High Court decision: parents unfairly treated by academy trust’s admission policy

Background

An academy trust ran a secondary school for girls (LPSG) and opened a primary school in 2016. Two years later, in 2018, a local secondary school for boys (LPSB) also joined the academy trust.

However, in 2016 and 2017, despite LPSB not having joined the trust until 2018, the trust indicated that children who attended the primary school would be favoured if they wished to join either LPSG or LPSB. Both secondary schools were oversubscribed at the time.

Despite having made statements “public and private, impliedly or expressly” that pupils at the primary school would be favoured for placements at LPSG and LPBS, the admission criteria for the schools did not include attendance at a specific school, and children at the primary school were therefore at no advantage. In 2018, the trust confirmed to parents that pupils at the primary school did not have the benefit of ring-fenced places at LPSG and LPSB.

Parents at the primary school were informed that the trust would consult on changing the admissions arrangements to give preference to children at the primary school. However, in 2018 when LPSB joined the trust, the trust decided not to amend the admission arrangements.

Again, following a consultation in 2021 to change the admission arrangements for LPSG and LPSB for the 2023 intake, the trust rejected amendments to its admission arrangements.

Office of the Schools Adjudicator decision

A group of parents objected to the admission arrangements for LPSG and LPSB for the 2023 intake, leading the Office of the Schools Adjudicator (OSA) to review the position.

The OSA required the academy trust to revise its admission arrangements without disadvantaging children who did not attend the primary school, having found that pupils at the primary school, whose parents had been misled and relied on the assurances concerning entry to LPSG or LPSB, had been treated unfairly.

The trust accordingly amended the admissions arrangements for the 2023 intake by nominating the primary school as a feeder school for the oversubscription criterion before distance from the schools is considered, as well as effecting a temporary increase in the published admission number at both LPSG and LPSB by a whole class.

High Court decision

A judicial review of the OSA decision was applied for, arguing that the OSA had erred by:

• Considering that unenforceable promises made to parents, or misleading them in any way, could give rise to an unfairness sufficient to give substance to those parents’ objections to the oversubscription criteria
• Having found in favour of the parents, considering it was not necessary to look more widely at the effect of upholding the objection on other admissions to LPSG and LPSB, with the resulting amended policy being unfair.

The High Court considered the OSA decision and dismissed the challenge, finding that the OSA was:

• Correct to consider that the objecting parents had no legal right to preferential admission
• Entitled to find that the admission arrangements were unfair to them
• Permitted not to conduct a further balancing exercise that evaluated fairness and unfairness to others Increasing class sizes did not exclude others.

What does this mean?

The High Court’s decision clarifies that, in respect of admission appeals, the OSA can consider “other” factors that do not give rise to legal rights. None of the assurances that were given to parents in respect of preferential treatment for children at the primary school could have had legal effect, and assurances given by individuals at the academy trust were incapable of changing the existing admission arrangements of the schools involved.

You should ensure that your school’s admission arrangements are reviewed and accord with the requirements set out in the Department for Education’s Schools Admissions Code and provide training to prevent staff from making assurances to parents which do not accord with admission arrangements either in your own school, or in other local schools.