Speak to our friendly staff directly  +44 (0)20 7242 2523

A leading set specialising in commercial, construction, insurance and property law

This document is from our archive and no action should be taken in reliance on it without specific legal advice.

The changing face of school admissions

Introduction

“You shouldn’t have to hire a lawyer to navigate the school system.”  

With those words in May last year the Secretary of State for Education, the Rt Hon. Michael Gove MP, launched a consultation on a draft new School Admissions Code and a new School Admissions Appeal Code. 

Mr Gove had made known his commitment to replace the previous School Admissions Code, describing it as “bureaucratic and unfair.”  Launching the 12-week consultation on the new Codes on 27 May 2011, Mr Gove described his aim that they should simplify the admissions process.  He stated:

“The school system has rationed good schools. Some families can go private or move house. Many families cannot afford to do either. The system must change. Schools should be run by teachers who know the children’s names and they should be more accountable to parents, not politicians. Good schools should be able to grow and we need more of them.

[…]

You shouldn’t have to hire a lawyer to navigate the school system.  We are trying to simplify it and make it fairer. We want to cut the red tape that has stopped good schools expanding. We want to make various specific changes to help servicemen and teachers. Together with our other reforms, these changes will help give all children the chance of world-class schools.”

The consultation received 1,337 responses, 700 of which were from parents.

The revised Codes were placed before Parliament on 1 December 2011 and under the procedure laid down by the School Standards and Framework Act 1998, both Houses of Parliament had a period of 40 days in which to object to their entry into force.  If either had resolved not to approve the new Codes, then the draft revised Codes would have gone no further.

In the event, neither the Commons nor the Lords resolved not to approve the Codes and as a result the new Admissions Code and the new Admission Appeals Code entered into force on 1 February 2012.

The new Admissions Code will regulate school admissions for the first time in respect of the pupil intake for the 2013/14 academic year.  The new Appeals Code will regulate all appeals heard from 1 February 2012 onwards.

Key changes in the new Admissions Code

To anyone used to working with the previous Admissions Code, the biggest difference one cannot help but notice immediately is the difference in size.  The new Code is a much slimmer document, running to just 37 pages in total compared to the previous Code which ran to more than 90.  The changes which the new Code seeks to make are significant and the impact of some of the changes will be far-reaching.

“Should” vs “must”

The Secretary of State has sought to achieve greater transparency and clarity by removing provisions which stipulate what a school “should” or “should not” do.  Instead the revised Code only states what a school “must” and “must not” do. 

In 2010 the then Chief Schools Adjudicator, Dr Ian Craig, warned that any proposal to remove non-binding provisions from the Admissions Code risked, in his words, “throwing the baby out with the bathwater.” 

However in the Department for Education’s departmental response to the consultation on the revised Code, the Department sounded a more optimistic note, stating:

Respondents welcomed the greater transparency, rationalisation and simplification of the draft Codes, particularly the removal of those areas that stated what schools ‘should’ and ‘should not’ do.  Saying that a school ‘should’ follow a process rather than ‘must’ follow a process often led to confusion and misinterpretation.” (page 2 of Departmental response to consultation)

Published Admission Number (‘PAN’)

In the Departmental press release launching the consultation in May 2011, the Department for Education declared its intention that the new Code should:

“…increase the number of good school places available by making it easier for popular schools to take more pupils.”

The new Code sets out to achieve this by removing the need for consultation when a school which acts as its own admission authority wishes to increase its published admission number.

For community and voluntary-controlled schools, the local authority (as the admissions authority) will have to consult at least the governing body of the school concerned before increasing (or maintaining at its existing level) the published admission number.  The governing body can always have recourse to the Schools Adjudicator if they feel that the published admission number is lower than they would like.

In-year applications

The new Code removes the requirement for local authorities to coordinate in-year applications for school places.  From the admissions round 2013/14 onwards, parents will be able to apply directly to the school at which they would like a place for their child.  The new Code sums this up by declaring:

“Any parent can apply for a place for their child at any time to any school…” (paragraph 2.21)

Local authorities will have to provide details in their composite prospectus of how in-year applications can be made an d how they will be dealt with.  They must, on request, provide parents with details of schools which still have vacancies and must provide an application form for schools for which the LA is not the admissions authority.

When an own admission authority school receives an in-year application, it must inform the local authority of the application and of the outcome.  The local authority must also inform the parents of their right to appeal against the refusal of a place.

Random allocation

There is a distinct change in the way the new Code will deal with random allocation.  The change in approach is clear immediately from the language used in the previous and the revised Codes.  The previous Code began its section on random allocation by declaring:

“Random allocation of school places can be good practice…” (paragraph 2.33)

The revised Code, in contrast, begins its section on random allocation by stating:

“Local authorities must not use random allocation as the principal oversubscription criterion for allocating places at all the schools in the area for which they are the admission authority.” (paragraph 1.34)

The revised Code maintains the existing requirement that random allocation be transparent, with it being clearly set out for parents how the random allocation system will operate.  Similarly the revised Code maintains the requirement that a fresh round of random allocation be used each time a child from a waiting list is to be offered a place.

Infant class size limit

The revised Code has increased the pool of children who are entitled to be admitted to an infant class size which is already at the statutory limit of 30 children.  It now includes:

“children of UK service personnel admitted outside the normal admission round;” (paragraph 2.15(f))

and

“children whose twin or sibling from a multiple birth is admitted otherwise than as an excepted pupil;” (paragraph 2.15(g))

The Departmental response to the consultation notes that this proposal proved particularly popular with those who responded to the consultation: 83% of respondents were in favour (page 3 of Departmental response to the consultation).

Consultation

The revised Code reduces the mandatory consultation on admissions procedures where no change is proposed from every 3 years to every 7 years, stipulating at paragraph 1.42:

“Where the admission arrangements have not changed from the previous year there is no requirement to consult, subject to the requirement that admission authorities must consult on their admission arrangements at least once every 7 years, even if there have been no changes during that period.”

When launching the consultation, the Department for Education expressed its hope that this measure would “reduce bureaucracy” (press release of 27 May 2011 launching consultation).

Children of staff

In what the Department for Education called, when launching its consultation, a step towards “making it easier for schools to recruit teachers and other staff”, the revised Code allows admissions authorities to give priority in their oversubscription criteria to the children of staff at the school in question.  This rule will, however, only apply in two circumstances:

a) where the member of staff has been employed at the school for two or more years at the time at which the application for admission to the school is made, and/or

b) the member of staff is recruited to fill a vacant post for which there is a demonstrable skill shortage” (paragraph 1.39)

This proposal proved more controversial with the respondents to the consultation, with 45% disagreeing with the proposal and 43% agreeing.  The Departmental response to the consultation noted that:

“A number of concerns were raised about possible abuses, either by schools or parents, and the possibility that far fewer parents would be able to take advantage of this permission if the local definition was too narrow”

Objections

Under the revised Code, anybody will be entitled to raise an objection to admissions procedures at any school.  At paragraph 3.3 it states:

“Any person or body who considers that any maintained school or Academy’s arrangements are unlawful, or not in compliance with the Code or relevant law relating to admissions, can make an objection to the Schools Adjudicator…”

This is wider than the previous Code and has been promoted by the Government as a way of increasing local accountability for school admissions.

The proposal proved popular in the consultation on the revised Code, with 73% of those who responded saying they supported the proposal to increase the scope for objections to be referred to the Schools Adjudicator.

Deadline for objections

Whilst widening the pool of people who may raise an objection before the Schools Adjudicator, the revised Code shortens the time in which objections can be raised.  The previous Code required objections to be made by 31 July (although there was discretion for late objections to be considered).  The revised Code, on the other hand, requires objections to be made by 30 June (paragraph 1.50).

This proposal also proved popular in the consultation, with 76% of those who responded supporting the move.

Conclusion

Speaking in November 2010, when some indications were first beginning to appear of the changes which the new Government wished to make to the School Admissions Code, then Chief Schools Adjudicator Dr Ian Craig sounded a cautious note in response to the Coalition’s zeal to trim down the Code.  He warned that the Code should be more accessible but not at the expense of valuable and necessary provisions.   He warned, “We need to be very careful that while we're making [the Code] more accessible we don't simplify it to such an extent where it becomes a useless document.”

The new Admissions Code has been in force for only a matter of days now and will regulate admissions for the first time for the academic year 2013/14.  As that and future admissions rounds unfold, they will be watched closely by all those keen to see what the final verdict on the new Admissions Code proves to be: a victory for parent power and a Code accessible to all, or a risky attempt to cut red tape which sees much-needed safeguards thrown away.  Only time will tell.

Article by Alexander Campbell