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When is a new school not a new school? Has the new School Admissions Code opened a Pandora's box?

A number of local authorities are planning to take advantage of new government powers to increase pupil numbers in good schools in order to expand the number of academically selective places in grammar schools, it was revealed in the Daily Telegraph this month.

Entirely new grammar schools are banned under current legislation. Section 39 of the Education & Inspections Act 2006 lays down this general restriction on selection by ability. It provides, "(1) No admission arrangements for a community, foundation or voluntary school may make provision for selection by ability unless… (b the school is a grammar school." The opening of new grammar schools is subject to a long-standing general prohibition since a "grammar school" can only exist if was designated as existing as at the school year 1997-1998: Section 104(1) of the School Standards and Framework Act 1998. Thus, if a school has not already been designated as a grammar school it cannot become one. If it is not already one it cannot select pupils by reference to ability... but...

...amendments to the School Admissions Code and the School Admissions (Admission Arrangements and Coordination of Admission Arrangements) (England) Regulations 2012 which came into force on February 1st 2012 allow existing good schools to grow in areas with the greatest demand. This has led some local authorities to believe that their present grammar schools could increase their numbers to the extent of opening a satellite campus in a town currently lacking selective provision without falling foul of the prohibition on new grammar schools even if that campus is a number of miles away or even in a neighboring local authority hitherto without selective schools.

Would this be unlawful? Is it an attempt to circumvent the ban on opening new grammar schools? It is a political hot potato for sure.

As a matter of fact there is little new law, just a new political paradigm. The law relating to the establishment of additional sites for existing schools has been in existence for a number of years and is provided for in the School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007 Schedule 3 Paragraph 7 ("the 2007 Regulations") pursuant to the Education and Inspections Act 2006.

The change to the Admissions Code and the new 2012 Regulations promotes the growth of "good" schools and expressly permits maintained schools and Academies for the first time to increase their Published Admissions Number without consultation, and without objectors having the right to complain to the Schools Adjudicator. This removes a barrier to the expansion of grammar schools but relates to admission numbers alone and does not without more allow increases in capacity or enlargement of premises.

There is, in principle, no legal impediment to a maintained school, or indeed a selective Academy (many grammar schools are now selective Academies) increasing capacity or enlarging to an additional site subject to consultation and in the case of an Academy subject to the Secretary of State’s approval (specific guidance has been issued to Academies by the Secretary of State pursuant to their funding agreements expecting consultation and consent).

The 2007 Regulations govern the establishment, or alteration of schools including the expansion of capacity or addition of new premises in maintained schools. Consultation is required. Paragraph 7 of Schedule 3 of the 2007 Regulations specifically provides for the consultation proposal to describe why an additional site is necessary where that is proposed. Thus the statutory provisions clearly envisage the possibility of an existing maintained school enlarging its capacity and/or expanding its premise to an additional site.

Specifically the 2007 Regulations provide that a consultation process must be undertaken by the Governing Body or Local Authority when there is a proposal to enlarge the premises of a maintained school by a capacity of more than 30 pupils and by 25% or 200 pupils (whichever is less) (Schedule 2, Part 1, section 1(1) of the Regulations). Similarly, the consultation process must be undertaken where a school proposes to transfer to a new site, "except where the main entrance of the school on the proposed new site would be within 2 miles of the main entrance of the school on its current site (unless the school is transferring to a site within the area of another [local authority])" (Schedule 2, Part 1, section 9 of the Regulations).

Can existing maintained grammar schools or selective Academies add an additional site in a different town or indeed different local authority? Consultation is required for sure but is it unlawful in any event?

Regulation 8 of the 2007 Regulations sets out that both the local authority and the schools adjudicator must have regard to guidance issued by the Secretary of State when they take a decision on proposals to enlarge the physical capacity of a school or its upper age limit. The Guidance on "Expanding a Maintained Mainstream School by Enlargement or Adding a Sixth Form" (Updated February 2010) provides amongst other things that : 


4.32 The strong presumption is that proposals to expand successful and popular schools should be approved. In line with the Government’s long standing policy that there should be no increase in selection by academic ability, this presumption does not apply to grammar schools or to proposals for the expansion of selective places at partially selective schools. (emphasis added)

Thus, there is no presumption of approval if the proposal is to enlarge the physical capacity or to expand a popular and successful grammar school. This means that when a consultation process is undertaken and/or the adjudicator has to adjudicate, it is not likely that the expansion of a grammar school will be readily permitted.

However, further than this, a central issue is whether a selective Academy or grammar school seeking to increase numbers and expand its capacity and in doing so establish a new site, would be considered by the adjudicator or court as seeking to circumvent the prohibition on the establishment of new grammar schools and therefore be acting unlawfully.  The answer is likely to be extremely fact sensitive. Is the additional site really no more than an additional new grammar school? It is highly likely to depend upon the prevailing circumstances. A true annex or additional site would surely be no more than a site close to the main school and clearly dealing with overspill from the main school. It would be hard to argue this was an additional school. However, where this additional site was some way from the main school site; where it was providing a complete broad and balanced curriculum required for all pupils via the Key Stage 3 and 4 education; where the infrastructure, facilities and staffing were effectively free-standing; where the admission criteria included selection by ability and proximity to the new site, it is much more likely to be considered as a prohibited form of new grammar school.  This issue may run. Watch this space!