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Education Law

Expert commentary, cases and guidance

12 AUG 2014

Admission Priority for Nursery Pupils

Admission Priority for Nursery Pupils
Richard Gold, Solicitor, Consultant, Stone King LLP

 It is a commonplace that obtaining a place in a maintained school is one of the key stress areas for many parents. The admissions law is simple in principle – parents are entitled to express a preference for the school at which they wish their child to be educated and to have that preference complied with subject to certain defined exceptions – but the process is one of great complexity and is difficult even for articulate and well-advised parents to navigate. Over the period since the Education Act 1980 when the current concept was introduced, there have been sustained and varied attempts to make the process simpler and fairer. This is still very much a work in progress.

 The initial choice of school can be critical to a child’s future educational achievement, so the criteria for entry into primary school are of particular importance. The development of Early Years education, and the establishment of nursery sections of maintained schools which are not subject to the statutory admissions regime, has led to tensions over the age at which a child should start some degree of formal education and where that initial education should take place. This article explores the issues around those decisions and the way the law is currently being applied (or misapplied) to secure solutions that may or may not be regarded overall as fair.

 [1] The material for this article has been derived largely from a Freedom of Information Act request of the Office of the Schools Adjudicator asking for identification of adjudications that dealt with nursery priority. The information forthcoming only identified adjudications where nursery priority was a specific objection. There may have been other adjudications where the point was considered and ruled upon.  

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The Jurisdiction of the Office of the Schools Adjudicator
The Office of the Schools Adjudicator (OSA) has a supervisory jurisdiction over maintained school and academy admission arrangements – by which is meant not just the school’s admissions policy but also all related documents – although that jurisdiction is limited by the fact that adjudicators can only consider arrangements that are referred to them by an objection, are referred to them by the Secretary of State or his associated entities such as the Education Funding Agency, or otherwise come to their attention.
 The adjudicators are somewhat anomalous in that they are appointed by the Secretary of State[2] and the OSA is part of the Department for Education (DfE) but they are required to operate independently – which in practice they invariably and undoubtedly do. They are required[3] to act in accordance with the School Admissions Code (the Code) and admission authorities – the local authority for community and voluntary controlled schools and the school itself for foundation, voluntary aided schools and academies of all descriptions – are required to implement any finding by the adjudicator. Their decisions are governed by public law principles and thus are susceptible to judicial review.
 All admission arrangements must have over-subscription criteria to determine, if a school is over-subscribed, in what priority places are to be offered. The Code is prescriptive in many respects as to the permitted criteria, but very often in practice adjudicator decisions are made in the light of the overriding Code requirement[4] that:

‘In drawing up their admission arrangements, admission authorities must ensure that the practices and the criteria used to decide the allocation of school places are fair, clear and objective. Parents should be able to look at a set of arrangements and understand easily how places for that school will be allocated.’

Until the Education Act 2011 came into force, the adjudicator not only had the power to determine whether or not admission arrangements were compliant with the Code[5] but also was able to determine specific modifications to those arrangements. That meant that the adjudicator could, and did, re-write the arrangements which then became binding on all concerned, usually for three years, although there was power to reduce that period. The power of the adjudicator now, though, is simply to declare that the arrangements are non-compliant and require the admission authority to change them so as to make them compliant. That gives rise to conceptual difficulties as to exactly what as a matter of law the admission authority is required to do, which is considered in more detail below.

 [2] Under s 25 of the School Standards and Framework Act 1998 (SSFA).
[3] SSFA, s 84(3).
[4] School Admissions Code 2012, para 14.
[5] SSFA, s 88, repealed by s 34 of the Education Act 2011.  

 The full article appears in Issue 3 of 2014 of the Education Law Journal. If you subscribe to the journal please click here to read the full article.