Room for one more?

Admissions authorities and Independent Appeal Panels are reminded in a recent case of their responsibilities when considering appeals, writes Stephen Hart. “The school is full” is no excuse.

The annual school admissions round throws up difficult decisions for headteachers and admissions authorities, particularly in good quality and popular schools. Faced with seemingly overwhelming parental demand, with numerous appeals and genuine dilemmas over meritorious cases, admissions authorities cannot simply rely even upon the fact that the school is full or on carefully drafted and approved oversubscription criteria as a means of closing down the admissions round. 

The recent case of R (on the application of M) –v- Independent Appeal Panel of Haringey considered a failure by the Independent Appeal Panel (IAP) in its deliberations over M’s child’s appeal. The case provides useful guidance to other local authority IAPs and, through them, to admissions authorities and their internal appeal panels, about the tests that they must apply and the steps which they must take in considering appeals against decisions to decline admission.

The case arose after M, the parent of child PM, failed in an application to place PM in her preferred school. The judgment noted that the school was popular and oversubscribed, from which it may be deduced that it had good educational results. PM was offered another place at a different school. M had relied upon extenuating social reasons, permitted in the oversubscription criteria, namely the impact of social harassment upon PM.

Educational practitioners will be familiar with the admissions process thus far and with the next steps. M exercised her right to appeal to the local IAP. Legal representatives attended the hearing. The IAP did not uphold the appeal. 

M applied therefore for judicial review of the IAP’s decision. The local authority, the London Borough of Haringey, indicated that there were three other schools at which PM could be enrolled. The council also appeared as an interested party to the judicial review proceedings.

Follow the right steps

The High Court upheld M’s application. It declared that the IAP had acted unlawfully and quashed its decision. Its judgment reminds admissions authorities, internal appeal panels and IAPs of the steps which they must follow in dealing with appeals.

First, appeal panels and IAPs should not accept as the reason for declining an appeal a simple assertion by the school that it is full. They must apply the two-part test set out in the Schools Admissions Appeals Code:

1.  establish the facts – this is also divided into two: have the school's admissions arrangements complied with the Admissions Code and were they correctly applied in this case; and, if the child were to be admitted, would prejudice to the school arise?

2.  balance the arguments – between the degree of prejudice to the school against the child's case to be admitted to the school, taking into account the reasons why the parents have selected the school as their preferred option.

The court held that the first test above is subjective: the parental choice of school is tested against the mandatory requirements of the code. If that testing shows that the school has applied the code, arguably, the appeal fails.

Avoid inflexible policies

In the M case, the school relied simply upon a bald statement that the school was full and several management and curriculum problems would arise from overcrowding.  The court interpreted this as a "classic" case of the school allowing an inflexible policy statement to "fetter its discretion" in deciding on M's admission.  They were unable to show any prejudice other than the statement about overcrowding. The court said the school must go further: it must consider whether prejudice would occur if the child in question were admitted.   

The school then made a second mistake. It decided, in considering the second stage, whether there were any exceptional reasons to enrol the child. Wrong, said the court.  The test is not "exceptionality": it is "balancing the arguments" – do the grounds for admitting the child outweigh the prejudice to the school? The IAP should consider the reasons supporting the parent's preference against the prejudice to the school arising from admitting one extra child. Importantly, it must use its educational expertise to assess the evidence before it.

Here the school failed to prove its own case. The court found no evidence before the IAP beyond the general statement describing the shortage of space at the school – and also strayed into comparisons with other schools for which the mother had not applied.

How to avoid being taken to court

What lessons can admissions authorities, appeal panels and IAPs learn?

- Apply the mandatory two-part test contained in the Code;

- Prove your case: if prejudice arises, demonstrate it – for example, through witness statements from teachers who have to teach in overcrowded classrooms or health and safety officers about the strain on school resources;

- Do not rely solely upon general statements: ask what prejudice arises to the school and its other pupils from enrolling this particular child? What benefits can s/he bring? This may require reliance upon general statements but consider also how will taking on this child affect any prejudice;

- Use educational expertise about the impact upon other children’s education in making decisions. Such expertise will be difficult for civil courts – which are not educational experts – to overturn, particularly in the confines of judicial review proceedings.

The case does highlight further problems for admissions authorities, internal appeal panels and IAPs, in the subjective nature of the decision described by the court.

In M's case, the authorities needed to address the parent’s concerns about social harassment. As admissions authorities know only too well, one child's social harassment becomes another child's bullying and a third's "fear" of the local competing gang. Accepting one further child into an already over-crowded school begs the question why another child cannot also be admitted. Accepting one case on subjective grounds runs a high risk of claims of unlawful discrimination and is counter-intuitive to demands for transparency and fairness.

Panels can avoid litigation through careful decisions, with supporting evidence and well-drafted decisions.

Stephen Hart is a senior solicitor in Winckworth Sherwood's education law team. He is also clerk to the governors of a leading voluntary-aided school in London