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admissions during Covid-19

24 June 2020

Please note: the information contained in this legal update is correct as of the original date of publication

Whilst the Department for Education (DfE) has implemented statutory changes to elements of the frameworks relating to admission appeals, exclusions and special educational needs, there have been no changes relating to the legislation relating to admissions.

In relation to admissions where the child has an Education Health and Care Plan (EHCP), the requirements of the Children & Families Act 2014 and the SEND Code of Practice 2015 will continue to apply to state funded schools. There is still a requirement for the local authority to share the EHCP and appendices with the school through the consultation process and for the school to respond within 15 days to the consultation. The local authority must carefully consider the school’s response before making a decision on whether the school should be named in section one of the EHCP. If that decision is made, schools will be under a legal duty to admit the child and it will be necessary to undertake the risk assessments (as set out within DfE guidance) around whether it is advisable for that child to attend school or stay at home with education being provided through the school’s usual means. Where the school feels that the local authority’s decision is unreasonable, it is open to the school to complain about the decision to the DfE.

At the current time, the requirements of the School Standards and Framework Act 1998, the School Admission Regulations 2012 and the School Admissions Code 2014 will continue to apply in full and as normal to admission practices across all state funded schools. Therefore, as confirmed by paragraph 2.21 of the Admissions Code 2014, a parent can choose to apply for a school at any point during the year. It is for admission authorities, through their admission committees or other delegated arrangements, to determine whether to offer a place at the school as a result of the application or to reject the application. If the latter option is taken, the statutory right of appeal would come into play and if the parents request an appeal it would be heard in line with the amendments to the appeal arrangements set out in the 2020 regulations.

Any request for admission should be determined within a reasonable timescale and the school must provide notification to the local authority of receipt of the appeal and its outcome (paragraph 2.21 of the Code). Admission authorities, where admission services are provided by the third party (such as the local authority), must ensure that any service continues to comply with the requirements of the admissions framework.

Sixth Form Admissions – September 2020

We have had a number of queries arising from the potential impact of the exam grading requirements for this summer’s GCSE exams and the uncertainty around how grades will actually be assessed. This may have an impact on offers for places at sixth form for internal and external applications where the admission arrangements are based on clear minimum grades at GCSE. Where the admission arrangements have clear thresholds based on grades set out within the policy, those grades must be applied as per the policy to all requests for admission. It is an express provision within the School Admissions Code 2014 that any places allocated at a school must be done in line with the published admission policy – see paragraph 2.7 of the School Admissions Code 2014.

Where schools are concerned about the impact of the assessed grades and wish to provide themselves with greater discretion, the only option would appear to be an application to the DfE (for academies) or the Office of the Schools Adjudicator (maintained schools) for a variation of the determined admission arrangements under paragraph 3.6 of the School Admissions Code 2014. Such requests are usually made when they are necessary due to “a major change in circumstances”. It would be for admission authorities to argue that the Covid-19 pandemic and the impact on education of relevant students in year 11 and the uncertainty over grading processes mean that it is necessary for the school to vary its admission arrangements in respect of the minimum entry requirements. Without such a change, and in the absence of any discretion already built into the admission policy at the school, it would leave the school open to challenge if decisions were taken outside of the school’s own admission policy.

The alternative mechanism would be via the admission appeals process. This would involve schools rejecting applications for sixth form entry based on a failure to achieve the relevant grades and then the young person or their parents/designated carer requesting an appeal before the independent appeal panel to argue why a place should be offered. Those appeals would not follow the usual two stage test set out in section three of the School Admission Appeals Code 2012, but would instead be determined on the basis of paragraph 3.17 of the Appeals Code on the basis of whether the school’s decision to refuse was “reasonable” in light of the information available to it. This may be an interesting process where there is evidence to show the teacher assessment of the student was in excess of the grades awarded by the exam board. Would it be irrational or perverse to offer a place on the basis of the information provided by those individuals who actually taught the student during their time at the school? These issues will be difficult for a panel of volunteers to determine and expert advice from a (legally qualified) clerk may well be required for such appeals.

If you receive an admissions appeal and would like to discuss your options with one of our legal experts please contact us.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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