School admissions framework: Legal update


The current primary school admissions process continues to lead to poorer outcomes for the most vulnerable and disadvantaged children, says Richard Oldershaw of the Child Law Advice Service.

Places must meet the needs of looked-after children. Picture: Gilbert Gulben/Adobe Stock
Places must meet the needs of looked-after children. Picture: Gilbert Gulben/Adobe Stock

Parents and carers are due to find out if their child has been offered a place at their first preference primary school on 16 April 2020 (“national offer day” for primary school places in England). While parents and carers do have the right to express a preference for a particular school in the application process, there is no guarantee of a place being offered at their preferred school or schools.

The Department for Education figures show that in 2019 at primary level, 90.6 per cent of applicants received an offer of their first choice school and 97.5 per cent received an offer of one of their top three preferences. All children have the right to an education that is suitable for their age, ability, aptitude and any special educational needs that they may have. However, there are concerns that the current school admissions framework does not support the most vulnerable and disadvantaged children in society. While the attainment gap between disadvantaged pupils and their peers has narrowed by at least 9.5 per cent since 2011, the current admissions process continues to lead to poorer outcomes for the most vulnerable and disadvantaged children.

Oversubscription criteria

If a school is oversubscribed, the school will apply their oversubscription criteria to prioritise applications and determine the order in which places are allocated. Schools do have a certain amount of discretion in deciding how their oversubscription criteria is formulated. For example, faith schools can use faith-based oversubscription criteria to determine their allocation of places whereas designated grammar schools can give priority to students with high academic ability. However, with the exception of designated grammar schools and independent schools, highest priority must be given to looked-after children and previously looked-after children in accordance with paragraph 1.7 of the school admissions code.

Looked-after children and previously looked-after children are regarded as two of the most vulnerable groups of children in society. As such, it is critical that a school place is available that can meet the individual child’s needs. The Children Act 1989 Care Planning, Placement and Case Review guidance published by the DfE highlights the importance of education to these groups: “Education, like health, is closely linked to quality of life in adulthood. There is a large body of evidence about the relationship between education and life chances which has informed the current strong policy focus on the education of looked-after children.

“Children looked after by a local authority suffer from a number of interlocking educational disadvantages. Some are ‘external’ such as the experience of frequently disrupted schooling and the lack of opportunities to acquire basic skills. Others are pathological, such as low self-esteem.’’

There is statutory guidance published by the DfE that focuses specifically on the duties that local authorities have to these children in the context of education, titled Promoting the Education of Looked-after Children and Previously Looked-after Children.

The school admissions code does provide the Secretary of State with the power to direct a school to admit a looked-after child, even when a school is full. However, this is used sparingly to the detriment of looked-after children.

A recent private member’s bill, sponsored by Lord Triesman, aims to give children adopted from overseas the same priority as looked-after children and previously looked-after children for admission into maintained schools.

Framework gap

There is also a notable gap in the admissions framework for those children who are not looked-after or previously looked-after, but where there is some form of children’s services involvement – children who are on a child in need plan or a child protection plan, for example. Research conducted by the DfE in 2019 found that children who had been in contact with a social worker at any time since year 5 achieved on average 20 grades lower at GCSE than their peers, meaning they get two grades lower in each of 10 GCSEs.

Another group of vulnerable children are those with exceptional medical or social needs. Most, but not all, schools include this as part of their oversubscription criteria. Schools that use this criterion must set out in their arrangements how they will define this need and give clear details about what supporting evidence will be required (e.g. a letter from a doctor or social worker) and then make consistent decisions based on the evidence provided. Schools tend to apply this particular rule stringently and the school admissions code is fairly vague in outlining how this rule should be applied.

In June 2019, the then Education Secretary Damian Hinds announced that the school admissions code would be changed in order to support the most disadvantaged children. However, no concrete changes to the school admissions framework have been made since this announcement. It is clear that a review does need to be conducted, even more so in light of recent concerns that there are a lack of school places and school places not being commissioned in the areas which need them most.

POINTS FOR PRACTICE

  • Schools must set out in their arrangements the criteria against which places will be allocated at the school when there are more applications than places.
  • Highest priority must be given, unless otherwise provided in this code, to looked-after children and all previously looked-after children.
  • Schools must ensure that their admission arrangements do not disadvantage unfairly, either directly or indirectly, a child from a particular social or racial group, or a child with a disability or special educational needs.
  • Parents of “summer born” children can apply to defer their child’s entry to school until the September following their fifth birthday and request that they are admitted outside of their normal age group – to reception rather than year 1.

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