OVERSUBSCRIBED SCHOOL

October 29th, 2010

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

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