1 ADMISSIONS APPEALS BUTTERFIELD CONSULTANCY LTD.

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ADMISSIONS APPEALSADMISSIONS APPEALS

BUTTERFIELD CONSULTANCY LTD

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ADMISSION CRITERIAADMISSION CRITERIA

• Are they clear, fair and objective?

• Are they in plain English and commonly used community languages?

• Do they set out clearly the timescales?

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• Are the criteria free from doubt and easily understood?

• Are they objective and based on known facts?

• Are they procedurally fair and equitable for all groups of children?

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• Do they enable parent’s preferences for the schools of their choice to be met to the maximum extent possible?

• Provide parents or carers with easy access to helpful admissions information

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• Are “Looked after children” number one?

• Distance, Siblings, Travelling Arrangements – are they defined?

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• Are parents able to give details of religious and philosophical convictions?

• Catchment areas – you can have them as long as they are not arbitrary – do they consider population, bus routes, walking distance?

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• No interviewing

• Schools cannot say they will only accept children whose parents have put their school as the first preference

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CAN THERE BE A CHALLENGE TO CAN THERE BE A CHALLENGE TO ADMISSION CRITERIAADMISSION CRITERIA

The criteria could be challenged before the AdmissionAppeal Panel or by way of Judicial Review.

• If challenged before the Panel the members should consider the possible interpretations and adopt the interpretation that produces the most sensible result.

• It is only where there is established of self evident unlawfulness that an Appeal Panel should adjourn and let the parents raise the matter in the High Court.

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PARENTAL PREFERENCESPARENTAL PREFERENCES

Parents must be able to express a preference as to the school they would like their child to attend.

• Be able to give reasons for that preference.

• Be able to set out any religious or philosophical convictions they would like taken into account.

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PARENTAL PREFERENCESPARENTAL PREFERENCES

• The Admission Authority must comply with the parents preference unless places have been allocated up to the published admission number and the Authority can show that admitting the child would prejudice the provision of efficient education or efficient use of resources.

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DISABILITY DISCRIMINATION ACT DISABILITY DISCRIMINATION ACT 19951995

• The provisions of the 1995 Act apply to admission arrangements

• A disabled person is discriminated against if, for a reason which relates to their disability they are treated less favourably than people who are not disabled and it cannot be shown that the treatment is justified.

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• At the moment schools do not have to remove or alter a physical feature.

• Schools must publish information on admission arrangements for disabled pupils, access arrangements for such pupils, the steps being taken to treat disabled pupils as fairly as other pupils and plans for increasing the accessibility of the school.

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• When hearing an appeal the Panel

should consider whether there has been

discrimination

• Where cases are brought on the basis of

disability they must consider whether

the pupil is disabled and whether or not

there has been discrimination.

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• The onus is on parents to show the Authority was aware of the disability and have treated the child differently from pupils who were not disabled. If the parent proves this the Panel should then consider whether or not the Authority has looked at making reasonable adjustments so that the child could be admitted to the school.

• If the child is disabled, has been treated differently from the pupils who are not disabled and the school has not considered making reasonable adjustments the Disability Rights Commission indicates the appeal should be allowed.

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Examples of what might be taken into account in considering whether a proposed adjustment is reasonable include:

a) The need to maintain academic, musical, sporting and other standards

b) Money available

c) Cost

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d) The availability of provision through special educational needs law

e) The practicalities of making a particular adjustment

f) The health and safety of the disabled pupil and others

g) The interests of other pupils

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BEGINNING THE APPEALBEGINNING THE APPEAL

• The Admission Authority must make arrangements for parents to appeal.

• The parents should be told in writing why the application was unsuccessful.

• The parents should give reasons for wishing to appeal.

• No set timescale to return the appeal form but a date should be given by which it must be returned.

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BEGINNING THE APPEALBEGINNING THE APPEAL

• At least 14 days notice must be given of the date for the appeal.

• The appeal should normally be held within 30 school days of an appeal being made or, for appeals made during the normal admissions ground, within 30 school days of the specified closing date for receipt of appeals.

• At least 7 days (5 working days) before the hearing the Admission Authority should supply the clerk with the necessary documents.

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APPEAL PANELSAPPEAL PANELS

• Must consist of 3 or 5 members.

• Must consist of at least “one education expert” and “ one lay member.”

• Appeal Panel Members must be “appointed”

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SEX DISCRIMINATION ACT SEX DISCRIMINATION ACT 19719755

• Admission authorities must not discriminate between boys and girls in the way they admit children to a school except where the school in question is a single sex school

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RACE RELATIONS ACT 1976 & RACE RELATIONS ACT 1976 & 20002000

• Admission authorities cannot discriminate against applicants on the basis of race, colour, nationality or national or ethnic origin

• Public bodies, including schools have a duty to promote racial equality

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Schools and local authorities have a duty when carrying out their functions to have regard to the need to

a) promote equality of opportunity for disabled people

b) eliminate unlawful discrimination

c) eliminate disability related harrassment

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d) promote positive attitudes towards disabled people

e) encourage disabled peoples’ participation in public life

f) take account of disabled people’s disabilities even where that involves more favourable treatment

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EQUALITY ACT 2006EQUALITY ACT 2006

It is unlawful for schools to discriminate against a person on the grounds of that person’s religion or belief in the following ways:

a) In the terms on which it offers to admit him/her as a pupil;

b) By refusing to accept an application to admit him/her as a pupil; or

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EQUALITY ACT 2006EQUALITY ACT 2006

c) Where he/she is a pupil of the establishment:

i. In the way in which it affords him/her access to any benefit, facility or service;

ii. By refusing him/her access to a benefit, facility or service;

iii. By excluding him/her from the establishment; or

iv. By subjecting him/her to any other detriment

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• Complaint 01/C/015721- parent complained all panel members were white males. The ombudsman said ideally attempts should be made to ensure the panel reflects the makeup of the local community but failure to do so was not maladministration.

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Complaint 05/B/3822

The ombudsman found that it was maladministration for a gentleman who was a governor of a school that the children of 7 appellants currently attended to sit on an appeal panel involving those parents.

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INFANT CLASS APPEALSINFANT CLASS APPEALS

• Classes containing children, the majority of whom are aged 5, 6 or 7 must not exceed more than 30 pupils for each qualified teacher.

• There is a duty on authorities and governing bodies to comply with this limit.

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• Once a class size of 30 has been reached a child can be refused a place on the grounds that “qualifying measures” would be required to keep to the statutory limit i.e. provide more accommodation or increase the number of teachers.

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The Admission Authority must show:

a) 30 places have been allocated

b) They have been allocated in accordance with the admission arrangements

c) It is, therefore, necessary to take “qualifying measures”

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Parents sometimes raise the question of whether or not there is money available for another teacher and/or another classroom

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If this point is raised the question is whether or not the school has any spare money available not the authority

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INFANT CLASSINFANT CLASS

The Appeal Panel can allow an appeal if satisfied:

a) The decision to refuse admission was not one which a reasonable Admission Authority would have made in the circumstances of the case (Ground A) or

b) The child would have been offered a place if the schools admission arrangements had been properly implemented (Ground B)

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• To allow an appeal under Ground B the Panel must be satisfied that the Authority did not allocate places in accordance with the admission arrangements and that the child would have got a place if places had been allocated properly.

• When considering an appeal under Ground B the Panel can only consider information available to the Admission Authority when it made its decision together with material the Authority would have been aware of if it had acted reasonably.

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The courts have held that in considering Ground A:

• In considering Ground A the Panel can receive any new information the parents wish to put forward even though the Authority was not aware of it at the time the application was considered.

• However, this evidence, to enable the Panel to allow an appeal on Ground A must be persuasive.

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However, the draft School Admissions Appeal Code indicates that appeal panels can only take into account information that was available to the admission authority when they considered the application.

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• When considering an appeal in respect of Infant Classes the Panel should consider any future prejudice which would be caused by admission of an additional child i.e. the effect on the school in future years of admitting the child e.g. the cost of engaging another teacher.

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• If a panel was to interfere with the decision to refuse a place at the preferred school you must find that the authority in making its decision was or would, in the light of all the evidence now available, be perverse.

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• The panel must be satisfied that no reasonable authority could have made or would make the decision under appeal.

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THE TWO STAGE PROCESSTHE TWO STAGE PROCESS

• Stage one – the onus is on the Council to make out a case against admission on the grounds that one of the statutory reasons for refusing to accede to parental preference applies. If the Authority does not show that this is the case the appeal must be allowed.

• Stage two – the Panel must balance the reasons for refusing admission against the reasons given by the parents for wanting their child to attend the school. An appeal can only be allowed where the parent’s reasons, on balance, prevail.

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MULTIPLE APPEALSMULTIPLE APPEALS

If the Authority presents it’s case on more than one occasion, the case must always be the same. The Authority cannot produce new evidence or expand upon it’s case as the appeals proceed.

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Where an appeal panel are dealing with several appeals in respect of the same school three options are possible at the first stage:-

1) The Panel can agree that no appeals can be allowed without creating prejudice and move to the second stage; or

2) Agree that all appeals can be allowed without creating prejudice; or

3) Agree that some more children can be admitted to the school before prejudice would be created

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If the Panel decides admission of additional children would result in prejudice, it should consider, for each individual case, whether the parents grounds for the child to be admitted to the school outweigh the prejudice. This involves no comparison between appellant’s cases.

If there are several cases which outweigh the prejudice to the school and merit admission, but the Panel determined that the school could not cope with that number of successful appeals, the Panel should compare cases and decide which of them to uphold.

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If a Panel decides further children could be admitted without prejudice to the school, it must determine how many could be admitted and allow appeals up to that number.

In considering which appeals to allow, the Panel may have some regard to the admission criteria but also to other factors in the individual parent’s cases so that any compelling reasons for admission which the parents present can be taken into account.

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PREJUDICE – WHAT IS IT?PREJUDICE – WHAT IS IT?

• To show prejudice is more than the numbers game.

• The information presented to the panel must show how the conclusion was reached that prejudice would be caused by admitting another child.

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• Prejudice can include size of classrooms, size of playgrounds, cloakroom accommodation, number of toilets, number of computers, the way classes are organised, staffing levels, health and safety, the number of children with special educational needs, the number of children who are wheelchair users.

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• Parent’s case – medical reasons, social reasons, proximity to the school, travelling,delivery of children to school, collection of children from school.

• A factor the Panel should take into account is whether or not the child has been offered a place at another school – this can be particularly relevant if there is a discussion about travelling to and from school

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REASONS FOR DECISIONSREASONS FOR DECISIONS

• Panels must give reasons for their decision

• It seems a standard form letter is not sufficient as it does not tell the reader anything about the particular facts and circumstances of the appeal.

• It is important parents who appeal know why their appeal was unsuccessful.

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• The letter should explain in full why the Panel decided the individual circumstances of the parents case were considered sufficient or insufficient to outweigh the prejudice arguments of the Admission Authority (Code of Practice – paragraph 4.83 [England] 4.84 [Wales])

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The letter should be the letter of the Panel written either by the Chairman or the Clerk and approved by the Chairman and the remainder of the Panel.

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THE ROLE OF THE CHAIRTHE ROLE OF THE CHAIR

• Welcome the parties

• Introduce the Panel members and the clerk

• Introduce the presenting officer for the Authority

• Explain the procedure

• The limited scope of an infant class size appeal

• Explain the two stage procedure

• Explain the Panel is independent

• Explain the decision is binding on the Admission Authority

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THE ROLE OF THE CLERKTHE ROLE OF THE CLERK

• Outline the basic procedure to the parents and deal with any questions they may have

• Ensure the relevant facts from both parties are presented and recorded

• Order the business

• Be an independent source of advice on procedure, the Codes of Practice and the law on admissions

• Record the proceedings, decisions and reasons

• Notify all parties of the decision

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ROLE OF THE CLERKROLE OF THE CLERK

• The Clerk should keep brief notes

• These do not have to be verbatim

• The Clerk should keep notes of the hearing until at least the admission process for the year is complete

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ROLE OF THE PANELROLE OF THE PANEL

• Be independent and impartial

• Be informal

• Make a decision on the evidence heard

• Hear and carefully note the evidence

• Establish the material facts

• Ascertain any relevant law

• Reach a decision with reasons

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ROLE OF THE PANELROLE OF THE PANEL

Have all the parties:

• Understood the nature of the proceedings?

• Said everything they want to say?

• Been treated courteously and made to feel at ease?

• Feel the Panel has been listening to and understood the points made?

• Be clear as to when they are to be informed of the decision?

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TRAININGTRAINING

• Members of Panels and Clerks must be given training before they take part in any hearings

• Panel members should be given regular updates on legislation, guidance, court decisions and ombudsman’s reports

• Authorities must keep records of when Panel members attend training

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RULES OF NATURAL JUSTICERULES OF NATURAL JUSTICE

The Panel must comply with the rules of natural justice:-

1) The parties must have all the papers

2) The parties must be given an opportunity to put their case

3) No person who has an involvement in the matter should be involved in the decision making process

4) Essential that no outsider could consider there was any unfairness or bias on the part of anyone involved in making the decision

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RULES OF NATURAL JUSTICERULES OF NATURAL JUSTICEPossible problem areas

1) Talking to one of the parties in the absence of the other

2) One of the parties being alone with the Panel

3) Asking inappropriate questions e.g. “What is wrong with the school offered by the Authority – my grandson goes there”

4) Body language

5) Falling asleep?

6) Do you know anyone?

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HUMAN RIGHTS ACT 1998HUMAN RIGHTS ACT 1998

• It does apply to Appeal Panels

• Panels have to act in a way which is compatible with Convention rights

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Article 2 of Protocol 1

• Under this article no person shall be denied the right to education. Authorities must respect the right of parents to ensure education and teaching is in conformity with their own religious and philosophical convictions.

• However this is not an absolute right – it does not create a right to education in any particular institution or in any particular manner.

• As long as a child is provided with suitable and adequate education there is no infringement of Article 2 of Protocol 1

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Article 8Article 8

• Article 8 gives a right to family life.

• The Courts have held that children of the same family attending different schools is a breach of Article 8.

• However, Article 8 is not an absolute duty.

• If children of the same family have to attend different schools and as a result one of them may arrive late this is a factor for the Panel to take into account.

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Article 8Article 8

• However, it is not to be regarded as a necessarily determinative factor.

• It is a factor to be considered by the Panel and they will decide how much importance to attach to it.

• It is for the Panel to decide, having regard to the issue of lateness for school and the other circumstances of the case if it was perverse to refuse admission

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PROPORTIONALITY PROPORTIONALITY

• All decisions have to be proportionate

• This is the fair balance between the protection of individual rights and the interests of the community at large

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PROPORTIONALITY PROPORTIONALITY

To decide whether or not a decision is proportionate it is necessary to consider:-

1)Whether relevant and sufficient reasons have been given for the decision

2)Whether there was a less restrictive alternative

3)Whether there has been some measure of procedural fairness

4)Whether safeguards against abuse exist

5)The task of the Panel is to balance the needs of the child and of the school and decide which outweighs the other.

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