| SPOTLIGHT |
The High Court has rejected a claim which questioned what matters an adjudicator may and must take into account in determining whether a school’s admission arrangements are “fair”.
In Sharp, R (On the Application Of) v Office of the Schools AdjudicatorSharp, R (On the Application Of) v Office of the Schools AdjudicatorSharp, R (On the Application Of) v Office of the Schools Adjudicator [2023] EWHC 1242, Judge Ockelton, Vice President of the Upper Tribunal, found that the adjudicator “was entitled to conclude that she did not need to balance the interests of the objectors against others who might be disadvantaged because there was an available scheme which disadvantaged nobody”.
The judge, who was sitting in the High Court, said the application for judicial review challenged a decision dated 15 August 2022, made by an adjudicator under the auspices of the defendant, the Office of the Schools Adjudicator.
Outlining the background to the case, Judge Ockelton said that the ‘Impact Multi Academy Trust’, runs schools constituted as academies in the London Borough of Bromley. Amongst the Impact Multi Academy Trust's schools are Langley Park School for Boys, Langley Park School for Girls, and Langley Park Primary School.
In the period before 2022, the Trust was called Langley Park Learning Trust. Prior to that, the Trust was called Langley Park Academies Trust, said the judge.
He continued: “Langley Park School for Girls and Langley Park School for Boys are and have been regarded as "good" schools and are oversubscribed.”
The schools do not have the capacity to accept all those whose first choice of school they are.
Langley Park Primary School (LPPS) was first projected by Langley Park Academies Trust in 2013.
The first children, admitted in 2016, reached the first year 6 in September 2022, and so will move to secondary education from September 2023. “Thus, for the first time, LPPS has pupils who may be affected by the admissions policy of secondary schools, in particular the Langley Park School for Girls and the Langley Park School for Boys”, said the judge.
Judge Ockelton noted that the decision under challenge was “a consideration of an objection to the admission arrangements for Langley Park School for Girls and Langley Park School for Boys for the current year, taking effect by admissions in September 2023”.
The judge noted that when the idea for the primary school was being developed, and during its first months of operation, “a number of statements were made, both public and private, impliedly or expressly indicating that children who attended the new primary school would be favoured in applications to Langley Park School for Girls and Langley Park School for Boys”.
This was the case even though, at the time, the Trust was not responsible for the management of Langley Park School for Boys, he added.
In 2016 and 2017 there were meetings for new intake parents and prospective parents and the Head Teacher of the primary school was asked whether those attending that school would be entitled to places at the Langley Park Secondary Schools. The answer, given in writing, was as follows:
"It is the intention of Langley Park Academies, the Multi Academy Trust to which LPPS and Langley Park School for Girls belongs and which is the admissions authority for the schools within the Trust, to go out to consultation in the autumn this year to ring-fence a number of places for those attending a primary school within the Trust – including LPPS […] to ensure that they have a better chance at coming to Langley Park School for Girls. Langley Park School for Boys is not yet part of our Trust and at the moment they decide on their own admissions policy. So parents will need to refer their queries to the school and its governing body".
Langley Park School for Boys joined the Trust in 2018.
In December 2018 the CEO of the new Trust wrote to all parents and carers and said that as part of the negotiations to create a new trust, it was decided that there would not be any change to the Admissions Policy.
The letter stated: “As a result of this, the consultation to change the admissions policy did not take place so there are no ring-fenced places for LPPS children at Langley Park School for Girls. Please note this also applies to places at Langley Park School for Boys.”
The response to that letter was the formation of a group of parents who described themselves as "angry at being misled" about the availability of places at the secondary schools for their children.
The oversubscription criteria for Langley Park School for Girls and Langley Park School for Boys have remained the same since the new Trust. Judge Ockelton summarised them as follows:
1. Looked after and previously looked after children.
2. Siblings of students.
3. Children of staff members at the specific secondary school.
4. All other applicants by distance from the school.
Members of the Parents' Action Group objected to the proposed arrangements for 2023 and 2024. The objection was made to the Office of the Schools Adjudicator.
Judge Ockelton said: “Individual objectors set out something of their personal history and assurances that they said had been made to them. The objectors typically claimed that the decision not to favour children from the Langley Park Primary School was unlawful, and they cited the doctrine of promissory estoppel.”
On 15 August 2022, the adjudicator, Ann Talboys, considered the case and gave her conclusions.
Considering the question of whether the disadvantage to the group was “unfair”, Talboys said: “Ordinarily I would conduct a balancing exercise to determine whether the advantage to one group in giving them priority would be outweighed by disadvantage to another group of children who might be 'displaced' as a result.
“In this case, however, I do not need to conduct such a balancing exercise. My view is that the arrangements in neglecting to give priority to applicants attending the primary school are unfair. However, because it would be possible to change them in a way that delivered the promised benefits to a group of parents without creating any unfairness to other children, the balancing exercise is unnecessary.”
She concluded that the arrangements are “unfair to those children attending the primary school who are there because their parents were misled”.
She added: “The trust has acknowledged this unfairness and taken steps to remedy it by consulting upon naming the primary school as a feeder school and increasing the school's PAN by a small amount for two years to enable the children who have been disadvantaged unfairly to secure places at the secondary school.”
The PAN is the maximum number of pupils that the admission authority will admit to each year group.
The Trust gave effect to the adjudicator's decision by nominating Langley Park Primary School as a feeder school as an oversubscription criterion before distance from the school, and by increasing the PAN by a whole class size in each school, said Judge Ockelton.
The claimant brought a judicial review against the adjudicator’s decision.
Judge Ockelton said that there are “two discrete grounds of challenge”, and described them as follows:
The claimant argued that “fairness in allocating a fixed or limited resource (such as school places) demands that any prioritisation of one group over another must have a good justification”. He also argued that if there was going to be a PAN increase, it should be available to all.
Considering the claimant’s case, Judge Ockelton said: “The concept of fairness is crucial to this claim. Despite the vigour and elegance with which he pursued them, I do not accept either of the Claimant's principal arguments on the meaning and implications of fairness as it applies to this claim.”
“An assessment of fairness is different from an assessment of rights. A person who comes to a decision-maker asserting a right is entitled to have the right recognised if it meets the relevant objective standard, even if that has a wholly detrimental impact on others.”
He added: “Broadly speaking, rights trump fairness.”
Turning to “the process of balance”, the judge said that the adjudicator's decision was that the unfairness to a smaller group of children could be remedied by the proposed class increase without disadvantage to any other children.
He said: “The balancing of one group included against another group excluded is unnecessary because of the availability of a choice between one scheme that excludes the objectors and another that includes the objectors, does not exclude anybody, and incidentally gives an advantage to a further group of as yet unascertained children.”
The judge then turned to the question of whether the adjudicator took “properly into account” another group of people said to be affected.
He said that is the group of people who were “not misled by assurances given in 2016 and 2017 and so did not send their children to Langley Park Primary School with any hope of automatic progression to one of the secondary schools if they sought it”. The claimant said that this group ought to have been taken into account in any assessment of fairness.
Considering this, the judge said: “That argument has formidable difficulties. The first is that it is by no means clear that the group exists.”
He later continued: “The second difficulty is that even if this group exists, it does not appear that there was anything in the material before the adjudicator to cause her to think of it as an actual finite body of children whose admission or non-admission had to be taken into account.”
He said that the third difficulty was that no member of this group had suffered any disadvantage by the upholding of the objection, adding that some of them might benefit from the increase in PAN.
Lastly, the judge said: “The fourth difficulty is that insofar as the possible existence of this group could be taken into account, she did take it into account. At paragraph 38(7) she recognised that different things seem to have been said to different people. […] At paragraph 38(9) she notes the concerns expressed by those "against any element of priority for children who attend the primary school". On the state of the material before her, she had no evidential basis for going any further than that, and no requirement to do so.”
He rejected the claim on both of the principal grounds.
Concluding, Judge Ockelton said: “In my judgment, in considering fairness, an adjudicator is not restricted to giving effect to legal rights, but may take into account factors that do not give rise to legal rights. On the facts of this case the adjudicator was entitled to conclude that she did not need to balance the interests of the objectors against others who might be disadvantaged because there was an available scheme which disadvantaged nobody.
“She was not required to take into account a further hypothetical group who, if they existed, might have liked to secure an as yet unavailable advantage.”
Lottie Winson
