October 29th, 2010 by James Goudie QC

As is well known, where the parental preference is for an oversubscribed school, LEAs are required to do more than to apply their published admission criteria.  Subject to exceptions, s86(2) of the School Standards and Framework Act 1998 requires them to comply with the parental preference.  The relevant exception in Haringey IAP v R (ota M) (2010) EWCA Civ 1103 was that provided by s86(3)(a), namely “if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources”, which led the LEA to refuse M a place at the preferred school, notwithstanding her exceptional social need to attend the school.  The LEA and the IAP were under a duty, pursuant to s84 of the Act, to act in accordance with relevant provisions of the School Admissions Code.  The Code requires IAPs to follow a 2 stage process.  The first stage is establishing the facts.  The second stage is balancing the arguments.  At the first stage the relevant facts include whether the oversubscription criteria for the school were correctly and impartially applied to the child concerned, and whether or not there would be prejudice caused by the additional admission of the child.  The Court of Appeal, allowing the IAP’s appeal, held (para 28) that the enquiry into prejudice is “essentially objective”, and that the attributes of a particular child are encompassed within the first stage enquiry only if those attributes are found likely to make unusual demands on the school.  This enquiry does not encompass an assessment whether, in the light of a child’s particular talents, benefit to the school arising out of the proposed admission would outweigh the prejudice with the result that there would be no net prejudice.  The Court of Appeal also observed, obiter (paras 37 and 38), that the IAP’s function when considering at the first stage whether admission arrangements had been correctly applied is one of review of the LEA’s decision rather than the IAP applying the arrangements itself.  In circumstances in which the admission criteria require the LEA to exercise judgment, such as whether the child has an exceptional medical, social or educational need for a place at the particular school, the function of review requires the IAP to “ask itself only whether the negative conclusion of the authority was reasonable”.

James Goudie QC


Success for University Student?

October 15th, 2010 by Clive Sheldon QC

An update on my blog from 21st September. The former student from Queen’s University, Belfast has been afforded a review of his degree grade. The review is, we are told, ‘expected to examine his degree classification on the alleged grounds of inadequate supervision and procedural irregularities’ (see http://www.bbc.co.uk/news/uk-northern-ireland-11523919). The High Court has adjourned the judicial review proceedings for three weeks for the review process to take place.

This appears to be a successful outcome for the student, as the provision of a review is about as much as he could have expected to achieve by way of his legal proceedings.  Whether his degree result will actually be improved remains to be seen.


Two recent developments worthy of at least the passing attention of education lawyers

October 4th, 2010 by Tim Kerr QC

Readers of this blog may want to note two recent developments worthy of at least the passing attention of education lawyers.  Both show the zeal of Mr Gove and his team for legislative activism, although he has also recently complained (rightly) of too much legislation and guidance in the education field.

First, the Education (Prescribed Public Examinations) (England) Regulations 2010 (SI 2010/2327).  These are due to enter into force on 1 January 2011. They update the recognised qualifications for which maintained schools are obliged to enter their pupils, without charge to the parents.  For the first time, favoured alternatives to standard GCSEs and A levels are formally prescribed for the purposes of the sections of the Education Act 1996 (sections 402, 451, 453 and 454), which impose obligations on schools in relation to entering pupils into examinations. The Education (Prescribed Public Examinations) Regulations 1989 (so far as they apply to England) are revoked.  Among the newly prescribed qualifications are Asset Languages Qualifications and the International Baccalaureate Diploma.

Secondly, many readers will have seen press reports quoting Mr Gove as saying he wants to do three things to protect teachers against allegations of assault.  Practitioners will be aware of the danger that an allegation can paralyse a teacher’s career, whether well founded or not.  Too often in my experience, the outcome is the departure of the teacher after lengthy suspension or sick leave, without the allegations ever being either proved or dismissed.  It is difficult to commend the present system.  No reforming laws have yet been drafted, but the plan is (i) to allay teachers’ fears that touching a pupil is likely to lead to disciplinary action; (ii) to give teachers a right to anonymity when faced with allegations from pupils; and (iii) to cut down and clarify the hundreds of pages of guidance on disciplining students and on bullying.

Tim Kerr QC