The school gate

Fraudulent applications for school places are a growing problem, with the Chief Schools Adjudicator estimating that 4,200 were made in England in 2009. William Hunter looks at the options available to admissions authorities.

What should admissions policies say about fraudulent applications?

Paragraphs 1.50 and 1.51 of the Schools Admissions Code 2010 set out the circumstances in which an offer of a place can be withdrawn. An offer can be withdrawn when “the admission authority offered the place on the basis of a fraudulent or intentionally misleading application from a parent”. But if the fraud emerges after the child has started at the school, the length of time that the child has been there must be taken into account before withdrawing the place. In all cases where a place is withdrawn the application must be considered afresh and a right of appeal offered.

So a good admissions policy should contain:

• a copy or paraphrase of paras 1.50 and 1.51 of the Code
• a clear warning that a place will usually be withdrawn in the case of fraud
• provision that a place obtained by fraud and not withdrawn will not give priority to siblings (this is recommended by the Chief Schools Adjudicator and the Local Government Ombudsman).

Since these frauds usually involve false addresses, a good admissions policy needs a proper definition of the child’s address. Merton LBC has a very good definition.

There is little official guidance as to how admission authorities should investigate alleged fraudulent applications. What we do know is how they should not do it. Paton v Poole DC, a decision of the Investigatory Powers Tribunal, establishes that it is usually disproportionate to use covert surveillance.

What is left? The Local Government Ombudsman recommends:

• asking for recent documents providing evidence of residence, such as utilities bills, council tax bills, bank statements or tenancy agreements
• asking for documentary evidence about where the child is living and not just the parents; child benefit documents can be revealing
• contacting the primary school if there is any doubt about the alleged residence.

Useful sources of information are the electoral register and council tax records. However council tax officers often refuse to share their records with admission authorities because of the Data Protection Act 1998. The problem is the second “data protection principle” of the 1998 Act: “Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.”

It is probably lawful to use information in a council tax form to check the accuracy of an address given in a school application, all other things being equal. However all other things are not equal. The data protection notices on the tax forms of many councils are incompatible with using the forms to check school applications.

I suggest that authorities should be explicit in their council tax forms and say that the form may be used to check the accuracy of applications for school places.

What procedures should admission authorities adopt when there is an alleged fraud?

It is important to get them right. Parents are increasingly instructing barristers or solicitors to appear before admission committees or appeal panels and one wants to avoid applications for judicial review.

It is fairly straightforward where the alleged fraud emerges before an offer is made. The usual rules of natural justice apply.

It is more complicated where the alleged fraud emerges after an offer is made. Para 1.51 of the Code requires a three stage procedure:  “Where a place is withdrawn on the basis of misleading information, the application must be considered afresh, and a right of appeal offered if a place is refused.”

Stage 1 is the initial decision to withdraw the place, Stage 2 considering the matter afresh and Stage 3 the appeal. The Stage 1 and 2 decisions must be made by quorate meetings of the Admissions Committee to which all members are invited and which all members are entitled to attend. However the Stage 1 governors ought not to participate in the Stage 2 decision.

Authorities have a difficult decision to make if the fraud came to light after the child starts at the school. Para 1.51 of the Code provides that: “In deciding whether to withdraw the place, the length of time that the child had been at the school must be taken into account, for example, it might be considered appropriate to withdraw the place if the child has been at the school for less than one term.”

The policy adopted by some authorities of not withdrawing a place after the first half-term is a fair rule of thumb.

Can local authorities prosecute the makers of fraudulent applications?

In 2009 Harrow LBC prosecuted a parent under section 2 of the Fraud Act 2006 and then withdrew the prosecution.

Could the prosecution have succeeded? By section 2 of the 2006 Act false and dishonest representations are criminal if intended to make a “gain” or cause a “loss”. That means a “gain” or “loss” in terms of “money or other property”; “property” means “any property whether real or personal (including things in action and other intangible property)” (see section 5).

Manifestly the obtaining of a school place by a false representation does not involve an intention to make an immediate gain or loss “in money or other property”. A place at a state school is not a contractual right; it is a statutory right in public law (also see Criminal Law and Justice Weekly 19.12.2009).

As a matter of theory two fraudulent parents could be charged with conspiracy to defraud the admissions authority but that would be extraordinarily heavy handed.

So for all practical purposes the answer is “No”.

William Hunter is a barrister at 1 Chancery Lane (www.1chancerylane.com).