What does a compliant and well planned consultation look like?

Richard Freeth, Partner

Browne Jacobson LLP

key documents

• Key documents• Key terms• Process• Contents• Areas of concern

key documents

• School Admissions Code 2014• School Admissions Appeals Code 2012• School Adjudicator decisions and annual report• Case law

key terms

Admission Authority – the body responsible for setting and applying a School’s admission arrangements

Admission Number – the number of school places that the admission authority must offer in each relevant age group

Admission Arrangements – the overall procedure, practices and oversubscription criteria used in deciding the allocation of school places including any device or means used to determine whether a school place is to be offered

key terms

Admission arrangements are any mechanism or process used to allocate places at a school. They will include:

•admission numbers for each ‘relevant age group’ (normal admission point);•commitment to admit any children with statements of special educational needs or EHCPs which name the school;•oversubscription criteria which prioritise looked-after children and children who were formerly looked-after and include a final tie-break (usually ‘distance from school’);•any selection test (if a school is selective);•supplementary application form;•any catchment area or other oversubscription criteria; and•waiting list arrangements.

Office of the School Adjudicator Report 2014

“We have found admission authorities that are not meeting the requirements for consultation, determination and publication of their arrangements. As a consequence parents and others are unable to consider the arrangements and, if necessary, object in a timely manner…and often there are late objections when eventually the arrangements are seen”.

areas of concern

• Code is concise and does not cover every eventuality. Interpretation must be in context of paragraph 14 (general requirements)

• Compliance with basics of consultation, determination and publication (1.42 – 1.49)

• Sixth Form admission arrangements• Requesting prohibited information• Arrangements are unduly complex• Priority for nursery into Reception

procedure

• Set out in School Admissions Code 2014 (1.42 – 1.51)• If making no changes, just need to determine admission

arrangements• If increasing PAN (or keeping PAN at the same level), no need to

consult but must publish intention on website and notify the local authority. No right to object to the Schools Adjudicator. Must determine admission arrangements

• If decreasing PAN, must consult in accordance with School Admissions Code and may be subject to objections. Must determine admission arrangements

• If making other changes to the admission arrangements must consult and determine

changes to admission arrangements for 2017 entry

Consultation

•minimum of 6 weeks between 1 October and 31 January of the year before those arrangements will apply•consult with parents of children aged 2-18, other persons with an interest, other admission authorities, the LA and faith bodies (if you are a faith school)•LA (as admission authority) must consult neighbouring LAs•place a copy of the consultation and full proposed arrangements on the website together with details of who to send comments to•send full copy to others on request

consultation

• Comments by School Adjudicator in 2013 and 2014 reports• Schools must ensure requirements are satisfied even if LA

takes lead role in consultation• Not sufficient just to post on website or another website or

send letter home to parents• Must communicate with parents of children aged 2-18 – find

ways of letting them know your proposals – via their school newsletters, notices in local shops/supermarkets

• Not just parents of current pupils but also prospective pupils• Remember parents are largest group of objectors

consultation

• OSA comments reflect our thoughts on good practice – Code does not go far enough

• Legal principles of lawful consultation- let people know you are consulting- give sufficient information on proposals- give sufficient time for response- take account of responses when making decision

• Retain evidence of consultation and responses received. OSA will request it as part of any investigation

making changes for 2017 entry

• Determination – on or before 28 February EVEN if no consultation was not required

• OSA reports 2013 and 2014 – many examples of schools failing to meet deadline and accurately record decision within minutes of meeting

• Do not need to consult annually if not making changes to last year’s admission arrangements or just raising PAN

• Minimum consultation is once every 7 years• Notify appropriate bodies – school consultees plus governing bodies of

C and VC schools• Place determined arrangements on website and inform LA before 1 May• Make admission arrangements easy to find on website – include all

relevant admission policies

determination

• Legal principles of consultation require you to take account of responses received – how to evidence this?

• Minutes of GB meeting must be detailed• Show consideration of responses and GB views• Paper to GB highlighting responses and operational views

from HT/SLT• Have responses available to view

publication and objections – 2017 entry

• Once determined, must put admission arrangements on website• OSA report 2013/14 – more evidence of failure to do this – OSA have to

hunt for policies• Separate section for admissions and show current policy plus one for

forthcoming academic year• LA must publish all determined admission arrangements on their

website by 15 March• Objections to School Adjudicator by 15 May• Schools Adjudicator can consider objections by any person that

admission arrangements are unlawful or do not comply with Code unless fall within paragraph 3.3 of the Code

• Adjudicator may look at other issues not reflected in original complaint• Binding decision on admission authority – required to change

arrangements

objections

• Largest objector groups

- Parents- Members of the public/campaign groups- Schools and LAs- Appeal Panels, Parish Council and Village Society

OSA role

• Consider whether admission arrangements comply with the Code• LA must refer if they believe admission arrangements breach the

Code• OSA cannot consider complaints about:

- removal of selection- increase of, or keeping same, PAN unless brought by GB of VC or C school- agreed variations to admission arrangements at an Academy- the same or substantially the same issues as determined in last 2 years- arrangements objections

OSA role

• OSA decisions are binding• Referrals are increasing – 162 in 2012/13 to 274 in

2013/14• Important to keep policy in review especially in light of

changes to School Admission Code

prohibited arrangements

Typically arrangements which if used would undermine objectivity of admission decisions:•placement of conditions on admission other than those which have been published•previous schools attended, unless feeder school•priority to “first preference first”•new selection by ability•practical or financial support offered by parents (except optional nursery fees in addition to 15 hours funded support)•status of parents•past behaviour in other schools

prohibited arrangements

• Disability/SEN• Priority for certain hobbies/activities• Grammar schools with highest mark cannot use sibling

link• Fee paying schools as feeder schools• Interviewing parents/pupil• Financial contribution• Use of photographs (except identity for selection

tests)

“commonly used” criteria

• Siblings – be clear on definition• Distance from school – clarity on measurement and

start/end points• Catchment areas – reasonable and clearly defined• Feeder Schools – reasonable, transparent and named• Social & Medical Need – assessment of evidence• Selection by Ability/Aptitude – entry requirements and

testing process• Random Allocation• Faith criteria – must have regard to faith body’s guidance

“commonly used” criteria

• Children of Staff – 2 years employment and/or skills shortage

• Looked After/Previously Looked After Children• UK Armed Forces & Boarding Need (Boarding Schools

only)• Pupil Premium, Early Years Pupil Premium and Service

Premium – can be from school run nursery where named in admission arrangements

school adjudicator concerns

• Feeder schools – reasonable and transparent choice or too many – must be named

• Sixth forms – lack of details on PAN, oversubscription• Sixth forms – option discussions cannot be part of allocation

process• Catchment areas – keep under review• Complexity of some arrangements – parents choose the School

not vice versa• LAC must include all previously looked after• PAN reduction• Arrangements not covered by the Code are not necessarily

unlawful – must be tested against paragraph 14 criteria

questions?

Richard Freeth | 0121 237 3961 | richard.freeth@brownejacobson.comvisit our education portal @ www.education-advisors.com

Please note

The information contained in these notes is based on the position at October 2015. It does, of course, only represent a summary of the subject matter covered and is not intended to be a substitute for detailed advice. If you would like to discuss any of the matters covered in further detail, our team would be happy to do so.

© Browne Jacobson LLP 2015. Browne Jacobson LLP is a limited liability partnership.