Local Government - March 2009
Education
Schools Admissions Code
The new Admissions Code of Practice came into force on 10 February
2009 and applies with immediate effect. Ministers first
announced plans to revise the Code following findings by the Chief
Schools Adjudicator, Sir Philip Hunter, that half of schools
breached it. The Code reflects the changes to the law made by the
Education and Skills Act 2008 which set out to strengthen the
statutory admissions framework to ensure that all schools adopt
fair and lawful admissions practices. This article runs
through Local Authorities’ legal obligations under the new Code.
The Code covers all maintained schools
including entry to sixth forms. The Code applies to: (a)
Admissions Authorities (this is the local authority for any
community and voluntary controlled schools, unless the function has
been delegated to the governing body, and the governing body for
foundation schools, voluntary aided schools and Academies) (b)
Governing Bodies (where not the Admissions Authority) (c) Local
Authorities (where not the Admissions Authority); (d) Admission
Forums (e) School Adjudicators and (f) Admission Appeal Panels.
Local Authorities are required to monitor
compliance with the Admissions Code and to report annually (by 30
June) to the Schools Adjudicator on the fairness and legality of
admissions arrangements for all schools in their area, including
Academies. The School Adjudicator is responsible for enforcing the
mandatory requirements of the Code and has the power to investigate
the admissions arrangements of any school and to specify
modifications about a maintained school's admissions arrangements
or make recommendations to the Secretary of State in respect of
Academies. The Adjudicator must consider any objections raised
about admission arrangements and report annually to the Secretary
of State on how fair access is being achieved locally.
The Law: Equality and Fair Access in
School Admissions Arrangements
The Government wants
to create a system where all parents feel they have the same
opportunities to apply for the schools that they want for their
child. Chapter one of the Code sets out a number of duties
for Local Authorities (LAs) in this regard, to include the
following:-
- LAs are required to provide advice and
assistance to all parents of children of all ages in their area
when expressing a preference for a school. The LA must provide an
independent service to support families and appendix 5 to the Code
advises LAs about Independent Choice Advice.
- LAs must exercise their functions with a view
to securing diversity in the provision of school places and
increasing opportunities for parental choice when planning the
provision of school places. (s 14(3A) EA 1996).
- Admission arrangements should support
sustainable and healthy travel particularly in relation to
secondary schools.
- LAs should respond to parental
representations about the provision of schools in their area and
set out any action which the LA proposes to take or provide reasons
where the LA believes no action is necessary.
- The LA must receive representations by 31
January from any school which wants to go above the set admissions
number for a “relevant age group”. The Code suggests that proposals
to expand successful and popular schools should be approved and
that surplus capacity in neighbouring schools should not prevent
expansions.
- All Admission Authorities (including LAs)
must consult by the 1 March on Admission Arrangements. All
Admission Authorities are now required to consult on Admission
Arrangements for 2010/11 and the consultation period for Admission
Arrangements for 2011/12 and subsequent years must last for a
minimum of eight weeks between November and March. Admission
Authorities must determine their Admission Arrangements by 15
April. The Code sets out the information which must be
included and consulted upon. The Admission Authority must publish a
copy of their proposed Admission Arrangements together with details
of where comments should be sent and by when, on both their website
and by Notice in a local newspaper.
- Where parents are unsuccessful in applying
for a school place they must be given reasons and informed in
writing of their right to an independent appeal against the
decision.
- Admission Authorities for schools with a
sixth form must consult on and determine the arrangements they
propose to use to allocate places in Year 12. Both parents
and children above compulsory school age have the right to make
separate applications and to appeal either jointly or separately.
Sixth form admission criteria must be the same for internal and
external candidates, there must be no interviews and acceptance
must not be dependent on attendance, behaviour records or
expectations of attitude or motivation.
- If a parent fails to respond to the offer of
a place the Admission Authority must remind the parent of a need to
respond within a further seven days before a place may be
withdrawn.
- Admission Authorities and Governing Bodies
must ensure that their Admission Arrangements and other school
policies are fair and do not unfairly disadvantage either directly,
or indirectly, a child from a particular social or racial group or
a child with a disability or special educational needs. Admission
Authorities must not use interviews as part of the admissions
process and fair Admission Arrangements must not be under-mind by
other policies such as a requirement for expensive school uniform,
sportswear or expensive school visits or other activities.
Setting fair over-subscription
criteria
- All maintained schools, including faith
schools but not grammar schools, that have enough places available
must offer a place to every child who has applied without condition
or use of criteria.
- A school continues to have a duty to admit a
child with a Statement of Special Educational Needs that names the
school (s324 EA 1996).
- All Admission Authorities have a duty to give
the highest priority in their over-subscription criteria to
children who are in care.
- Parents must be easily able to understand the
Admission Arrangements and to assess whether they have a reasonable
likelihood of gaining a place at a particular school. Point
systems can only be used if they are transparent and can be easily
understood.
- The Code sets out subscription criteria that
Admission Authorities must not use.
Co-ordination and Fair Access
Protocols
Chapter three sets out the requirements for
Local Authorities to co-ordinate school applications throughout the
year. It also sets out requirements for Directions and
Fair Access protocols. In brief:-
- For admissions in 2011/12 and onwards
LAs must formulate a single scheme for co-ordinating all
applications to Maintained Schools and Academies from parents in
their area, whenever received and for whichever age group.
- Such schemes must:- have a common application
form allowing at least three preferences; provide for
information sharing with other LAs; ensure, so far as it is
reasonable practical, that the LA sends out not more than one offer
to all parents seeking places at its’ schools. Schemes must
be formulated by the 1 January in the determination year and the LA
must consult the Admissions Forum every year and all schools
affected by the Scheme and other LAs every three years as a
minimum.
- The Code sets out the fair access
protocols. The LA has a duty to monitor the use of the fair
access protocols and they have to form part of the report to be
provided to the School Adjudicator. The protocols are
designed to help ensure that access to education is secured quickly
for children who have no school place and that all schools in an
area admit their fair share of children with challenging behaviour,
including children excluded from other schools.
Ensuring a Fair Admission
System
Local Authorities (along with Admission
Forums and the School Adjudicator) have a responsibility to ensure
that school admission arrangements comply with Admission Law and
the requirements of the Code (s13A EA 1996 (as substituted by EIA
2006). In doing so Local Authorities must comply with the
following obligations as set out within chapter four of the
Code:-
- LAs must report annually to the School
Adjudicator. (S88P of the SSFA 1998 and the Local Authority Reports
Regulations). LAs must include arrangements of all Maintained
Schools, Academies, City Technology Colleges and City Technology
Colleges of the Arts and must report on the effectiveness of
coordination of admissions for pupils to schools in their area, and
for pupils in their area to other schools. The Regulations set out
the information to be included in the report. The Reports from each
LA form the basis of the Annual Report that the School Adjudicator
is required to make to the Secretary of State
- In order to complete their report a LA
can request information from any of the following in their area:-
any Admissions Authorities; Admission Forum; Members and Clerk to
Appeals Panels; Proprietors of Academies, City Technology Colleges
and City Technology Colleges of the Arts; and any other Local
Authority in England. (Section 88Q SSFA 1998 and the Local
Authority Reports Regulations).
- Where a LA becomes aware of an admission
arrangement which contravenes Admissions Law, does not comply with
the Code or fails to follow its guidelines without justification,
the LA must immediately refer to the School Adjudicator. The School
Adjudicator may then amend unlawful admission arrangements or
replace them entirely or in respect of Academies he may advise the
Secretary of State on the necessary changes. The Adjudicator has a
new duty to consider the legality of admission arrangements
referred to him via the LA in his report to the Secretary of State
(S151 ESA 2008).
- LAs have a duty to ensure fair access to
educational opportunity and have a key role in ensuring that school
admission arrangements are lawful and comply with the mandatory
provisions of the Admission Code. They must ensure that
admission arrangements for schools in their area for which they are
Admission Authority comply with all statutory requirements, are
clear, objective and fair.
- LAs are required to publish a Notice in a
local newspaper and on their website as soon as all the admission
arrangements for schools in their area have been determined,
setting out that they are available for inspection at the LA’s
offices. Parents have the right to refer an objection to the
Schools Adjudicator if they consider an admission arrangement to be
unfair, or not to comply with the law or the mandatory requirements
of the Code. Objections should be referred to the Schools
Adjudicator by 31 July in the determination year.
- An Admission Authority can refer a proposal
to vary the admission arrangements to the School Adjudicator when
they consider a variation to be necessary as a result of a
significant change in circumstances. (S88E(1) of the SSFA
1998).
- LAs are required to establish an Admission
Forum. (S85A of the SSFA) The Code sets out the role of the
Admission Forum and its duties and powers and further guidance
material is available. One of the Admission Form’s role is to
advise LAs and Admission Authorities on matters relating to school
admissions.
Appeals
The new “more robust” Appeals Code also came into
force in February. Look out for the article in next month’s
newsletter for a summary of the key changes and implications for
Local Authorities.
Comments
School admissions have hit the headlines this month
after reports that a third of children going through the secondary
transfer process have not been offered their first choice and
thousands of children are expected to miss out on their chosen
primary school with some Local Authorities resorting to temporary
classrooms and “bulge classes” to accommodate pupils. Under
the new Code Local Authorities stand to come under great scrutiny
with regards to both their admissions arrangements. There is also a
risk that the new duty the Code places on Local Authorities to
respond to parental representations about the provision of schools
in their area and to set out any action which the Authority
proposes to take or, where the Authority believes no action is
necessary their reasons behind that opinion, could lead to Judicial
Review challenges on the grounds of unreasonableness or perversity
and responses therefore need to be carefully thought out. If
you have any concerns with regards to the new Code please do not
hesitate to contact our Education team who would be happy to
assist.
Eve Holt
Weightmans LLP