article
By any means necessary
12 March 2010
As the latest round of admissions appeals kicks off, a
significant number of school places will have been incorrectly
allocated on the basis of fraudulent applications. Indeed it seems
likely that, with interest in obtaining maintained sector school
places increasing as a result of the effects of the recession on
the ability of some parents to meet independent school fees, there
may be a higher incidence of fraud this year than ever before.
Scale aside, the nature of the problem is also better understood
than ever before. In November 2009, the Chief Schools’ Adjudicator
furnished us all with a list of the many, and sometimes bizarre,
methods used by some parents to cheat their way into preferred
schools by passing off a temporary address and move as genuine.
More recently it has come to light that the British do not have a
monopoly on sophisticated collusion to achieve school places. The
Spanish system has attempted to deal with social disadvantage by
giving extra points to the children of divorced parents. The public
response has been a marked increase in some areas of parents trying
to get divorced before the deadline for school applications.
With information to hand as to the types of fraudulent methods
adopted by parents admissions authorities have been making a
renewed effort this admissions round to smoke out cheating parents.
Regrettably for all their increased vigilance, attempts to
crackdown on this cheating have been seriously undermined by the
continuing lack of any proper legal sanctions. Both the existing
Code of Practice and criminal law have been weak reeds.
The Admissions Code of Practice provides only that in certain
circumstances, it is permissible for a school place to be withdrawn
if it can be shown that that place was obtained fraudulently.
However, whether a school should, in fact, take this step is said
to depend upon the length of time that the child has been at the
school at the point at which it is established that the place was
fraudulently obtained. The implication of the Code of Practice is
that the longer the period of time that has elapsed since the pupil
joined the school, the less likely it will be a reasonable course
of action on the part of the school to withdraw that place. In
short, under the Code parents have nothing to lose by lying as the
action allowed only puts them back in the position that they were
in already.
In terms of sanctions derived from the criminal law, it is not a
criminal offence in education legislation to give false information
in order to gain a school place. However, until last summer there
existed the possibility that a parent who made a fraudulent
admission might be commissioning a criminal offence under section
two of the Fraud Act 2006, fraud by false representation.
In May 2009 Harrow Council started a prosecution against a
mother for allegedly lying about her address in order to gain a
school place for her five year old son, the first such prosecution.
Harrow’s primary objective may have been for the case to provide a
suitable deterrent to others thinking of abusing the school
application system. Unfortunately, in July the case collapsed over
Harrow’s concerns that they could not make out the relevant test
under the Fraud Act by demonstrating a ‘gain’ and a ‘loss’ when
these were defined as money or property. The failure of this case
in effect gave parents the green light to "play the system" and has
probably led to even more brazen cheating in this admissions
round.
Yet the government’s response has been muddled. Shortly after
the Harrow case Ed Balls commissioned the Chief Schools Adjudicator
to comment on whether existing powers were sufficient to deter
fraudulent behaviour on the part of parents. Dr Ian Craig was of
the preliminary view that additional disincentives were required
and he was then asked to draw up a list of suggested new powers to
clampdown on the problem. His follow up report has just been
published.
In that report Dr Craig estimates that 4,200 fraudulent
applications were made last year of which only 1,400 were
identified cases. His recommendations include a number of measures
that are designed to increase the number of fraudulent applications
that are identified. One recommendation is that local authorities
should be encouraged to publicise a “whistle-blowing” telephone
number and should routinely check, as a minimum, a random 10 per
cent sample of applications.
However, Ed Balls had previously made it clear that he does not
think it appropriate to blame parents for seeking the best school
places for their children, at least not to the extent of their
being made the subject of criminal prosecutions. As a consequence
Dr Craig’s latest report take things little further forward in
terms of actual sanctions for those parents who are identified as
having made a fraudulent application. His recommendation is simply
that the Code of Practice be strengthened to require admissions
authorities to withdraw places wherever deception has been proved.
It was probably too much to hope that in the run up to a General
Election there would be genuine government appetite for seeking to
restore integrity to the admissions system and benefitting the
majority who play by the rules.
This article was first published by Local Government
Lawyer
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