Case reference: Objector: Admission Authority: Date of decision:
ADA/000638 Derbyshire County Council Friesland School 3 December 2004
Determination In accordance with section 90 (3) of the School Standards and Framework Act 1998, I partially uphold the objection to the admission arrangements determined by Friesland School. I determine that for admissions in September 2005 oversubscription criteria should now read as follows: The number of intended admissions for the year commencing September 2005 will be 225. The school will initially consider all first choice applications and where applications for admission exceed the number of places available, the following criteria will be applied, in the order set out below: Category 1 Children in public care. Category 2 Children living in the normal area served by the school. Category 3 Where the child has a brother or sister attending the school at the time of admission. Category 4 Where there are medical grounds (supported by a Doctor‟s Certificate) for admitting the child. The medical grounds must make a case that it is imperative that the child in question attends Friesland School rather than any other school. Category 5 Other children who live outside the normal area served by the school. In the event of over-subscription within any of the above categories
applications will be placed in order using distance from the school „as the crow flies‟ with those living nearer to the school being accorded the higher priority. Distance will be measured by Garmin Etrex 12 channel GPS or equivalent or better instrument with the distance being from a set point on the school campus to the front door of the main dwelling house of the applicant. In the event that less than 225 first choice applications are received the Governors will consider all second choice applications and apply the same criteria and separation system as outlined above until 225 places are offered. If 225 is still not exceeded the Governors will consider all third choice applications and apply the same criteria and separation system to determine the hierarchical ranking order. Waiting List Waiting lists will be maintained in accordance with the LEA‟s policy. The referral 1. Derbyshire County Council (“the Council”) has referred an objection to the Adjudicator about the admission arrangements (“the arrangements”) for Friesland School (“the school”), a foundation school, for September 2005. Jurisdiction 2. These arrangements were determined under section 89(4) of the School Standards and Framework Act 1998 (“the Act) by the governing body which is the admission authority for the school. Although there was some delay in the process of consultation and determination the arrangements have been determined by the governing body. The determined arrangements were notified to the objector in a letter dated 4 July 2004, which omitted a copy of the admission policy but this was faxed to the Council on 14 July 2004.The Council submitted its objection to these determined arrangements on 13 August 2004. I am satisfied that this objection has been properly referred to me in accordance with section 90 of the Act, and that it falls within my jurisdiction. Procedure 3. In coming to my conclusions, I have had regard to the Act and Regulations made thereunder, the Code of Practice on School Admissions (“the Code”), Part III of the Sex Discrimination Act 1975, Part III of the Race Relations Act 1976, Part IV of the Disability Discrimination Act 1995 and all the evidence presented so far as it is relevant to the objection. 4. The documents I have considered in reaching my decision include: i. the Council‟s letter of objection of 13 August 2004 and supporting documents; ii. the school‟s response to the objection and supporting
documentation; iii. the current School Organisation Plan for 2003/4-2007/8; iv. the Council‟s booklet for parents seeking admission to schools in the area in September 2005/06 (“the admissions booklet”); v. maps of the area identifying relevant schools; vi. representations from the school and the Council, including responses to questions put by me. The School’s Admission Arrangements 5. The school‟s admission arrangements are set out in the admissions booklet published by the Council in August 2004. They can be summarised as follows: The number of intended admissions for the year commencing September 2005 will be 225. The school will initially consider all first choice applications and where applications for admission exceed the number of places available, the following criteria will be applied, in the order set out below: Category 1 Children living in the normal area served by the school. In the event that more than 225 first choice applicants apply in Category 1 a lottery will be drawn with the first 225 names drawn being offered a place. The remaining applications will also be drawn and this will determine their order on the waiting list. Category 2 Where the child has a brother or sister attending the school at the time of admission. In the event that the school receives more than 225 first choice applicants and the boundary line occurs in Category 2, places will be offered to siblings up to the 225 maximum by distance ‟as the crow flies‟. Category 3 Where there are medical grounds (supported by a Doctor‟s Certificate) for admitting the child. In the event that the school receives more than 225 first choice applicants and the boundary line occurs in Category 3, places will be offered to siblings up to the 225 maximum by distance ‟as the crow flies‟.
Category 4 Other children who live outside the normal area served by the school on the grounds of proximity of the child‟s home „as the crow flies‟ to the school with those living nearer to the school being accorded the higher priority. In the event that less than 225 first choice applications are received the Governors will consider all second choice applications and apply the same criteria and separation system as outlined above until 225 places are offered. If 225 is still not exceeded the Governors will consider all third choice applications and apply the same criteria and separation system to determine the hierarchical ranking order. 6. It is noted that these arrangements will be subject to determination by the Adjudicator. The closing date for parents to return their application form was 22 October 2004. The Objection and the School’s response 7. The objection The Council has objected to the arrangements as follows:
(i) First preference scheme ….a first preference scheme would not be in the best interests of Derbyshire parents and is contrary to the co-ordinated scheme agreed by the Admission Forum….. The scheme is based on the premise that parents will be invited to state three preferences which will be treated equally, and ranking order only used to determine the highest provisional offer possible for each applicant. Friesland school did not respond during the formal consultation process…. (ii) Children in public care (‘looked after children’) There is no mention of children in public care. The DfES Admission Code recommends that all admission authorities give top priority to children in public care in their over-subscription criteria. (iii) Home to school measurement The use of distance „as the crow flies‟ is of concern. The DfES code indicates that some admission authorities have been criticised by the Local Government Ombudsman for using methods which did not take into account the shortest walking distance. (iv) Use of a lottery as a tie breaker …to use a lottery as a tie breaker is contrary to the DfES Admission Code advice….
(v) Waiting lists …. waiting lists need to operate in accordance with the co-ordinated scheme. (vi) Published admission number …The school‟s published admission number of 225 which, if sustained could place additional pressure on teaching accommodation as indicated in a recent Net capacity Assessment. The Council has also drawn attention „to the fact that it is not clear that the school has consulted all schools as required by the Code...‟ 8. In this adjudication I will refer to the school‟s first preference first oversubscription criterion rather than a „first preference scheme‟ as a scheme can only be something formulated and run by the LEA. 9. (i) The school‟s response First preference first criterion
The school believes that „the interests of Derbyshire parents would bes t be served by offering them their first preference. In the event that there is oversubscription then parents should have their second preference etc considered and this the school considers is what most parents would and are expecting to happen‟. (ii) Children in public care (‘ looked after children’)
The school‟s argument is that it „takes any child that is within the defined catchment area produced each year by its admission criteria and process ….‟ the school does „ not discriminate against any child whether they have SEN, Looked After, Gifted and Talented et al „. The school can „see no reason for the authority to impose a Looked After Child onto the school when clearly other schools are better funded and able to provide the necessary resources‟. (iii) Home to school measurement
„The distance from the school as „the crow flies‟ is accurately measured. The Authority‟s consultation of taking the shortest walking distance is open to numerous appeals as parents find alternative routes to school. We as an Admission Authority cannot possibly resist every challenge of this nature without incurring enormous bureaucratic and administrative cost. The distance measure „as the crow flies‟ is accurate and fair. No parent has challenged this criterion as being unfair throughout the Admission Authority‟s history‟. (iv) Use of a lottery as a tiebreaker
„The school‟s proposal for a lottery in the event of a tiebreaker relates to first preference in the designated catchment area. At present approximately 140/150 children live within that area as confirmed by Derbyshire County Council‟s document of August 2004. This is very unlikely to occur….the Governors concluded that applying a distance rule within the old „ catchment
„area was discriminatory and that a lottery would be offering equal chance to those with equal admission rights‟. (v) Waiting lists
„The school‟s waiting list criteria is that suggested by the Admission Ombudsman. The school believes it to be (a) workable: we have never been challenged over procedure (b) fair: it relates to the criterion for school admission into Year 7 by using exactly the same criteria categories(c) relates to natural justice for parents living outside the designated area by placing importance on how long they were on the waiting list rather than distance. (vi) Published admission number
„The school‟s published admission number has been 225 for the last five years. The Authority notified the school that the new Net Capacity assessment should be 207. This was based upon an incorrect survey of the school buildings. The school was re-measured and new drawings produced. Despite repeated attempts to discover the new figure, the Authority has failed to produce it. We do not know what the authority believes to be the correct figure. We would argue that we have five-year groups operating very successfully at 225…We do believe that with the use of capital formula and remodelling of the existing provision we will improve on our teaching space. Consequently we are of the opinion and supported by the Authority‟s QDD assessment and our popularity within the community that we provide the quality of teaching and learning that makes this argument null and void‟. 10. The school on the question of deficient consultation has responded that „The school‟s programme of Governor meetings led to a delay in consultation over our admission arrangements for 2005. However, in our defence it was never apparent that first preference could/would be outweighed by second and third preferences…The school consulted once the governors recognised the need and had agreed a new policy on preference.‟ Consideration of Factors and Conclusions 11. It is clear from the correspondence relating to this case that the process of determining the school‟s admission arrangements for September 2005 within the LEA‟s co-ordinated scheme has been far from satisfactory. 12. To turn first to the implementation of a co-ordinated scheme. Regulations require applications for all secondary schools within an LEA‟s area to be co-ordinated for September 2005 intakes. The LEA began consultation late in December 2002 inviting secondary headteachers to attend one of a number of seminars. The headteacher of Friesland attended one of these seminars on 4 December 2002.The LEA wrote to schools on 19 January 2004 with details of its proposed co-ordinated scheme which had been approved by the Admissions Forum. That scheme is based on the premise that parents will be invited to state 3 preferences, which will be treated equally, and the ranking order only used to determine the highest
provisional offer possible for each applicant. The school did not respond in writing during the consultation period and no objection was made but the school believes that the LEA were well aware of Friesland‟s position that it wished to operate a first preference first criterion. The LEA notified schools on 29 April 2004 confirming that the co-ordinated admission arrangements would be introduced unchanged from the consultation draft. The school has expressed concern that to their knowledge no consultation took place with the parents of children in the primary schools. The LEA in response to that issue has stated „that there is no requirement to consult as you describe‟. On this matter I would draw the LEA‟s attention to paragraph 4.2 of the Code which states that „admission authorities are encouraged to establish the views of parents before determining their admission arrangements‟. The school also is of the view that „it was never clearly stated that second/third preferences could outweigh first preferences until the meeting in June 2004 when the process had been agreed‟. The Council does not accept that view. 13. Regarding the school‟s admission arrangements the LEA wrote to the school on the 5th March 2004 and again on 24th March 2004 concerned that it had not received any consultation from the school relating to admission arrangements for 2005/06. The school eventually provided details of the school‟s proposed admission arrangements for 2005/06 in an attachment to an undated letter but received by the Council on 14 April 2004. The LEA did not formally respond in writing to that consultation but met with the school on 18 May 2004 at Chief Education Officer level to try to resolve concerns. A further meeting was held on 8 June where the LEA detailed the Council‟s objections. The school governors met on 24 June 2004 and determined its admission policy, which did not address the Council‟s objections. 14. The Council is concerned that the school did not consult all schools as required. Since the objection the school has confirmed that it consulted with all community, voluntary aided and foundation schools within a five-mile radius of the school. The consultation requirements are governed by section 89(2) and (3) of the Act and the Education(Determination of Admission Arrangements)Regulations 1999 which make it clear that admission authorities should consult other admission authorities and the governing bodies of community and voluntary controlled schools that are not their own admission authority, within an area called the „relevant area‟. The Education (Relevant Areas for Consultation on Admission Arrangements) Regulations 1999 place a responsibility on LEAs to determine relevant areas, after due consultation. The LEA has not been able to confirm whether it considers that consulting all schools within a five mile radius of the school constitutes the relevant area. I urge the LEA to advise the school further on this matter so there is no uncertainty in future consultations. 15. I also note from my enquiries that it appears the school has failed to notify its neighbouring admission authorities of its determined arrangements other than Derbyshire LEA. The Act (section 89 (4) (b)) is clear that an admission authority should notify all those admission authorities it was required to consult on its determined arrangements. 16. From the documentation provided to me it is evident that determining the school‟s admission arrangements has been a protracted and difficult
process. Concerns were raised by the Council relating to the matters currently objected to as early as 1 April 2003. The process has been hindered by the school failing to complete its consultation on its arrangements by I March 2004 and generally by both the school and the LEA failing to respond to each other in writing to the consultations. I do not find this situation acceptable. It has led to continuing uncertainty for parents late into the admissions process and in addition because of delays in the provision of supplementary information I have been unable to reach a determination before the closing date for applications. 17. To turn now specifically to the objections in question.
First preference first criterion 18. The Derbyshire Schools Admissions Forum has agreed a co-ordinated scheme for admissions whereby parents are invited to apply for any three maintained schools listing them in priority order. Places are then allocated according to each school‟s admission criteria and if a place can be offered at more than one school then a place will be offered at the highest priority school for which the child is eligible. This is commonly referred to as an equal preference scheme. 19. It is the Council‟s view that the school‟s first preference first oversubscription criterion undermines the agreed co-ordinated scheme and would not be in the best interest of parents. Firstly, the Council suggests that it would be possible for the school to be over-subscribed with out of area first choice preferences, only to find that in area children are denied a place because their application to another school is unsuccessful. This the Council says would disadvantage normal area children and may unduly pressure a normal area parent from not making any other school a higher preference because they may not gain a place at Friesland as a result. If they did not make Friesland the first preference it would also create problems for the Council in accommodating these parents later on. 20. Secondly, the first preference scheme would undermine the advantages of operating a normal area or catchment criterion which is found to be helpful in rural authorities such as Derbyshire and has the potential to adversely impact on the costs of home to school transport. 21. Thirdly, it would unnecessarily complicate the operation of the coordinated scheme and would undermine the Authority‟s objective of establishing clear and consistent arrangements that are easily understood by parents. The Authority points to the information in the admissions booklet which states „it is advisable to include your child‟s normal area school as one of the preferences‟. 22. In response the school refers to the Code of Practice. The Code makes it quite clear that co-ordinated schemes do not „ affect the rights and duties of the governing bodies of … foundation schools to set and apply their own admission arrangements and oversubscription criteria….they do not mean that all admission authorities in an area have to have the same or similar oversubscription criteria‟( Code paragraph 6.3). In referring to the LEA
process of administering the co-ordinated scheme the Code also makes it quite clear that an admission authority may use rank order in their oversubscription criteria. „The parents‟ order of ranking need only be shared with those who need to know it, such as another LEA which uses rank order in its co-ordinated scheme, or a school admission authority whose oversubscription criteria mention rank order‟ (Code paragraph 6.7). 23. The school believes that the overwhelming opinion of parents would favour the school‟s position and are willing to hold a meeting with year 6 parents from their five main feeder schools. The governors would agree immediately to concede the first preference policy if the majority at that meeting did not want the school to take a first preference position. 24. The school accepts that it could be oversubscribed from out of area applicants but argue that „ first choice outweighs second and third choice if parental choice is to mean anything‟ …..and that „parents within the catchment area could apply for a school place outside of the area with the back up of coming to Friesland School if this fails. How is this fair to parents who live outside the designated area who put Friesland first…‟? 25. The law places an overriding duty on admission authorities to comply with parents‟ declared preference (Code paragraph 3.8). I therefore consider it entirely appropriate that an admission authority would wish to meet the expressed first preference of a parent but I have to weigh up the overall impact on parental satisfaction of one school operating a first preference first criterion within a co-ordinated equal preference system. 26. The school has an admission number of 225. For the September 2004 admissions the school received 149 applications from within the normal area (oversubscription category 1), 37 applications from siblings (category 2), no applications on medical grounds (category 3) and 81 applications from outside the normal area (category 4) – a total of 267 applications. All applications were considered as first choice applications. This pattern of applications was similar for the previous two years with never more than 149 applications from within the normal area. 27. The Council in August 2004 provided the school with information on the number of Year 6 pupils resident within the school‟s normal area. The figure is 156, well within the 225 admission number. Clearly under the determined arrangements if all 156 residents from within the normal area applied to Friesland as their first choice they would all gain a place. 28. In reaching my conclusion on this issue I would be concerned if the operation of the first preference first oversubscription criterion denied the opportunity of local children gaining a place in their local school. However that is not the case as normal area children can be reasonably certain from the information provide to them in the admissions booklet that if they put Friesland first choice they will be offered a place. In these circumstances I consider that normal area children are not disadvantaged by the operation of a first preference first criterion and I am not persuaded by the Council‟s case that upholding the objection would be in the best interests of Derbyshire parents.
29. Finally on this matter I would urge the school for the next admission round to follow up its own suggestion, in conjunction with the Council, and consult with Year 6 parents on the first preference system. Children in public care (‘looked after children’) 30. The Code recommends that admission authorities give looked after children top priority in their oversubscription criteria highlighting that they „are a disadvantaged group who have very low levels of attainment, often related to frequent changes for school because their placements change‟ (Code paragraph 3.14). Whilst this is only guidance admission authorities must have regard to that guidance and it is my view that the governors of the school would need to give very good reasons as to why such children should not be given top priority. The school was alerted to the DfES guidance by the Council in a letter dated 22 January 2004 which also confirmed that that Derbyshire Admission Forum had endorsed the need for all admission authorities in Derbyshire to give top priority in oversubscription criteria to children in public care. The Council has recognised this need and has therefore prioritised them as number one within their oversubscription criteria for community and voluntary controlled schools. 31. The school‟s case against giving children in public care top priority is that they do not discriminate against any child and that other schools are better funded and able to provide the necessary resources for such children. In correspondence with me the school has confirmed that in the last five years no children in public care have been admitted. I do not consider that the case made by the governors justifies a departure from the guidance I therefore uphold the objection. Home to school measurement 32. In its admission policy the school sets out clearly that home to school measurement will be as „the crow flies‟ with the distance being from a set point on the school campus to the front door of the main dwelling house of the applicant‟. The Council objects to the using of distance „as the crow flies‟ referring to the Code(Paragraph 3.6) that states that some admission authorities have been criticised for using methods which did not take into account the shortest walking distance. The school argues that the Council‟s approach of applying the shortest walking distance is open to numerous appeals as parents find alternative routes to school. The school states that no parent has challenged this criterion as being unfair throughout the Admission Authority‟s history. 33. Distance from home to school is commonly used by admission authorities in their oversubscription criteria. Some measure distance by the shortest walking route, others by straight line distance. In this case the school wishes to continue to use a distance measure which they believe to be fair and accurate. W ith any method of measurement used it is important that parents are clear as to how the distance is measured. In this case it is clear to parents how the distance is measured and no local evidence has been presented to me which persuades me that the school‟s methodology should be changed. I therefore do not uphold the objection.
Use of a lottery as a tie breaker 34. The school includes a lottery tie-breaker in Category 1 of its admission criteria; in all other categories it uses distance from school as the tie- breaker. The use of a lottery as a tie-breaker is unusual and both the school and the Council have commented further on this issue in subsequent correspondence to the initial objection. The school takes the view that a distance based tiebreak would seriously undermine all parents with a Draycott address but doesn‟t elaborate further on that point. It also believes that the lottery will almost certainly never be used if the first preference position exists. The Council argues that the use of a lottery tie-break introduces more uncertainty to the system and leads to an arbitrary outcome for parents. 35. On this issue, on the evidence presented to me, I am not persuaded that use of a lottery system as a tie-breaker is necessary and more appropriate than the use of distance which is the tie-breaker used in the other categories. I take the view that the use of distance as a tie breaker rather than a lottery system will assist parents in assessing their chances of getting a place at the school and so bring more certainty to the system. I therefore uphold the objection. Waiting lists 36. The Council has objected to the school‟s waiting list procedure as it does not conform to that in the co-ordinated scheme. The school‟s procedure departs from that in the co-ordinated scheme in terms of the date to which the waiting lists are maintained and by giving weight to the timing of the application. 37. The Code is clear in its advice to admission authorities in its use of waiting lists. „Waiting lists should be clear, fair and objective, and must not give priority based simply on the date the application was added to the list. If new applicants have a higher priority order under the oversubscription criteria, they should be ranked higher than those who have been on the list for some time‟ (paragraph 7.29.). 38. It is my view that a case has not been made that there should be a departure from the strong advice in the Code and I also take the view that the school‟s timetable should align itself with that agreed for the co-ordinated scheme. I therefore uphold the objection. Published admission number 39. Subsequent to the objection the Council has provided a copy of the net capacity form, signed by the headteacher, which calculates an indicated admission number of 210. It also has provided further detail on where it believes there to be a deficit of accommodation assessed against DfES Building Bulletin 98 exemplar designs. 40. The school in support of maintaining its admission number of 225 argues that it has five year groups operating successfully at 225, that it is popular with the community and that its quality of teaching and learning
makes the argument for a reduction in the admission number null and void. In support of the quality of learning, standards of attainment, climate and ethos and the management and leadership of the school it has highlighted the Council‟s assessment which has never been less than 2 in any one of the four elements (scored 1-4, with 1 being excellent). 41. The Code in Paragraph A.46 provides guidance that admission numbers should be set with regard to the capacity assessment for the school. Admission authorities can however set a number which is higher or lower than the capacity assessment. In reaching a decision whether to uphold or reject the objection by the LEA I need to take into account whether based on the information provided to me the school can accommodate total pupil numbers that an admission number of 225 would generate, whether admitting those numbers would impact on adversely on standards, how that number would respond to parental demand and the likely impact on neighbouring schools. 42. The school has provided details of the current numbers on roll. Each of the year groups 7 to 11 has 225 pupils on roll, apart from year 11 with 215. The school is therefore operating at close to an admission number of 225. No evidence has been presented to me that the existing accommodation has had a negative impact on standards and it is evident from the applications data that the school is popular with parents. I have received no objections from neighbouring schools to the school‟s admission number and no other evidence from the Council that number will have a damaging effect on them. I therefore do not uphold the objection. Determination 43. In accordance with section 90 (3) of the School Standards and Framework Act 1998, I partially uphold the objection to the admission arrangements determined by Friesland School. I determine that for admissions in September 2005 oversubscription criteria should now read as follows: The number of intended admissions for the year commencing September 2005 will be 225. The school will initially consider all first choice applications and where applications for admission exceed the number of places available, the following criteria will be applied, in the order set out below: Category 1 Children in public care. Category 2 Children living in the normal area served by the school.
Category 3 Where the child has a brother or sister attending the school at the time of admission. Category 4 Where there are medical grounds (supported by a Doctor‟s Certificate) for admitting the child. The medical grounds must make a case that it is imperative that the child in question attends Friesland School rather than any other school. Category 5 Other children who live outside the normal area served by the school. In the event of over-subscription within any of the above categories applications will be placed in order using distance from the school „as the crow flies‟ with those living nearer to the school being accorded the higher priority. Distance will be measured by Garmin Etrex 12 channel GPS or equivalent or better instrument with the distance being from a set point on the school campus to the front door of the main dwelling house of the applicant. In the event that less than 225 first choice applications are received the Governors will consider all second choice applications and apply the same criteria and separation system as outlined above until 225 places are offered. If 225 is still not exceeded the Governors will consider all third choice applications and apply the same criteria and separation system to determine the hierarchical ranking order. Waiting List Waiting lists will be maintained in accordance with the LEA‟s policy. Dated: 3 December 2004
Signed: Schools Adjudicator: Robert Lanwarne