In April 2015 the High Court published its judgment in Governing Body of the London Oratory School v the Schools Adjudicator. The judicial review was brought by the school, a Catholic academy, against several aspects of an overwhelmingly adverse determination by the Schools Adjudicator.
A number of general points arise from the Court’s judgment:
- The Court rejected the school’s argument that feeder schools could be referred to in the oversubscription criteria by a broad descriptive category (e.g. all Catholic primary schools). Instead any feeder schools must be named and be based on transparent and reasonable grounds e.g. because of specific and active curricular or other links.
- If a faith school proposes to deviate from any guidance recommended by its religious authority (as opposed to proposing to do something which is prohibited under the guidance), faith schools should not to be treated as having failed to “have regard” to that guidance if they have reasons for deviating from the guidance which are “clear and proper”.
- Under section 1.9(i) of the Code admission authorities must not give priority in their oversubscription criteria to children on the basis of their own or their parents’ past or current hobbies or activities except that faith schools may take account of religious activities as laid out by their religious authority. This means that the religious authority’s guidance is critical in prescribing what the school can or cannot use as faith-based oversubscription criteria and how any religious or other activities can lawfully be taken into account within the oversubscription criteria.
- Although admission authorities must ensure that their admission arrangements will not unfairly disadvantage, directly or indirectly, any particular racial or social group, such disadvantage may be permissible provided that it is not also unfair.
- Procedural fairness requires that, if the Adjudicator proposes to take account of material or information that he/she has obtained, the school should have a reasonable opportunity to be informed of the gist of this material or information and to make representations accordingly.
- The statutory duty to consult on proposed new admission arrangements can be complemented by the common law duty upon a public authority to act fairly. Consultation is for the benefit of the decision-maker to be better informed and thus enhance the quality of the decision-making as much as it is for the consultee to have the chance to comment on what is proposed. There should be direct consultation with the various interested parties specified in the regulations and set out in the Code and any other parties with a legitimate interest.
Some outstanding questions were remitted to the Schools Adjudicator for further consideration. The Adjudicator found against the school again in a further determination dated 19 June 2015.
Looking forwards, schools will need to remember that the timetable for public consultation and determining admission arrangements for September 2017 has been brought forward as from this year. Governing bodies should review their admission arrangements in early autumn, if not sooner, if they are considering making any changes. We would also recommend that, if your school has not updated its admission arrangements for a few years, it should seriously consider doing so to ensure that they comply with the most recent Code published in December 2014.