School admissions has been a core area of my work as an education lawyer since 2006. I was an Independent Appeal Panel member for a period of time as a volunteer, which gave me a unique and valuable insight into countless admission dilemmas and appeals.
Whether you are the admission authority this forthcoming season or not, it is vital to be familiar with the fundamentals of school admissions law. If your school qualifies as the admission authority, gaining this understanding becomes even more significant, as you are likely to represent the school as a “presenting officer”.
As a starting point, let’s look at the law and guidance connected to school admissions criteria.
School Admissions Code
First, review the Department for Education's School Admissions Code (DfE, 2021) to ensure that your admissions criteria, and any accompanying documents, comply with it.
To take an example, in paragraph 1.11 the code states the following for oversubscription criteria concerning siblings: “Admission authorities must state clearly in their arrangements what they mean by ‘sibling’ (e.g. whether this includes step-siblings, foster siblings, adopted siblings and other children living permanently at the same address or siblings who are former pupils of the school).
“If an admission authority wishes to give some priority to siblings of former pupils, it must set out a clear and simple definition of such former pupils and how their siblings will be treated in the oversubscription criteria.”
In short, specificity and detail are key when setting out what constitutes a sibling in order to prevent ambiguity.
Second, plan and implement a lawful consultation for the relevant admissions criteria. The aforementioned School Admissions Code states in paragraph 1.46: “Consultation must last for a minimum of six weeks and must take place between October 1 and January 31 in the determination year.”
It adds in paragraph 1.47 that admission authorities must consult with:
- Parents of children between the ages of 2 and 18.
- Other persons in the relevant area who in the opinion of the admission authority have an interest in the proposed admissions.
- All other admission authorities within the relevant area (except that primary schools need not consult secondary schools).
- Whichever of the governing body and the local authority is not the admission authority.
- Any adjoining neighbouring local authorities where the admission authority is the local authority.
- In the case of schools designated with a religious character, the body or person representing the religion or religious denomination.
The code continues (paragraph 1.48): “For the duration of the consultation period, the admission authority must publish a copy of their full proposed admission arrangements (including the proposed PAN) on the school’s website or its own website (in the case of a local authority) together with details of where comments may be sent and the areas on which comments are not sought.
“Admission authorities must also send, upon request, a copy of the proposed admission arrangements to any of the persons or bodies listed above inviting comment. Failure to consult effectively may be grounds for subsequent complaints and appeals.”
Over the years I have been surprised to see some schools failing to meet one or more of these requirements during the consultation process. This can result in many successful admission appeals.
Consider other government guidelines that will likely have an impact upon the key principles and wording of your criteria. For instance, equality legislation carries various obligations for schools, as laid out by the Equality Act 2010 guidance for schools (DfE, 2013).
Also, separate admissions guidance (DfE, 2023) exists for applications from certain families, such as the children of crown servants, so this is worth bearing in mind before publicising the relevant criteria.
In my experience, two of the numerous keys to achieving lawful admissions criteria are consistency and specificity. If either factor is missing, or underestimated, you are likely to encounter significant difficulties in the future.
Admission appeal hearings
Admission appeal hearings are governed by various regulations, which are listed on page four of the School Admission Appeals Code 2022 (DfE, 2022) and incorporated within the code itself.
While representing parents, I have observed panel members privately chatting and laughing with presenting officers before, or after, appeal hearings, particularly where the school was the admission authority. In many instances, this resulted in the school being compelled to provide a fresh appeal hearing.
The School Admission Appeals Code states (paragraph 1.6): “Admission authorities must ensure that panel members are independent and retain their independence for the duration of their service.”
The kind of conduct described above presents a very poor picture of procedural bias, and potential lack of panel member training. It destroys any confidence that parents have in the appeals process and is arguably an unlawful act. It could be easily avoided. An admission authority must take any reasonable steps to ensure that the panel is independent.
It is crucial to build and present a detailed written statement explaining your school's case for prejudice. I have observed many appeals where a single page has been presented by the school, along with five minutes of verbal waffle and (rather weak) points, which resulted in Appeal Panels allowing up to 50% of the appeals. A success rate at this level can be overwhelming for many schools.
In the scenario described above, I have encountered confused and agitated presenting officers, who did not understand that the appeals ultimately succeeded because the school's case was weak.
The Appeal Panel simply followed the School Admission Appeals Code in reaching its decision and was not convinced by the minimal data given by the presenting officer. A single page simply saying “the school is at capacity and to exceed it will cause problems” is not enough.
Although it is not legally binding, you may wish to review the guidance Advice for admission authorities on school admission appeals (DfE, 2023) to gain a deeper understanding of the admission appeals process. This was published relatively recently by the DfE and contains useful tips that can be applied to your approach for handling appeals.
The matter of school admissions fraud
After many years of handling school admissions appeals in different capacities, this experience has reaffirmed one universal truth: most systems can and will be exploited.
Schools that are in or around wealthy areas should be particularly cautious if they use distance or catchment area criteria, as wealthy parents can exploit this by temporarily living in other properties or adopting similar tactics. Likewise, faith schools need to be cautious of applicants who, for instance, feign membership of a faith in order to secure admission.
A simple online search of “school admissions fraud” will show you a range of interesting cases from across the country of alleged admissions fraud. While there are no useful statistics for us to rely on, the increase in media coverage since 2010 is a very telling sign that such fraudulent applications will continue, and probably increase over time.
I would advise partnering with your local authority's admission teams (if possible), nearby schools, and, where appropriate, the police, to plan, manage, and deliver counter-fraud strategies that are both fair and compliant with both admissions law and criminal law.
Oversubscription can be incredibly difficult for school leaders to manage, as it can undermine school resources, the education and wellbeing of other pupils, and staff wellbeing. Adopting lawful admissions criteria helps to ensure stability. Do not hesitate to seek specialist advice from an education lawyer as this can save your school from challenges in the future.
I have observed large groups of parents label a particular school as poor for numerous reasons, only for it to become heavily oversubscribed the following academic year with many appeals being lodged.
Irrespective of your school’s popularity and resources, gaining an understanding of school admissions law will help you to manage oversubscription now, and in the future.
- Nabil Dance is an education lawyer who advises parents and schools in England and Wales. He is a former Independent Appeal Panel member for school admission appeals. You can contact him via firstname.lastname@example.org. The contents of this article do not constitute legal advice and are provided for informational purposes only. Read his previous articles for Headteacher Update via https://bit.ly/htu-dance
Further information & resources
- DfE: Equality Act 2010: Advice for schools, February 2013: http://bit.ly/3hbol7m
- DfE: School Admissions Code, September 2021: https://bit.ly/3Jk6HKw
- DfE: School Admission Appeals Code, October 2022: https://bit.ly/3R87X5z
- DfE: Advice for admission authorities on school admission appeals, January 2023: http://bit.ly/3jdLur5
- DfE: Admission of children of crown servants: Explanatory note, (accessed) January 2023: https://bit.ly/3DjIFvg