23
Report on an investigation into complaint no 05/C/00426 against Manchester City Council 19 January 2006 The Oaks No 2, Westwood Way, Westwood Business Park, Coventry CV4 8JB
Report on an investigation into
complaint no 05/C/00426 against
Manchester City Council
19 January 2006
The Oaks No 2, Westwood Way, Westwood Business Park, Coventry CV4 8JB
Investigation into complaint no 05/C/00426
against Manchester City Council
Table of Contents Page
Report summary 1
Introduction 3
Legal and administrative background 3
Investigation 11
Mr Jackson 11
The Council 12
Table 1 – Pupils getting places in a Manchester community high
school (excluding places on appeal) showing place of residence 17
Table 2 – Pupils getting a place in a Manchester community high
school (excluding places on appeal) showing primary school
attended 17
Conclusion 18
Finding 20
Key to names used
Mr Jackson Complainant
Micklemass Community School Secondary School
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Report summary
Subject
The complaint is that the Council adopted a Secondary School’s Admissions Policy which
discriminated against pupils living outside the City by giving priority within the
oversubscribed secondary schools in the City to pupils attending primary schools in the
City. The complainant says that the effect of this has been that his son’s application to
attend a school within the City was rejected in favour of pupils living further away from the
school, though within the City. The complainant claimed that the Council’s policy is unlawful
and does not comply with the Code of Practice published by the government.
The Ombudsman expresses the view that the Courts should decide whether or not the
Council’s policy is lawful. However, he has considered whether the Council properly took
the Code of Practice into account in formulating its policy. He decided that the Council had
not done so and that this was maladministration. It is his view that the indirect effect of the
Council’s policy was to discriminate against non-Manchester residents and in favour of
Manchester City residents and was maladministration. Thus admissions to the school
which the complainant hoped his son might attend from outside the City were 33 in 2002 to
none at all in 2004.
Finding
Maladministration, causing injustice.
Recommended remedy
The Ombudsman recommends that the council should urgently review its arrangements to
ensure that the code’s guidance is followed and that there is no discrimination against
pupils from outside the City. The Ombudsman is pleased to note that the Council has
already indicated its wish to carry out such a review and to take account of his comments.
The Ombudsman also recommends that the Council should pay the complainant £250 for
his time and trouble in pursuing his complaint.
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Introduction
1. Mr Jackson complains that the Council has adopted a secondary schools admissions
policy which, contrary to the Government’s Code of Practice, discriminates
unreasonably and improperly against pupils living beyond the Council’s boundary by
giving priority for places at all of the Council’s oversubscribed secondary schools to
those pupils attending any of the Council’s own primary schools, with the effect that,
in the case of the school he wishes his son to attend (Micklemass Community
School), out of boundary pupils (such as his son) can no longer obtain admission to
the School and are rejected in favour of pupils attending the Council’s primary
schools who live further away.
2. For legal reasons, the names used in this report are not the real names of the people
and places concerned.1
3. An officer of the Commission has spoken to the complainant, has examined the
Council’s files and has interviewed Members and officers of the Council.
4. An opportunity has been given for the complainant and the Council to comment on a
draft of this report prior to the addition of the conclusion.
Legal and administrative background
The law and Central Government guidance
5. The principal relevant legislation for school admissions is contained in the School
Standards and Framework Act 1998 as amended by the Education Act 2002. There
is also a statutory Code of Practice on School Admissions which admission
authorities, such as the Council have a duty to have regard to.2
6. Admission authorities shall, before the beginning of each school year, determine the
admission arrangements which are to apply for that year. Before doing so the
admission authority must consult various specified bodies. There are some limited
circumstances (which do not apply here) in which consultees and certain parents
have a right to object about the admission arrangements to an adjudicator appointed
by the Secretary of State.3 Admission authorities must publish information about the
admission arrangement for all maintained4 schools in their area.5 Admission
arrangements once published can be amended during the course of the relevant
1 Local Government Act 1974, section 30(3)
2 School Standards and Framework Act 1998, Section 84
3 School Standards and Framework Act 1998, Section 89
4 “Maintained school” means a community, foundation or voluntary school or a community or foundation
special school which is funded and maintained by the LEA. School Standards and Framework Act 1998,
Section 20
5 School Standards and Framework Act 1998, Section 92
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year if there is a major change of circumstances and if the adjudicator approves the
amendments.6
7. The admission arrangements must include the admission numbers for any years to
which it is intended to admit pupils and the oversubscription criteria to be used, and
the order in which they will be applied, to allocate places if the school receives more
applications than there are places available.
8. Advice about criteria is contained in the School Admissions Code of Practice7 and
admission authorities are advised that “school admission arrangements should work
for the benefit of all parents and children in an area”.8
9. The guidance states “admission authorities have discretion, which they must
exercise reasonably, to determine their own oversubscription criteria provided these
criteria are objective, clear, fair, compatible with admissions and equal opportunities
legislation, have been decided with regard to any relevant advice from the local
Admissions Forum and have been subject to the consultation which the 1998 Act (as
amended by the 2002 Act) requires”…“The criteria should be, as far as possible,
inclusive of all elements in the school’s local community”.9 An annex to the Code
states that in deciding the scheme which best suits their residents and their schools,
LEAs should ensure that they “do not disadvantage applicants to their schools
resident in other LEAs (which would be contrary to the Greenwich Judgement).”10
10. The guidance suggests that commonly used and acceptable criteria include sibling
links, distance from the school, ease of access by public transport, medical and
social grounds, catchment areas, transfer from named feeder primary schools and
whether the child is in public care. Admission authorities should make clear the order
of priority in which the criteria will be applied and how tie-break decisions will be
made.11 Oversubscription criteria should be clearly defined, objectively accessible
and explained.12
11. Whilst setting it within the context of sex, race and disability, the Code advises
admission authorities to consider carefully the possible impact, direct or indirect, on
equal opportunities of their proposed oversubscription criteria and the possibility of
disadvantaging certain groups, “even if unintentionally”.13
6 School Standards and Framework Act 1998, Section 89
7 School Admissions Code of Practice
8 School Admissions Code of Practice, paragraph 2.2
9 School Admissions Code of Practice, paragraph 3.4
10 School Admissions Code of Practice, c.10
11 School Admissions Code of Practice, paragraph 3.5
12 School Admissions Code of Practice, paragraph 3.6
13 School Admissions Code of Practice 2003, paragraph 3.12
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12. Parents are entitled to express a preference about the school at which they wish their
child to be educated and admission authorities must make arrangements for parents
of children in their area to express a preference and to give reasons for their
preference.14
13. Admission authorities have an overriding duty, except in some specified
circumstances, to comply with a parent’s expressed preference and they should have
regard to the reasons the parents give for preferring that school15, though this may
not necessarily lead to the allocation of a place. The specified circumstances are:16
• if compliance with the preference would prejudice the provision of efficient
education or the efficient use of resources; or
• if the arrangements for admission to the preferred school are wholly based on
selection by reference to ability or aptitude and are so based with a view to
admitting only pupils with high ability or aptitude, and compliance with the
preference would be incompatible with selection under those arrangements.
14. The admission of a child will not prejudice the provision of efficient education or the
efficient use of resources if the admission would not cause the number of pupils of
the relevant age group admitted to the school to exceed the school’s admissions
number fixed by the admission authority.17
15. The duty imposed on admission authorities to comply with any preference expressed
by a parent shall also apply in relation to any application for admission to a
maintained school of a child who is not in the area of the authority maintaining the
school.18 The Code, in taking account of the Greenwich judgement, makes it clear
that “priority (for admissions) may not be given to children simply because of the fact
that they live in the authority’s administrative area” and “applications for the
authority’s schools by parents living outside the LEA (Local Education Authority) area
must be considered equally”.19
16. Where more parents have expressed a preference for a particular school in a
particular year than it has places in that year, the admission authority must apply its
published oversubscription criteria.
17. Parents may express a preference for more than one school.
14 School Standards and Framework Act 1998, Section 86(1)
15 School Standards and Framework Act 1998, Section 86(2) and R v Newham Borough Council ex parte K
(2002) Times, 28 February
16 School Standards and Framework Act 1998, Section 86(3)
17 School Standards and Framework Act 1998, Section 86 (5)
18 School Standards and Framework Act 1998, Section 86(8)(a)
19 School Admissions Code of Practice, paragraph 3.7 and R v Greenwich London Borough Council, ex parte
John Ball Primary School (1989) 88 LGR 589 [1990] Fam Law 469
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18. An admission authority may choose to give priority to the order of preference
expressed by parents but is not obliged to have such an arrangement. An LEA
formulating a co-ordinated scheme (see below) for schools in its area needs to
decide what weight to give to parents’ order of ranking, and at what stage in the
allocation process. An LEA may consider all preferences should be considered
equally against admissions and oversubscription criteria, and the rank order used
later to decide between a number of possible offers under a co-ordinated scheme. Or
the LEA may suggest adopting the parents’ order of ranking as the key criterion for
allocation, such that all first preferences are considered against the schools’
oversubscription criteria before any second or lower preferences.20
19. If an admission authority chooses to give priority to the preference order, that must
be stated in the admissions arrangements and it must then be applied in practice (so
that all first preferences for a school have priority over second preferences etc.). In
relation to “catchment area schools”, if (but only if) the admission authority has
chosen an arrangement giving priority to the preference order, then a first preference
from a parent outside the catchment area must be met before considering a second
preference from inside the catchment area (and a second preference from outside
will take precedence over a third preference from inside etc.). If the LEA has not
published an arrangement that will give priority to the preference order, then a
second or any other preference from inside the catchment area can take precedence
over first preference from outside the area (and a third preference from inside the
catchment area over a second preference from outside the area etc.). Whether or
not the LEA has a published arrangement for giving preference to the priority order,
any preference from outside the area (whether first, second or any other) takes
precedence over a child from within the catchment area in respect of whom no
preference has been expressed for the catchment area school.
20. There is nothing unlawful in the principle of admission authorities operating
catchment areas as part of their oversubscription criteria and thereby giving priority to
local children whose parents have expressed a preference for the school.21 In view of
an admission authority’s duty in allocating places to give priority to parents who have
expressed preferences, however, the authority should not guarantee places to
parents in a local catchment area, in case the pattern of preferences does not allow
this guarantee to be met. Similarly it should not guarantee places to those who
satisfy any other admission criteria.22 The Rotherham judgement (1997)23 makes it
clear that the admissions authority must consider every parental preference for a
place at the school before considering the children of parents who have not
expressed a preference for it.
20 School Admissions Code of Practice Annex A, A28
21 R v Rotherham Metropolitan Borough Council ex parte Clark and others [1997] EWCA Civ 2768
22 School Admissions Code of Practice, paragraph 3.8
23 R v Rotherham Metropolitan Borough Council ex parte Tomlinson, Clarke and MK LT [2000] ELR 76, Court of
Appeal
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21. A school catchment area, in the absence of a challenge to its geographical nature, is
not rendered unlawful simply because one of its boundaries lies along the boundary
between two local education authorities.
22. For secondary school admissions from September 2005, admission authorities are
required to formulate schemes for co-ordinating admission arrangements for all
maintained schools within their areas.24 This is to ensure, so far as is reasonably
practicable, in relation to any application made in the course of a normal admission
round, that each parent in the area of an authority shall receive a single offer of a
school place under the scheme.25
23. Parents must be invited to express, on a common admissions form, at least three
preferences, which may be for schools within or outside their home LEA’s area. All
preferences must be ranked whether or not the LEA’s agreed scheme itself uses
rank order in allocation. In principle, each of these preferences is a preference with
which the LEA and other admission authorities must comply.26
24. An LEA must inform any other admission authority both within and outside its area of
any application made on the common application form for its school. The parents’
order of ranking need only be shared with those who need to know it, such as
another admission authority which uses ranked order in determining priority. Each
preference must then be considered by the admission authority for the school
concerned and the home admission authority notified if a place is to be offered. If two
or more admission authorities could offer a place to a child, then the place to be
offered will be decided by using the agreed co-ordinated scheme’s provisions for
resolving multiple offers into a single offer from that LEA area.27
25. Where a child is not offered a place at a school for which the parents have
expressed a preference, parents may appeal against the decision to an independent
appeal panel which the admission authority must establish.28 The decisions of appeal
panels are binding on the admission authority.29
The Council’s secondary school admissions policy prior to 2004
24 School Standards and Framework Act 1998 as amended by the Education Act 2002
25 The Education (Co-ordination of Admission Arrangements)(Secondary Schools)(England) Regulations 2002,
Schedule 1
26 School Admissions Code of Practice Annex A, A27
27 The Education (Co-ordination of Admission Arrangements)(Secondary Schools)(England) Regulations 2002,
Schedule 1 and Chapters 6 and 7 of the School Admissions Code of Practice
28 School Standards and Framework Act 1998, Section 94(1)
29 School Standards and Framework Act 1998, Section 94(6)
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26. Before 2004 parents were able to state freely their preference for schools, in their
own order of priority, and where there were enough places at a particular school to
meet all first preferences then every child was allocated a place as of right. Where
there were more children stating a preference for a place at a particular high school
than there were places then available places were allocated using the following
criteria:
• Category 1 – children with exceptional social/medical needs at the discretion of the
Chief Education Officer.
• Category 2 – pupils for whom the school was their first preference and who had a
brother or sister attending Y8 to Y11 at the school when they should take up their
place.
• Category 3 – pupils for whom the school was their first preference, prioritised
according to the distance between their permanent home address and the school,
measured in a straight line.
• Category 4 – pupils for whom the school was a second or other preference,
prioritised according to the distance between their permanent home address and
the school, measured in a straight line.
The Council’s current secondary school admissions policy
27. The Council’s current admissions policy was introduced from September 2004.
28. In April 2005 the Council determined its admissions policy for admissions to
secondary schools in 2006/2007 and issued it to the parents in September 2005. It
says that the policy does not differ in any significant way from that which currently
applied to admissions in September 2005 a copy of which it has provided. The policy
takes account of the need to have a co-ordinated scheme.
29. The Council’s current published admissions policy states that “Manchester will
operate a ranked system. This means that first preference requests are looked at
before second preferences and so on. The order in which [parents] put [their]
preferences is very important”.30
30. The admissions booklet states that the Council will determine who is allocated places
at Manchester community high schools in accordance with its admissions policy as
set out in the booklet. It makes it clear that those pupils who attend a Manchester
maintained primary school have a higher priority for places at the school than those
who do not attend a Manchester primary school. It also states that “all children who
attend a Manchester maintained primary school who have not yet got a place are put
30 Manchester City Council “High School Admissions September 2005” page 5
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into order with those living nearest the school at the top”.31 There are 132 primary
schools in Manchester.
31. The Council’s formal statement of its policy for admission to community high schools
is set out on page 13 of the admission booklet.
“When more parents state a first preference for a place at a high school than there
are places then the available places will be awarded using the following criteria:
• Category 1 Pupils in public care.
• Category 2 Pupils with exceptional medical/social needs.
• Category 3 Pupils for whom the school is their first preference who attend a
Manchester/LEA Maintained primary school and who have a brother or sister
attending the preferred school when they take up their place (but not in a
sixth form).
• Category 4 Pupils for whom the school is their first preference who attend a
Manchester/LEA maintained primary school prioritised according to the
distance between their permanent home address and the school, measured
in a straight line.
• Category 5 Pupils for whom the school is a second or other preference who
attend a Manchester/LEA maintained primary school prioritised according to
preference, sibling connection or the distance between home and school.
• Category 6 Pupils for whom the school is a first preference who do not
attend a Manchester/LEA maintained primary school and who will have a
brother or sister attending the school when they take up their place (but not in
a sixth form).
• Category 7 Pupils for whom the school is a first preference who do not
attend a Manchester/LEA maintained primary school prioritised according to
the distance between their permanent home address and the school,
measured in a straight line.
• Category 8 Pupils for whom the school is a second or other preference who
do not attend a Manchester/LEA maintained primary school prioritised
according to preference, sibling connection or the distance between home
and school.”
32. The admission booklet also provides details of applications and admissions to the
school in the previous year as guidance for applicants. For Micklemass Community
School the details for admissions in 2004 are as follows:
31 Manchester City Council “High School Admissions September 2005” page 6
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• Number of places 300
• Number of first preference applications received 582
• Number of first preferences agreed 300
• Number of second and other preferences agreed 0
• Number of statemented pupils32 6
• Number of pupils with sibling link 114
• Number of places left for other children 180
33. Of the 180, the furthest distance a child lived from the school at initial allocation was
2.554km. At the end of the summer term the distance was 2.729km.
34. Of the 14 non-denominational maintained schools in the Council’s area (including
Micklemass Community School), 10 had more places than first preference
applications and therefore some second and, in seven cases, “other” preference
applicants were allocated places.
35. In two cases, the notes refer not to the number of first preference applications
received but to “the number of first preference applications received from pupils
attending a Manchester primary school”. In addition it is noted that, with respect to
one of these schools, the Council was “able to offer places to all pupils who attended
a Manchester primary school … for whom (the school) was a second or third
preference and some places to pupils who did not attend a Manchester primary, but
not all”.
36. Micklemass Community School was by far the most popular community school in the
Council’s area.
The Council’s infant and primary school admissions policy
37. The current policy (which has not changed in any significant way since at least 2003)
is to allocate places to all pupils seeking admission where the number of such
applications is equal to or less than the number of places. Where the number of
applications exceeds the set number of places available allocation will be in the
following order of priority:
• Category 1 – children in public care.
• Category 2 – children with exceptional social or medical needs.
32 Those pupils with a statement of special educational needs who are allocated places under a different
system
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• Category 3 – children who will have a sister or brother attending the school
when they take up their place, with those closest to the school having
priority.
• Category 4 – if the school still has vacant places, then further admissions
will be prioritised according to distance between the child’s permanent
home address and the school, measured in a straight line. Children living
closest to the school will be admitted until all the places are taken up.
The secondary school admissions policy of Mr Jackson’s home local education
authority
38. Mr Jackson’s own LEA gives priority for places at its maintained secondary schools
to those who live within the defined “priority (geographical) area” of a specific school.
If a parent lives within the priority area, their child will be guaranteed a place at that
school as long as they have made the school their first or second preference and
they apply by the closing date. Where a parent expresses a preference for a school
other than the priority school then, if places are still available, the remaining places
are allocated according to the stated preference and the LEA’s oversubscription
criteria, with first preferences being given priority over second and subsequent
preferences.
Investigation
Mr Jackson
39. Mr Jackson lives with his family in Stockport about a mile (1.6k approximately) from
the boundary with Manchester City Council and from Micklemass Community School.
40. Mr Jackson says that he now has to make a decision about his eldest child’s
education and to apply for a place at a secondary school. His reasons for wishing his
son to attend Micklemass Community School were social and personal. It is close to
where he lives, it has a sixth-form (which his catchment area school does not) and
his son preferred to attend this school.
41. He says he sought and obtained a copy of the Council’s admissions policy and noted
that his son would fall within category seven of the admission criteria (second from
last priority). He says he queried this with the Council and was told that legal advice
received in relation to the (at the time) proposed change of the policy was that
children living outside the City would be able to access places on the same basis as
children living in the City and therefore, as the policy is not based on pupil residence,
it was not in breach of the Greenwich judgement. He says he expressed the view
that, as the overwhelming majority of Manchester primary school pupils are resident
in the City and that non-Manchester primary school pupils are overwhelmingly
resident outside the City, the Council’s policy would be likely to have the same effect
as excluding non-resident pupils and therefore, as applications by parents living
outside the LEA’s area would not be treated equally, the policy was illegal.
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42. Mr Jackson says that he asked the Council to justify its policy in relation to the
Government’s School Admissions Code of Practice and to provide details of how far
from Micklemass Community School the most distantly resident pupil lived, as he
wanted to know if children living further from the school than his son were to be
admitted to the School. He says that the Council’s response failed to address his
questions but simply reiterated the Council’s assertion that its policy was legitimate
since Manchester primary schools are open to all applicants. He says he questions
this stance as in 1999 he had found it impossible to get a place for his son in a
Manchester primary school as the catchment areas were drawn so tightly around the
schools and in one instance he was told by the school that it extended no more than
a few hundred yards from the school. He says that even if that had not been the case
it does not legitimise a secondary school admissions policy which discriminates
against out of area resident pupils who are most likely to attend a primary school
close to their homes and therefore out of the Manchester LEA area. It is
Mr Jackson’s contention that, as place of residence determines to a very significant
extent access to Manchester primary schools, this will inevitably mean that pupils
resident in Manchester will have a disproportionately greater chance of getting a
place in an oversubscribed Manchester secondary school than those pupils living
outside the Manchester LEA’s area.
43. He says that prior to the new policy some children in his home LEA area would get
places at Micklemass Community School. He says that the Council has confirmed
that in the first year of the new policy no children from his area were allocated places.
The data provided to Mr Jackson by the Council showed that in 2003, 18 pupils from
non-Manchester maintained primary schools were allocated places at Micklemass
Community School on initial application (none on appeal), while in 2004 no pupils
from non-Manchester maintained primary schools were allocated places on initial
application (although four were allocated places on appeal). There was a notable fall
in the number of successful applicants from non-Manchester primary school pupils
across all the Council’s schools between 2003 and 2004 (although this trend was
reversed for admissions in 2005 – see below). The Council did not provide
Mr Jackson with comparative details of the numbers of out of area resident pupils
who got places (irrespective of which primary school was attended) although it has
since done so (see below).
44. Mr Jackson says that given the new allocations procedure, which allows only one
application to be made (rather than a separate application to each LEA area in which
a preferred school is located), his son will be placed at a disadvantage, as to rank his
local secondary school as his first preference will mean he has no chance of getting
a place at Micklemass Community School, but if he makes Micklemass Community
School his first preference (with little or no chance of success despite his proximity to
the school) he will probably not get a place for his son at his local secondary school
which is also oversubscribed.
The Council
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45. The Manchester LEA area is 23.3km (14.5 miles approximately) in length and 8.5km
(5.3 miles approximately) in width at furthest points.
46. The Council says that it reviews its admissions policy annually in accordance with the
statutory requirements on consultation. The Council’s secondary admissions policy
for 2005 admissions was considered by the Children and Young People’s Overview
and Scrutiny Committee on 6 April 2004 and was determined by the Executive
Committee on 21 April 2004.
47. In April 2003 the Executive Committee considered a report by the Chief Education
Officer on proposals to amend the primary and secondary school admissions
policies. (The proposed amendments to the primary schools admissions policy were
minor and are not relevant in the context of this complaint). The principal proposed
amendment to the secondary school admissions policy was to introduce priority
within the oversubscription criteria to pupils transferring from Manchester primary
schools.
48. As an introduction to that part of the report which proposed changes to the
secondary school admissions policy, the Chief Education Officer noted that “in recent
years the high school admissions policy has generally been more contentious than
the primary school policy. However, many of the issues arising over the past two
years have had more to do with place availability than any inherent deficiency in the
policy.”33 “Two particular concerns about the current “free preference” admissions
policy are the loss of the “linked school” system and the fact that pupils living in the
areas of other LEAs can obtain places in Manchester community high schools ahead
of pupils resident in the City”.34 He noted that a return to the kind of linked school
system which operated up to 2000 would not be appropriate for a number of
reasons.
49. The report noted that “as to the issue of extra-district children taking places in
Manchester high schools, it is still unlawful to have an oversubscription policy which
gives preference to children living within the Manchester City boundary”. It suggested
that the way forward would be to “introduce a new Category 2 within the
oversubscription criteria to give priority for Y7 (secondary school intake year) places
in Manchester community high schools to pupils attending Manchester primary
schools. This proposed change would not be unlawful, as the primary admissions
policy is an “open” policy and non-Manchester pupils attending Manchester primary
schools would be given the same high priority as their fellow Manchester resident
pupils. It would be a question of maximising opportunities for those children attending
Manchester primary schools”.35
33 Report on Admissions Policies for community and voluntary controlled primary and secondary schools
2004/05, paragraph 20.
34 Report on Admissions Policies for community and voluntary controlled primary and secondary schools
2004/05, paragraph 22
35 Report on Admissions Policies for community and voluntary controlled primary and secondary schools
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50. The report noted that “the possible disadvantages of this change would be that any
Manchester pupils attending non-Manchester primary schools would be a lower
priority for Y7 places in Manchester community high schools. Demand from non-
Manchester pupils for places in Manchester primary schools could also increase.
However, given that primary admissions tend to be confined to a much smaller
“catchment” than high school admissions it is not anticipated that this would cause
any major difficulties”.36
51. The Chief Education Officer’s report to the Executive Committee was supported, in
an appendix, by a report entitled “Statutory Consultation – Admissions Policy for
Community High Schools” on which comments had been requested by 14 March
2003.
52. This report stated that “at the time of the change in policy in 2001 concern was
expressed by many parents and by Members of the Executive Committee, that
children living outside Manchester were accessing places in more popular
Manchester schools at the expense of Manchester children. However, a check on
the position at a very popular high school in the South of the City37 showed that only
10 out of the 300 pupils admitted were non-Manchester residents”. It went on to say
that in “2002 further concerns were expressed by parents and again by Members of
the Executive Committee about the situation. A further check revealed that the
number of non-Manchester children who had obtained places at the same high
school … had increased to 33, in a total of 300 admissions.”
53. The report noted that whilst it would be unlawful for any LEA to have an admissions
policy which denied school places to children living in areas of other LEAs, purely on
the basis of residence, it would be “possible to improve matters, by giving first priority
to children attending Manchester primary schools”. It proposed that the existing
parental preference system be retained but that first priority be given to those
children attending a Manchester primary school.
54. Following consideration of the Chief Education Officer’s report the Executive
Committee agreed to the proposed amendments to the secondary school admissions
policy with effect from September 2004.
55. In April 2005 the Chief Education Officer presented a report to the Executive
Committee following the statutory annual consultation on the Council’s admissions
policy.
2004/05, paragraphs 24 & 25
36 Report on Admissions Policies for community and voluntary controlled primary and secondary schools
2004/05, paragraph 26
37 There are three secondary schools in Manchester with a set number of places of 300 (September 2004). Of
these one is in the north of the city. Micklemass Community School is the most popular of the remaining two
schools.
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56. The report stated that, from 2001, concern had increased about pupils attending the
Council’s primary schools being unable to access places at the Council’s secondary
schools and that this “caused great upset for those affected”. It went on to say that “a
further concern was that Manchester high schools were finding it increasingly difficult
to manage “transition” for Y6 pupils, given that significant numbers were coming from
a range of non-Manchester primaries. Giving a higher priority for Y7 places to
Manchester Primary School pupils was seen as a way of improving the process of
transition.” The report noted that despite wide ranging publicity on the consultation
process only one response had been received (from the Head of a community high
school who indicated support for the policy which gave preference to pupils attending
a Manchester primary school and said s/he had been arguing for many years that it
was perfectly legitimate “for children attending partner primary schools to be given
priority”) and suggested that this indicated a general support for the policy as it was.
The report referred specifically to Mr Jackson’s reservations about the legality of the
secondary school admissions policy and stated that the City Solicitor was
considering the points raised and would report further if necessary.
57. The Council says that it allocates places purely on the basis of parental preference
until there are no more places available in a school. It is only when more parents
state a first preference for a school than there are places available that the question
of which primary school the pupil attended becomes relevant. At this point the over-
subscription criteria are applied. It acknowledges that, once applicants who meet the
first two categories (pupils in public care and those with exceptional medical/social
needs) are dealt with, the admissions categories give a higher priority to pupils who
are attending a Manchester LEA maintained primary school. It stresses that the
priority relates to the primary school attended and not to where the pupil lives and
that a Manchester resident pupil who attends a non-Manchester primary school
would be treated the same as a pupil who lives outside Manchester and attends a
non-Manchester primary school.
58. The Council says that “the rationale for this policy is that it seeks to address
concerns about pupils attending Manchester primary schools not being able to
access places at Manchester High Schools” and that it has an equal concern about
the inability of pupils from outside Manchester to transfer from a Manchester primary
school to secondary school. It says that the concern has arisen since 2001 when the
policy of linking primary schools and secondary schools was replaced by a policy to
allocate places purely on parental preference until the school is full. It says that
“establishing a priority that means that Manchester primary schools feed into
Manchester secondary schools helps to improve the process of transition (from
primary to secondary school)” and that “the concern is not about which local authority
area the children live in”.
59. It says that it has considered the policy carefully and it is satisfied that it conforms to
the Code of Practice on admissions and the Greenwich judgement in that it is fair,
objective and clear. It says that the parents/carers of any child are entitled to express
a preference for a place at any Manchester community high school with no
restrictions whatsoever either in terms of residence or any other factor. It says the
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oversubscription criteria adopted by the Council embrace most of those
recommended by the Code and that “from category three onwards the arrangements
effectively amount to a system of feeder primary schools, in that pupils attending any
Manchester primary schools are given the highest priority for places in Manchester
high schools, regardless of their place of residence”. It says that some pupils cannot
get places at their preferred Manchester school due to oversubscription and this
includes pupils resident in Manchester and outside. It says “it is not a result of a flaw
in the policy, which gives equal rights to pupils living in the City and outside” and
points out that at the time the policy was developed there were 1,661 non-
Manchester pupils on roll in Manchester community/Church of England/Roman
Catholic primary schools.
60. The Council acknowledges that some pupils attend high schools with which they
have no geographical or historical connection but says that this is not surprising
given the wide range of high school provision in Manchester from which parents can
now choose and the admissions criteria. As a consequence it may well be that pupils
who live further from Micklemass Community School than (say) Mr Jackson’s son will
be allocated a place. However, it says that there may be more Manchester primary
school pupils than there are places at the preferred high school and where this
happens priority is given to those with a brother or sister already on the roll at the
preferred school and then on the basis of distance between the pupil’s home
address and the preferred school. This ensures equality of treatment regardless of
residence in one LEA area or another.
61. The Council has confirmed that its admissions policy provides every parent with the
opportunity to state up to three preferences for high schools and that it states that
parental preferences will be treated as if they are in the parent’s priority order. It says
that once the published deadline for receipt of preference forms has passed every
application for places is treated equally. If the number of available places at any
particular school is equal to or greater than the number of preferences expressed
(regardless of the order of priority given to those preferences by the parent) then
every child stating a preference is admitted as of right in accordance with statutory
requirements and the Code of Practice.
62. It says that, where more preferences have been expressed for a particular school
than there are places available, the Council has agreed “oversubscription criteria” to
determine how available places should be allocated. It says that “the priority order
established by application of the oversubscription criteria is not based on the priority
order attached to each preference by parents. The primary school attended is the
deciding factor”.
63. In the course of my enquiries into this complaint, I asked the Council to explain the
apparent lack of compatibility between its admissions policy and its duty under
Section 86(2) and (8) of the School Standards and Framework Act 1998 as its
admissions criteria gives higher priority for places to applicants who are Manchester
primary school pupils who have expressed a second or other preference for a
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particular school over those non-Manchester primary school pupils who have
expressed a first preference for the same school.
64. In response, the Council suggested that the duty imposed by Section 86(2) does not
apply if compliance would prejudice the provision of efficient education or the
efficient use of resources (see above Legal and Administrative Background). It says
that the oversubscription criteria are only used to decide which pupils are allocated
places at schools where “prejudice” would exist if admissions in excess of the
admissions number were allowed. “Manchester’s approach is to set the priority order
according to the primary school attended by each child. There is no reference to the
child’s place of residence and, on that basis, the approach adopted complies with the
relevant sections of the 1998 Act.”
65. The Council says that its own legal adviser has advised that the Council’s
admissions policy is within the spirit and letter of the law and is sufficiently robust to
withstand a challenge.
66. The Council has provided details of admissions of non-Manchester pupils pre and
post the introduction of the new admissions policy, which are set out in the following
tables.
Table 1 – Pupils getting places in a Manchester community high school
(excluding places on appeal) showing place of residence
YEAR TOTAL NUMBER
OF PLACES
MANCHESTER
RESIDENTS
NON-
MANCHESTER
RESIDENTS
%
2003 3339 3189 150 4.5
2004 3229 3108 121 3.7
2005 3199 3075 124 3.9
Table 2 – Pupils getting a place in a Manchester community high school
(excluding places on appeal) showing primary school attended
YEAR TOTAL NUMBER
OF PLACES
MANCHESTER
PRIMARY
SCHOOL
NON-
MANCHESTER
PRIMARY
SCHOOL
%
2003 3339 3257 82 2.5
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2004 3229 3185 44 1.4
2005 3199 3060 139 4.3
67. A comparison with the figures the Council provided to Mr Jackson for Micklemass
Community School would indicate that in 2003, of the 82 non-Manchester primary
school pupils allocated places in all Manchester high schools, 18 (22%) were
allocated places at Micklemass Community School on initial application but in 2004
no such allocations were made.
68. Of those pupils allocated a place at Micklemass Community School the furthest
distance a pupil lived from the School in 2004 was 1.587 miles (2.554 k) and in 2005
the distance was 2.145 miles (3.4513 k). However, these figures do not reveal
whether distance was the only criterion used to allocate the place or was incidental to
other criteria.
69. Since embarking on this investigation, the Council has informed me that, whilst it still
considers its secondary school admissions policy to be legal, it intends to review the
policy to ensure that it is a “good” policy and that it will take account of my views and
conclusions on this complaint. It says that it anticipates commencing this review
shortly and expects to have completed it by the end of December with a view to
introducing any changes for 2007 admissions.
70. As any changes to the Council’s admissions policy will not take effect until
Admissions in 2007 the Council says it is not possible at this stage to confirm if
Mr Jackson’s child will be allocated a place at Micklemass Community School as all
applications are currently being collated and considered with neighbouring
authorities. It says a decision will be made by 1 March 2006 and if Mr Jackson is
unhappy with the decision he will have the right to appeal to the independent
Appeals Committee.
71. Mr Jackson says that given the level of uncertainty since raising his complaint, his
belief that his son stood little or no chance of obtaining a place at Micklemass School
and his concern that an application to Micklemass School might jeopardise any
chance his son had of getting a place at his local school should the application to
Micklemass School fail, he has taken steps to introduce his son to his local school.
As a consequence, his son has changed his own preference and they have now
decided to apply to the local school rather than Micklemass.
Conclusion
72. Mr Jackson complains that the Council had adopted a secondary schools admissions
policy which discriminates unreasonably and improperly against pupils from outside
the City by giving priority for places at all the Council’s oversubscribed secondary
schools to pupils attending any of the maintained primary schools in the City. He
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says the practical effect is that, in the case of the secondary school he wishes his
son to attend, pupils, from outside the city, such as his son, can no longer secure
admission to the School and are rejected in favour of pupils who live further away
from the School. Mr Jackson says the policy is unlawful and does not comply with the
government’s statutory Code of Practice.
73. The Council argues that its policy is lawful and that it complies with the guidance in
the Code.
74. It is not for me to say whether or not the Council’s policy is lawful. That is a matter
which the courts would need to determine. I consider only whether any of the
Council’s actions amount to maladministration. That includes whether the Council, as
required by statute, has had proper regard to the Code.
75. The Code says (at paragraph 2.2) that “admission arrangements should work for the
benefit of all parents and children in an area”. In the context of the Code I do not
think the reference to “area” can be taken to mean the Council’s area but must mean
the local area surrounding the school. The point is even clearer at paragraph 3.4
where the reference is to oversubscription criteria being as far as possible “inclusive
of all elements in the school’s local community” (my emphasis). The Council’s
arrangements are designed to avoid complying with that guidance and that is
maladministration.
76. The Council says that the oversubscription criteria do not discriminate on grounds of
residence. But I think the Council has failed to take into account that discrimination
can be indirect as well as direct. I agree there is not direct discrimination here in the
sense that nothing is said in the policy statement about favouring Manchester City
residents over non-Manchester residents. But that is the indirect effect of the policy
and extra-district admissions to the School, which Mr Jackson is concerned about,
fell from 33 in 2002 to none in 2004. Indeed it was plainly the primary purpose of the
recently adopted policy to achieve a reduction in the number of pupils from outside
the City gaining admission to schools within the City. The consultation document
explained that there was concern about the number of pupils from outside the City
gaining admission to certain popular schools (one of which was this School) and
proposed a new policy “to improve matters”. So both the intention and effect of the
new policy was to ensure that fewer pupils from outside the City gained places, and
the number was reduced to nil in the case of this School. So in terms of what the
Council was trying to achieve, that did indeed “improve matters”. I believe therefore
that the Council set its face against following clear guidance in the Code (paragraph
7.7) that “applications for the authority’s schools by parents living outside the LEA
area must be considered equally” (my emphasis). That was maladministration.
77. The Council says that the arrangements “amount to a system of feeder schools”.
However, the arrangements are very different from what is generally understood by
the term. The Code refers to “named feeder primary schools” (my emphasis) as one
of the suggested acceptable criteria. Even if the Council were to name each of the
132 relevant primary schools as a feeder school for each of its secondary schools,
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I do not think it is reasonable, or within the spirit of the Code, to treat every primary
school within the Council’s area as a feeder school for every secondary school in that
area. There is nothing to suggest that it is more beneficial for children to attend a
secondary school 14 miles away that it would be for them to attend a school, say, a
mile from their homes. Moreover, a fair feeder school system would not exclude local
primary schools which happen to be outside the LEA boundary. So the Council’s
argument that it is using a feeder school system is, I think, disingenuous.
78. The Council says there is no discrimination against pupils from outside the City
because their parents can apply for places in Manchester primary schools and are
considered equally. That ignores the practical reality that securing admission to an
oversubscribed school would generally be more difficult for pupils from outside the
City because priority would be mostly determined by distance. As the Council itself
said in the consultation document “primary admissions tend to be confined to a much
smaller catchment area than high school admissions”.
79. In its initial statement the Council’s admissions policy clearly states that priority for
places will be given in the order of preference stated by the parent so that those
children whose parents have expressed a first preference for a particular secondary
school will be considered before those whose parents have indicated the school is a
second or lower preference. This is then immediately contradicted by the stated
oversubscription criteria which gives priority to any pupil who has expressed a
preference whether first or lower who is attending any Manchester primary school.
This is contrary to the requirement to apply the published admissions policy and is
maladministration.
80. Given the action now taken by Mr Jackson to arrange schooling for his son, his
injustice resides in the time and trouble which the Council’s maladministration has
avoidably caused him.
Finding
81. For the reasons given in paragraphs 75, 76 and 79 I find maladministration by the
Council, resulting in the injustice to Mr Jackson described in paragraph 80.
82. To remedy that injustice I recommend that the Council urgently review its
arrangements so as to ensure that it has proper regard to the guidance in the Code
and that there is no discrimination either direct or indirect against pupils from outside
the City. I very much welcome the indication which the Council had already given that
it wishes to carry out a review and will take account of my comments. I also
recommend that the Council make an ex gratia payment to Mr Jackson of £250 for
his time and trouble in pursuing his complaint with the Council and with me.
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J R White Local Government Ombudsman The Oaks No 2 Westwood Way Westwood Business Park Coventry CV4 8JB
19 January 2006
