were allocated and how the policy applied in the appellant's case. The Ombudsman has criticised governing bodies for not doing so, even though it has not been a statutory requirement and is still not a requirement for admissions to Key Stage 2 or 3.
Q2 Can the governing body claim prejudice to efficient education and the efficient use of resources simply by stating that it has admitted up to its published admission limit?
No. It does not necessarily follow that because the school has admitted up to its published limit, the admission of an extra pupil would cause prejudice. The governing body has to show that to admit the child in question would cause real difficulties for the school, sufficient to outweigh the parents' wishes. These must be genuine educational reasons related to the consequences of over-crowding.
The Ombudsman has criticised governing bodies for failing to supply sufficient information to enable appeal committees to determine appeals properly.
Q3 Can a representative of the governing body appear before the appeal panel even if the parent chooses not to or fails to turn up at the appointed time?
The Code of Practice requires written statements from the admissions authority. The parent has the right to attend in person to make oral representations. If the parent chooses not to attend, it should therefore be possible to proceed on the written evidence alone. However, the panel has the right to ask questions for clarification and a duty to take into account all available evidence and representations. The panel may, therefore, wish to ask questions of the governors' representative but should be wary of considering new evidence which could have been provided in the written statement and which might have caused the parents to present their case differently. If the parents subsequently learned that significant new information was introduced, there might be grounds for complaint to the Ombudsman.
Q4 Can a parent have a 'second appeal'?
Parents are entitled to appeal against any decision to refuse a place for a pupil at a school. However, unless a court so directs, a governing body is under no obligation to consider the same application more than once in any school year, unless there has been a significant change in circumstances which would warrant consideration being given, for example completion of a building project to add accommodation. If the governing body does consider the re-application and refuses a place, it must offer the right of appeal against that decision.
Annex 1
Statutory Limits on Infant Class Size: Implications for Appeals.
(Extracts from DfEE letter sent to admission appeal committees on 4 February 1999).
Introduction
From September 2001, subject to certain limited exceptions, no infant class may contain more than 30 pupils. Infant classes are classes in which the majority of pupils will reach the age of 5.6 or 7 during the school year.
Children entering reception classes in 1999/2000 will generally still form part of an infant class during the school year 2001/2002 when the statutory class size limit takes effect. To enable admission authorities to make the necessary changes to admissions now to comply with statutory limits on class sizes, which will apply in 2001/2002 the law has been changed with immediate effect. The new arrangements apply to admission to infant classes only and do not cover admission to junior classes.
In meeting the class size limit, the Government is committed to ensuring that as many parents as possible can send their child to the school of their first choice. It is providing significant additional resources to enable popular schools that achieve high standards of education to be expanded wherever possible. £620 million is available from 1998/1999 to 2001/2002 for extra teachers and accommodation. Local education authorities must demonstrate in their plans how they will enhance parental preference in meeting the class size limit and provide extra places in good and popular schools.
Changes to admission arrangements to comply with statutory class size limits:
The Education Act 1996 has been amended in order to broaden the circumstances in which an admission authority is not obliged to comply with parental preference for their child to attend a particular school.
Before the Act was amended, the duty to comply with parental preference did not apply 'if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources.
Following amendment, prejudice' may arise by reason of any qualifying measures.. Qualifying measures are defined as measures which must be taken to comply with the duty to limit infant class sizes. The definition includes qualifying measures to be taken in the current year as well as qualifying measures which must be taken in future years.
Hence an admission authority could now refuse to admit a child to a school if it alleged that in order to do so and to meet statutory limits on infant class sizes it would be necessary to take "qualifying measures’ for instance by employing an additional teacher or by building an extra classroom either in 1999 or in a subsequent year.
Restrictions on scope of admission appeals as a result of statutory infant class size limits:
The Education Act, 1996 has also been amended to limit the circumstances in which an appeal panel can uphold an appeal for the admission of a child to a school. The limitation applies where the admission authority has refused admission on the grounds that admission would cause prejudice as a result of qualifying measures which would need to be taken to comply with the duty to limit infant class sizes This category of appeal can only now be upheld if an appeal panel is satisfied:
Appeal panels normally carry out a two stage process in reaching decisions. First, the panel decides whether the admission authority has made out its case that there will be prejudice to efficient education if further children are admitted to the school. Second, if the panel agrees that prejudice would be caused by the admission of further children, it must balance the prejudice claimed by the admissions authority against parental preference.
In appeals where the admission authority alleges that admission would cause prejudice as a result of qualifying measures required to comply with class size legislation, the grounds on which a panel can uphold an appeal will be much narrower. For such appeals there will no longer be a 2 stage balancing process. Once the admission authority has decided that admission will cause prejudice as a result of the qualifying measures, which are required, the panel cannot intervene if it merely disagrees that prejudice by reason of qualifying measures' will occur. Furthermore the panel is not permitted to balance the prejudice alleged by the admissions authority against the points raised by a parent in favour of admission of a child to the school. A panel will only be able to intervene either if the admission authority's decision was one which no reasonable authority could have made, or on the grounds that the child would have been offered a place if the school's admission arrangements had been properly implemented.
In relation to the second ground, it is not enough that there has been a mistake in implementing the school's admission arrangements. To uphold an appeal the panel must also be satisfied that, had the arrangements been carried out properly, the child would have been admitted to the school.
Admission numbers:
In a normal year of entry, 'prejudice' cannot arise if the number of pupils in the relevant age group does not exceed the relevant standard number or the admissions number if greater. However admission authorities are required to review standard numbers/ approved admission numbers in view of the new statutory limits on infant class sizes and to apply to vary standard numbers if necessary. Appeal panels are therefore likely to see lower standard/approved admissions numbers for infant classes than in the past.
Annex 2.
Model Letters.
(i) Unsuccessful application.
Dear [parent],
[Name of pupil]
Thank you for applying for a place for [name] at [name] Roman Catholic School.
Once again, this year, the school was very heavily over-subscribed with [qq] applications for the [qq] places available
I am very sorry to have to advise you that your application was not successful. [This paragraph must give reasons related to the oversubscription criteria, for example; The governing body placed all applications received into one of 5 categories. All applicants in categories one and two were admitted. Your application was placed in category three. There were 12 applications in this category for three remaining places. One of the applicants has an older brother who will still be in the school in September. The remaining 11 applicants were ranked according to proximity to the school and places have been offered to the two who live nearest.]
A waiting list has been established in strict criteria order. If places become available, they will be offered to the next applicants on the list. There is no guarantee, however, that any vacancies will occur.
You have the right to appeal against this decision. If you wish to do so, please write to [name] by [date] taking care to include your grounds for making the appeal. An independent appeal panel whose decision will be binding on the governing body and parents will hear the appeal.
The appeals may not be heard until [month]. In the meantime, you are advised to seek an alternative place for [name]. You are strongly advised to contact the admissions section at the local education authority (TEL also name of contact, if possible) for advice regarding vacancies at alternative schools. Accepting a place at another school will have no bearing on the outcome of your appeal for a place at this school.
The governors fully recognise the acute disappointment this may cause you. Indeed you may feel rejected and hurt. The governors, too, find this a very difficult situation. We would like to take this opportunity of telling you that your parish [name] makes provision for the formal education in the Catholic faith of its children not able to attend Catholic schools. May we encourage you to make contact with [name] so that you can learn about all that is available to help you in the task of sharing your faith with [name] during the next few years.
Yours sincerely
Clerk to the Governing Body.
(ii) Appeal upheld: Prejudice not proved.
Dear [name],
[Name of Child]
I am pleased to inform you that your appeal against the decision of the governing body of [name] Roman Catholic School to refuse your application for a place at the school has been upheld.
The Independent Appeal panel considered all the evidence presented and rejected the governors' case that to admit your child to the school would prejudice efficient education and the efficient use of resources.
Please contact the school to arrange for admission.
Yours sincerely,
Clerk to the Appeal Panel.
(iii) Appeal upheld; prejudice proved.
Dear [name],
[Name of Child]
I am pleased to inform you that your appeal against the decision of the governing body of [name] Roman Catholic School to refuse your application for a place at the school has been upheld.
The Independent Appeal Panel first considered the case put forward by the governors that to admit your child to the school would prejudice efficient education and the efficient use of resources.
After careful consideration, the panel accepted that the admission of a further child to the school would prejudice efficient education and the efficient use of resources because of the consequential increase in class size.
However, the panel went on to consider all your reasons for appeal as well as the published admissions arrangements for the school. In summary, your case was;
[key points]
On balance, the panel concluded that your reasons outweighed the governors' case and agreed that your appeal should be upheld.
Please contact the school to discuss the arrangements for admission.
Yours sincerely,
Clerk to the appeal panel.
(iv) Appeal unsuccessful. Prejudice proved.
Dear [name],
School Admission Appeal.
I am sorry to inform you that your appeal against the decision of the governing body of [name] Roman Catholic School to refuse your application for a place at the school has not been upheld.
The Independent Appeal Panel carefully considered all the evidence that was presented by the governors and by you. The panel accepted, however, that the school was full in the relevant year group and that to admit your child to the school would prejudice efficient education and the efficient use of resources.
The panel went on to consider all the reasons for your appeal, to see if they outweighed the governors' case. In summary, your reasons were
[Key points]
The panel concluded that, in your case, these reasons were not sufficient to outweigh the school governors' case. In consequence, your appeal was not upheld.
The panel does appreciate that you will be disappointed by the outcome of your appeal. You are urged to let the school know if you wish your child's name to be placed on a waiting list [continuing interest list] and to contact [name] in the Education Department [Tel] who holds up to date information on the availability of places in alternative schools.
Yours sincerely,
Clerk to the Appeal Panel
(v)
Appeal unsuccessful. Key Stage 1.
Dear [name],
School Admission Appeal.
I am sorry to inform you that following the recent hearing, your appeal against the decision of the governing body of [name] Roman Catholic School to refuse your application for a place at the school has not been upheld.
The Independent Appeal Panel accepted the school governors' case that to admit another child would have an adverse impact on the provision of efficient education and the efficient use of resources at the school. To meet the statutory limit of 30 pupils per class in infant classes, would require 'qualifying measures' to be taken. These measures would include, for instance, the employment of an additional teacher or the building of an additional classroom immediately or in the near future. The panel accepted that this would incur unreasonable additional expenditure, which would prejudice efficient education and the efficient use of resources at the school.
The Appeal Panel then considered whether there were grounds for upholding your appeal which, in law, could only be agreed if they were satisfied:
The decision to refuse admission was not one which a reasonable admission authority would have made in the circumstances of your case; or
That your child would have been offered a place if the school's admission arrangements had been properly implemented.
The committee concluded that the above grounds did not apply because:
[Key points]
The panel does appreciate that you will be disappointed by the outcome of your appeal. You are urged to let the school know if you wish your child's name to be placed on a waiting list [continuing interest list] and to contact [name] in the Education Department [Tel] who holds up to date information on the availability of places in alternative schools.
Yours sincerely,
Clerk to the Appeal Panel
Annex 3.
Admission to Roman Catholic Maintained Schools in the Diocese of Westminster.
Notes of Guidance/Reference Form for Parents & Priests.
Notes of Guidance.
The sole responsibility for the admission of pupils to Roman Catholic maintained schools rests with the governing body of each school. The governors publish an admissions policy each year, which is included in the school prospectus. Where there are more applications than places available, the policy must be state how the places are to be allocated. Parents are advised to study the admissions policy carefully. It will almost certainly vary from school to school.
The bishop expects all Roman Catholic maintained schools to give first priority to Roman Catholic applicants. The schools must conduct themselves and provide religious education in accordance with the rites, practices and doctrines of the Roman Catholic Church. Religious education and all liturgies and acts of worship are specifically Roman Catholic in character. Some schools restrict the number of non-Catholic admissions even where the school is not full, in order to preserve its Catholic character.
All parents requesting a place in a Roman Catholic school are expected to recognise and accept the Catholic aims and identity of the school. Some schools require parents to sign a document confirming this. Signing such a document, however, would not guarantee a place in the school.
Where the school is over-subscribed, even with Catholic applicants, it will usually give priority to Roman Catholics who practise their faith. Most schools will require evidence of Catholic practice. The evidence that schools are likely to require is the priest's reference supplied with these notes (part B). Please note, however, that a supportive reference from a priest does not guarantee a place in the school.
Where a school is over-subscribed with Catholic applicants, all of whom have provided evidence of Catholic practice, the governing body will apply other criteria such as proximity to the school, or whether there is an older sister or brother attending the school at the same time. These factors are likely to be crucial in deciding how places are to be allocated. These points will be explained in detail in the school prospectus.
PART A. YOUR SELF-ASSESSMENT.
This part of the form requires you to consider your responsibilities. It will be used by the priest when he completes Part B. Part B of the form will be returned to you for you to include with your application to the school. You may copy it if you are making application to more than one Catholic school. Part A is confidential to you and the priest and will not be supplied to the school
Your Name(s)
Address
Telephone
Parish
Name of child
Are you and/or your spouse Baptised Roman Catholic(s)?
Which church do you normally attend?
How often do you attend Mass?
If you do not attend regularly, you may wish to give reasons below.
Reception of the Sacraments.
Please indicate, for your child, the date and place of reception of the Sacraments of:
Baptism,
First Holy Communion,
Sacrament of Reconciliation (First Confession)
If you or your child contribute to parish activities, you may wish to indicate below:
Why do you wish your child to attend a Catholic school?
Your signature ___________________________ Date________________
Your address:
___________________________
___________________________
___________________________ Post Code___________
PART B. PRIEST'S REFERENCE.
Please give this form to a priest who can support your application for a place at a Catholic school. Part B will be completed by the priest and returned to you. He may retain Part A for reference or return it to you but it will not be supplied to the school.
Name of Child_________________________________________
Name of Parent(s)______________________________________
Home Address (The normal family home*)
Post code Telephone
*This is where the child normally lives. The address of another relative or a temporary address is not acceptable. Any attempt to mislead the school may result in the withdrawal of an offer of a place, particularly where proximity to the school forms part of the governing body's policy for admissions.
1 The parents are known to me Yes/No
2 The child is known to me Yes/No
3 The child is a member of a practising Roman Catholic family Yes/No
4 I support this application Yes/No
If the answer to Q3 is no, and to Q4 is yes, please give your reasons:
Priest's signature____________________________ Date_______________
Address
Parish stamp.
Annex 4.
A Summary of Relevant Case Law
Much of the advice contained within the Codes of Practice, together with guidance from the Council on Tribunals, LEAs and the Diocese Education Service is based on judgements handed down by the Courts. These judgements carry the full force of law and many have applications wider than the specific case under review. The following is a brief summary of the most significant cases relating to admissions.
R. v South Glamorgan Appeal Committee, ex parte Evens, 10 May, 1984.
This was a judicial review of the decision of an independent appeal committee, which turned down an appeal against the decision of South Glamorgan LEA to admit a child to the school of her parents' choice.
Whilst the decision was in respect of a County school, the principles apply equally to all independent appeal committees whether they are established by a LEA or by a governing body.
The court held that the Committee had misdirected itself by failing to consider the appeal in two stages:
"The LEA has decided to reject the parental choice on the grounds that one of the matters set out in section 6(3) applies. [I.e. section 6(1), prejudice to efficient education and the efficient use of resources] If an appeal committee were not satisfied that there had been prejudice, they would be bound to allow the appeal because of the duty under section 6(2). It follows inevitably that the first task of an appeal committee is to decide whether the case of prejudice is made out.
That is not an end of the matter because the committee must have regard to parental preference in the arrangements for the admission of pupils. (The appeal committee) has to embark, if it decides there is prejudice, on the balancing exercise of whether the degree of prejudice is sufficient to outweigh the parental considerations."
R. v Commissioner for Local Administration, ex parte L.B.Croydon. 1989.
This case re-enforced the views set out in the South Glamorgan case, but also considered the question of "onus". It made it clear that the onus was upon the LEA or governing body at stage one to demonstrate that the admission of the child would result in prejudice to efficient education and the efficient use of resources and that this case should be made first at the hearing. However,".....the decision in practice will not depend on the onus of proof. The committee has to come to its decision on the basis of all the material which it has available and by applying its expertise to this material it should decide where the balance lies."
Choudrey v Governors of Bishop Challoner Roman Catholic Comprehensive School. 1992.
This case raised the question of whether the governors of a Catholic School are entitled to give priority to Catholic children. At the second appeal stage, the House of Lords held that the governing body had done nothing illegal in adopting and publishing a policy which gave priority to Catholic children amongst a set of arrangements which indicated how places would be allocated when the school was over subscribed.
The Lords noted that the wording of section 6(3) of the Education Act 1980 [superseded] meant that the sub-section dis-applied the statutory duty to comply with parental preference if the case fell within section 6(3)(a), (b) or (c). Since the school was over-subscribed, the case fell into section 6(3)(a). The school was so over-subscribed that to admit all the applicants would have prejudiced efficient education and the efficient use of resources. There was therefore no duty to comply with all parental preferences.
"It is clear that Parliament has not sought to remove the responsibility for formulating admissions policies from governing bodies. No doubt the governors' policy must be reasonable but apart from the express statutory provisions in section 6 0f the 1980 Act, there is no requirement as to the criteria to be adopted."
R v. East Sussex County Council ex parte "D". 1991.
Amongst other issues, this case established that an appeal committee was within its rights to determine that "prejudice to efficient education and efficient use of resources" would not occur at the admission limit specified by the authority. In this case, the committee determined that six more pupils could be accommodated at the school and then considered which of the 18 appeals under consideration would be allowed.
A second issue considered confirmed that the authority had acted reasonably in determining the ‘catchment area’ after the applications had been received, even though this meant that parents could not predict with any confidence what their chance of success would be.
Associated Provincial Picture Houses v Wednesbury Corporation. 1948.
The Challoner case briefly outlined above and other cases have re-enforced the point that admissions authorities may adopt any policy they see fit provided that it is reasonable. The legal definition of "reasonable" is normally taken from the Wednesbury case. Essentially, there are three features
• Have factors been neglected which should have been taken into account
• Have factors been taken into account which have no bearing
• Is the conclusion so unreasonable that it would not have been reached by any other reasonable authority
In this context, governing bodies are urged not to disregard advice, particularly the advice provided in DfEE circulars, this document and by other authoritative sources. Any deliberate failure to do so could lead to a charge that the governing body was acting, or was intending to act in an unreasonable way or beyond the powers that Parliament intended to bestow.
R. v. Rotherham MBC ex parte Clark (1998)
Rotherham LEA operated a system whereby places were allocated in a ‘catchment area’ school. There was no need for parents to make any application. Parents were able to express a preference for a different school, but could find that the school was already full with pupils for whom it was the allotted ‘catchment area’ school. The LEA’s justification was that many parents were indifferent or failed to respond to the request to express a preference, with consequential difficulties in complying with the duty to secure a school place.
This procedure was held to be unlawful. LEAs must give all parents the opportunity to express a preference and give reasons for the preference. The LEA is under a duty to comply with all preferences expressed before allocating places to those who express no preference, even though this might mean that some applicants might not be offered a place in their ‘catchment area’ school.
Annex 5.
The Commissioner for Local Administration: Extracts from recent reports.
The Annual Report and Digest of Cases published by the Local Government Ombudsman provides a synopsis of investigations into complaints which is often helpful in highlighting aspects of administrative procedures which may result in a finding of maladministration. Since parents are increasingly aware that this avenue of complaint is open to them (at no cost), a study of the following cases may be instructive. All were investigations into the procedures followed by independent appeals panels established by the governing bodies of voluntary aided schools.
The importance of observing the Code of Practice.
Mr and Mrs B complained that there was maladministration in the way in which the education appeal committee set up by the governing body of a grant maintained school dealt with their appeal against the governors' decision to refuse their son admission to the school. The appeal was dismissed by the appeal committee.
The Ombudsman said 'it is reasonable to expect the members of appeal committees to be familiar with the content [of the Code of Practice] and to act in accordance with it, unless there are good reasons why they should not. It is clear from our investigation into complaints that some appeal committees find great difficulty in understanding and operating the two-stage process. Whatever those difficulties, the education appeal committee was obliged scrupulously to follow the two stage process in considering Mr and Mrs B's appeal. It is clear to me that the committee acted in good faith and without bias. But I am not satisfied that all members of the committee fully understood the two stage process and complied with the guidance in the Code.'
The following specific points emerged from this investigation;
Mr and Mrs B were left with the impression that that the committee saw its function as being merely to consider whether the governors had applied their published policy correctly. In fact the committee's function went far wider. The matters that the appeal committee had to take into account included any representations made to it by any of the relevant parties.
The committee had taken account of the position of children on the waiting list. This is not a relevant factor to establish whether the school is full and not a material factor to the appeal.
The Ombudsman concluded 'these procedural faults amount to maladministration. As a result, I am not satisfied that the appeal was properly heard. It does not follow that if there had been no fault, the appeal would have been upheld. The committee might still have concluded that the case was not strong enough to outweigh he school's grounds for refusing admissions. Nevertheless, the parents have suffered an injustice as a result of maladministration'.
The importance of the Code of Practice. The role of committee members.
Five sets of parents complained about the appeal committee set up by the governing body of a voluntary aided school. There were eight specific matters of complaint. Six were upheld, but there was no evidence of injustice to the parents, since the clerk had been able to direct the committee to a proper consideration of the material factors.
The Ombudsman recommended that the committee members should, in future,
All places must be filled before appeals are heard.
The parents of four children refused places in a voluntary aided primary school complained that the appeal committee had not followed the law or the published guidance.
From a study of the written evidence submitted to him, the Ombudsman concluded that
The governing body agreed to repeat the appeal process with a fresh committee.
Where proximity is a critical factor, correct information should be used and supplied to parents.
The parents complained that they had not been told which route had been used to measure proximity to the school. When the information was eventually supplied, the parents were able to identify a shorted alternative.
The Ombudsman said that it was of paramount importance to select appropriate routes, measure them correctly and clearly identify to the parents which route had been used. In this case, an out of date map had been used which did not include a route commonly used by children to get to the school. This amounted to maladministration and injustice. The Ombudsman recommended a payment of £1,000 to the parents.
The importance of training.
Mr and Mrs C complained that a committee established by the governing body of a voluntary aided school did not deal properly with their appeal. None of the three members of the committee had received any training. All three had copies of the Code of Practice but two asserted their view that the Code did not apply to voluntary aided schools. All three said that they were unaware of the two-stage process and were not aware of the need for a clerk. The only information available was a letter from the governors stating 'we had 458 applications for 120 places' and a letter listing the names of the 120 pupils offered places.
The Ombudsman concluded that the parents had the right to expect that the hearing would be properly conducted in accordance with the law and the Code of Practice. In this case, it manifestly was not.
Failure to provide a clerk.
The role of clerk cannot be over-stated. The presence of a properly trained and experienced clerk should ensure that the procedures followed by an appeal committee accord with the advice contained in the Code of Practice.
The Ombudsman did not accept that a suitable clerk could not be found. Nor did she accept that a clerk would inhibit the informal nature of the proceedings.
Failure to consider the first stage process.
The governors are required to comply with a parent's preference unless one of the specified exceptions can be applied. The onus to this rests with the governors. No representative of the governors and no evidence was submitted.
Appeal committees need to ensure that appeals are determined on the basis of the information properly provided to the committee in the written and oral submissions for each appeal. Both parties to the appeal should know what that information is and have an opportunity to contest it.
No member of the appeal committee was aware of the failure to establish that compliance with the parents' preference would prejudice efficient education and the efficient use of resources at the school.
The failure of the committee to understand its role and act in accordance with the law and the Code of Practice was maladministration.
Notwithstanding the failures, the Ombudsman was not satisfied that the appeal would have succeeded had the appeal been properly conducted. Although no injustice had flowed from the maladministration, the Ombudsman expressed the hope that appeal committees would be properly trained in future and have the services of a trained clerk available to them.
Annex 6
Suggested Admission Policy
HEAVENLY CHOIR ROMAN CATHOLIC SCHOOL ADMISSION POLICY
This policy refers to admissions to [relevant year/s] at Heavenly Choir Roman Catholic School.
Heavenly Choir is a Catholic school founded by the Church to provide education for Catholic children. Whenever there are more applications than places available, priority will always be given to Roman Catholic applicants in accordance with the criteria listed below. All applicants are required to sign a copy of a statement to indicate positive support for the aims and ethos of the school and Roman Catholic applicants wishing to claim priority will be required to provide a reference from a Roman Catholic priest.
The governing body has sole responsibility for admissions to this school and intends to admit [xx] pupils to year [relevant year] in the school year which begins in September, 20 [xx].
[If applicable] Applicants are requested to note that the governing body has an agreement with [yy] LEA whereby it may restrict the number of non-Catholic applicants who are offered places to a maximum of 10% of the year group in order to preserve the Catholic character of the school.
Where there are more applications for places than the total of [xx] places available; places will be offered according to the following order of priority:
The attendance of a brother or sister at the school at the time of enrolment will increase the priority of an application within each category.
The governing body may increase the priority of an application within a category where evidence is provided at the time of application of a special educational or other need of the child, which can be most appropriately met at this school.
Where the offer of places to all the applicants in any of the categories listed above would lead to oversubscription, places up to the standard number will be offered to those living nearest the school as measured on a map.
Applications must be submitted by [closing date] to [??]. Parents will be advised of the outcome of their applications no later than [date]. Unsuccessful applicants will be given reasons related to the oversubscription criteria listed above and advised of their right of appeal to an independent appeal committee.
Applicants who submit an application on the form supplied to all parents are requested to take note that they will also be required to complete the governors’ application form, since additional information is required in connection with admission to this school.
Annex 7.
A Suggested Order of Proceedings for Appeal Hearings.
End.