In this judgment (handed down on 14 December 2012), Sales J has rejected a challenge to the decision of the London Borough of Richmond accepting proposals from the Roman Catholic Diocese of Westminster for the establishment of two voluntary-aided Roman Catholic schools (1 primary, 1 secondary) in Twickenham. 

The British Humanist Association (“BHA”) claimed that Richmond was not entitled to accept those proposals, but was under a duty, by virtue of s 6A of the School Standards and Framework Act 1998 (“SSFA 1998”) to invite proposals for the establishment of an Academy (or Academies).  The BHA argued that if the proposed schools were established as Academies, there would be many more non-faith places since the Secretary of State will normally require any faith Academy to allocate 50% of its places without reference to faith, whereas under the Diocese’s proposals 2/3rds of the primary school places and all of the secondary school places would be allocated by reference to faith. 

The case turned on s 6A(1) of the SSFA 1998 (inserted by the Education Act 2011 with effect from 1 February 2012), which provides:

“(1) If a local authority in England think a new school needs to be established in their area, they must seek proposals for the establishment of an Academy.”

Sales J disagreed, holding that there was a difference between the local authority concluding that the new schools would be desirable (having been presented with proposals under s 11(1A) of the SSFA 1998 for consideration) and the local authority concluding that a new school was ‘needed’.  There was also a difference, Sales J observed with reference to the authority’s public consultation paper, between the local authority considering that new school places were needed and the authority thinking that a new school was needed. 

In this case Sales J accepted that although the local authority had identified a need for new school places that would in part be met by the Diocese’s proposals, and although it had concluded that the proposed new schools were desirable, it had not identified a need for a new school within the meaning of s 6A(1) and did not therefore have to invite proposals for an Academy.

In the light of an intervention by the Secretary of State for Education, Sales J also gave guidance on how s 6A inter-relates with s 11.  Sales J accepted that, where a person wishing to establish a voluntary-aided school published proposals under s 11, the local authority was under a duty to consider those proposals on their merits as required by s 11 and Sch 2 to the SSFA 1998, and to complete the procedure laid down in those provisions, even if the authority came to the view in the course of that process that a new school was ‘needed’ within the meaning of s 6A(1).

A further point of note from the judgment concerns an initially surprising subsidiary argument by BHA that, in approving the proposals, the local authority had taken into account an irrelevant factor by having regard to the effect that the proposals would have on other state secondary schools in its area.  The BHA argued that as 7 of the authority’s 8 secondary schools were Academies (funded by the Secretary of State) only the Secretary of State could properly be concerned with any adverse effect on those schools.  Sales J rejected this argument on the basis that it was still the local authority who was under a duty to secure sufficient schools for the area, having regard to the various particular needs of the area, under ss 13 and 14 of the Education Act 1996.  He considered it plain that the authority could therefore take into account the effect on other schools in its area, even if it was no longer responsible for funding them.

Clive Lewis QC appeared for the LB Richmond; Robin Hopkins appeared for the Secretary of State; Tom Cross also advised the Secretary of State at an earlier stage of proceedings, but was unable to do the hearing.

Elizabeth Passmore OBE, the Chief Schools Adjudicator, has published the Office of the Schools Adjudicator’s annual report, covering the school year from September 2011 to August 2012.

The Adjudicator hears objections to admission arrangements for all types of schools, with the majority of referrals made by parents. It also considers requests for a variation to determined admission numbers for maintained schools, appeals against a local authority’s notice to direct a maintained school to admit a child, statutory proposals and land transfer cases. In total, it dealt with 265 new cases over the course of the year, 156 of which related to admission arrangements. Local authorities in England are required to produce a local authority annual report that must be sent to the Adjudicator by 30 June each year.

Of the admission arrangement determinations issued, in 43 the objections were fully upheld, 63 partially upheld and in 51 cases the objections were not upheld. The report records that there has been a continuing trend of objections relating to catchment areas, including objections to long established areas, and that concerns have mostly arisen this year because of an increase in the number of children within the catchment. There have also been referrals concerning the priority, or lack of it, for siblings.A few objections this year, as previously, have concerned priority for a Reception Year place for children who attend particular nursery provision; the objections were upheld.

Adjudicators dealt with 60 new requests  to vary admission arrangements and four requests were carried over from the previous year. Of these, 38 variations were approved, four approved with modification, three rejected, three remain pending, one was out of jurisdiction and 15 were withdrawn.Of the 60 variation referrals received this year 48 related to changes to PAN (43 to an increase and five to a decrease), and 12 to other aspects of the arrangements. The report notes that changes to PAN mostly relate to the need to increase the admission number for entry to a primary school as local authorities struggle to find additional places to accommodate the continuing, initially unexpected, but large, increase in Reception age children. For admissions in September 2013 onwards these types of variations will no longer need the approval of an adjudicator as the admission authority itself can increase its PAN. The second group of variations includes adjustments to catchment areas, again as a result of increased demand for places and the unintended effect on some communities of the reduced likelihood of gaining a place when distance within the catchment from home to school is used to allocate places.

The OSA has collated information received from local authorities about admission appeals. As at 31 August 2012, the local authorities had reported on 22,970 primary school admission appeals (1,892, 8%,  of which were upheld) and 15,152 secondary school appeals (2,922, 19%, of which were upheld).

The Adjudicator has not made any formal recommendations for action this year, noting that “it is too early to draw any firm conclusions about the impact of the new Code on strengthening fair access overall“.  Instead, the report notes the following:

• All admission authorities must comply with the requirements of the Code in respect of consultation about; determination of; and publication of their full admission arrangements. In particular, failure to publish as required denies parents the opportunity to object in a timely manner to arrangements that they deem limit fair access in their locality.
• Schools with sixth forms need to ensure they have admission arrangements for entry to the sixth form that meet the requirements of the Code. Students seeking a place should not be hindered in their search by hard to find, incomplete or unclear admission arrangements.
• Local authorities that are concerned about the number of late applications should use their contacts with the local press and other media to publicise the closing dates for applications. This would remind parents to apply in time for their preferences for a school place to be given full consideration.
• Local authorities need to ensure that they meet the statutory requirements for making a direction to a maintained school before issuing a notice of intention to direct the admission of a child. This is essential to ensure that the process is not delayed and a child does not remain out of school for any longer than absolutely necessary.
• The Department for Education should issue guidance for all local authorities and Academy schools to follow if it is considered necessary to seek a direction for an Academy school to admit a child to limit the time the child is not attending a school.

Rachel Kamm