Of the 32,435 appeals lodged for secondary places in September 2017, slightly more than 6,000 were found in favour of parents.
It means that when you strip away the 7,000 or so appeals lodged but not heard, only one in four appeals were found in favour of parents – or to put it another way 75 per cent of hearings were found in favour of the secondary schools.
The most popular secondary schools and academies can find themselves facing upwards of 75 appeals each year, and with continued pressure on school places that number is likely to grow. The time taken to manage appeals is also increasing. Parents are asking more questions in advance of hearings to properly prepare their cases; professional representation is sought by some parents in the belief that it improves their chances; and, in my experience working with schools and academies on appeals, appeal hearings tend to take longer than they did a few years ago.
All this adds up to significant additional time and cost for the senior leadership.
It might be argued that such time is well spent given the importance of school admissions, but with 19,000 appeal hearings failing to change the allocated secondary school, it is hard to build support for that point of view.
Instead, the statistics suggest that the current admissions appeals system suits neither schools nor parents and we have to ask if it remains fit-for-purpose.
The main problems with this system are the number of bites of the cherry a parent can take when securing a school place, the knock-on effect that has on other pupils and schools, and the freedom to appeal for places in other schools without needing any substantive grounds.
Where a parent is allocated a place at their third choice school, the current system means that this child can also be placed on the waiting list at schools one and two and simultaneously permits the parent to appeal for places at those same schools.
If an appeal for school one succeeds, then a space is created at school three by virtue of that pupil moving to school one; the pupil also comes off the waiting list at school two and the appeal for school two is withdrawn.
So this one appeal has an impact on the admissions status of three schools. When you consider how this system affects the 32,435 secondary school appeals, it is easy to see how more than 7,000 appeals go unheard, undoubtedly after much work has gone into preparing for them. It causes a merry-go-round of pupil moves between schools as appeals succeed and waiting lists shrink.
At a time of unprecedented pressure on school budgets, a more efficient system of allocating school places without unduly eroding parental choice must be developed.
One option is to tighten the appeals system so that appeals can only be brought where prescribed grounds are met. Currently the appeals code directs panels to uphold an appeal where the admission arrangements were not correctly and impartially applied. It is sensible for this to remain a ground for appeal under any new system.
The code also directs panels to uphold the appeal where it finds that the admission arrangements did not comply with admissions law. Under a new system this may not be required.
The admissions code already requires local authorities to refer an objection to the schools adjudicator if they are of the view or suspect that the admission arrangements determined by other admission authorities are unlawful. If that duty is being discharged, there should be no unlawful admission arrangements by the time appeals are brought.
In its November 2016 annual report, the Office of the Schools Adjudicator made a recommendation that “the Department for Education may wish to consider emphasising to local authorities the importance of scrutinising admission arrangements”.
To effectively tighten the grounds, it will be necessary to remove from the appeals code the direction to panels to admit children simply on the basis that their admission would not prejudice the provision of efficient education or efficient use of resources and the expectation that the panel balance the arguments for prejudice put by the school and the parents.
If only one of the existing grounds of appeal are to remain, others must be added to it to ensure a fair and just appeals system that does not unfairly prejudice parents or schools. A tightening of the current prejudice test may well fit the bill.
The current system expects parents to set out their prejudice usually in a free text box on an appeal form. Little, if any, guidance is given as to what may constitute prejudice, how to set it out in the form or how to present it at an appeal hearing. Given the large number of appeals each year and the fact that the prejudice stated in most parent cases are limited to a handful of themes, it must be possible to set out those themes in the appeal form and provide guidance to parents on how to then explain why they are prejudiced in that way. If that is correct, then those themes can form the basis of the grounds of appeal together with a catch-all category of some other substantial reason.
This framework not only sets grounds for the appeal but also provides parents with more support in framing their appeal which should improve the fairness of the system.
This in turn allows us to introduce a cost-saving measure: paper-based appeals to determine merit and where merit presents itself, the right to an appeal hearing.
This suggested approach is not without flaws but it, or a better version of it, could be an improvement on the current system. Or at the very least, it should spark debate about the fitness, fairness and efficiency of our current system and how it can be developed for the better.
- Dai Durbridge is an education lawyer and partner at Browne Jacobson.