Local Government Lawyer - By any means necessary

By any means necessary

Tuesday, 09 March 2010

Fraudulent applications for places at sought-after schools are on the rise but the ability of admissions authorities to do anything about it is limited, writes Mark Blois.

As the latest round of admissions appeals kicks off, a significant number of school places will have been incorrectly allocated on the basis of fraudulent applications. Indeed it seems likely that, with interest in obtaining maintained sector school places increasing as a result of the effects of the recession on the ability of some parents to meet independent school fees, there may be a higher incidence of fraud this year than ever before.

Scale aside, the nature of the problem is also better understood than ever before. In November 2009, the Chief Schools’ Adjudicator furnished us all with a list of the many and sometimes bizarre methods used by some parents to cheat their way into preferred schools by passing off temporary addresses and moves as genuine. More recently it has come to light that the British do not have a monopoly on sophisticated collusion to achieve school places. The Spanish system has attempted to deal with social disadvantage by giving extra points to the children of divorced parents. The public response has been a marked increase in some areas of parents trying to get divorced before the deadline for school applications.

With information to hand as to the types of fraudulent methods adopted by parents, admissions authorities have been making a renewed effort this admissions round to smoke out cheating parents. Regrettably, for all their increased vigilance, attempts to crackdown on this cheating have been seriously undermined by the continuing lack of any proper legal sanctions. Both the existing Code of Practice and criminal law have been weak reeds.

The Admissions Code of Practice provides only that in certain circumstances, it is permissible for a school place to be withdrawn if it can be shown that that place was obtained fraudulently. However, whether a school should, in fact, take this step is said to depend upon the length of time that the child has been at the school at the point at which it is established that the place was fraudulently obtained. The implication of the Code of Practice is that the longer the period of time that has elapsed since the pupil joined the school, the less likely it will be a reasonable course of action on the part of the school to withdraw that place. In short, under the Code parents have nothing to lose by lying as the action allowed only puts them back in the position that they were in already.

In terms of sanctions derived from the criminal law, it is not a criminal offence in education legislation to give false information in order to gain a school place. However, until last summer there existed the possibility that a parent who made a fraudulent admission might be commissioning a criminal offence under section two of the Fraud Act 2006, fraud by false representation.

In May 2009 Harrow Council started a prosecution against a mother for allegedly lying about her address in order to gain a school place for her five-year-old son, the first such prosecution. Harrow’s primary objective may have been for the case to provide a suitable deterrent to others thinking of abusing the school application system. Unfortunately, in July the case collapsed over Harrow’s concerns that they could not make out the relevant test under the Fraud Act by demonstrating a ‘gain’ and a ‘loss’ when these were defined as money or property. The failure of this case in effect gave parents the green light to "play the system" and has probably led to even more brazen cheating in this admissions round.

Yet the government’s response has been muddled. Shortly after the Harrow case, Schools Secretary Ed Balls commissioned the Chief Schools’ Adjudicator to comment on whether existing powers were sufficient to deter fraudulent behaviour on the part of parents. Dr Ian Craig was of the preliminary view that additional disincentives were required and he was then asked to draw up a list of suggested new powers to clampdown on the problem.

However, while Dr. Craig will report again this month, Ed Balls has already made it clear that he does not think it appropriate to blame parents for seeking the best school places for their children, at least not to the extent of their being made the subject of criminal prosecutions. It seems then that in the run up to a General Election there is little government appetite for seeking to restore integrity to the admissions system and benefitting the majority who play by the rules.

Mark Blois is a partner and Head of Education at Browne Jacobson.

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