“Nobody who has had any sorts of dealings with educational matters … would wish to undervalue the importance that is placed by parents upon having their child educated at the school that they would prefer. The legislation recognises that, but at the same time has to make provision for that right to be exercised within the constraints of what is practically available.”
“1. Any offer of a place on the grounds of distance must be based on the child’s permanent address. A business address, a childminder’s address or any address, including a family member’s address, other than the child’s permanent home will not be accepted. Proof of address will be sought if there is doubt about the validity of the address given and it may be the subject of further investigation. Temporary addresses will not be used for the purpose of administering applications.”
“Child’s home address To ensure that offers of school places are made correctly and fairly, the Council is committed to following strict address verification procedures. The Council will investigate any applications where there are doubts about the information provided or where information has been received that suggests a fraudulent or misleading application has been made. Before we make our decision as to whether we will accept an address or not, we will consider your circumstances in accordance with the guidance set out below, which should be read in its entirety. As part of the admission process, we will check Council records to confirm that the address you have given in your application is your child’s permanent home address. If there are any doubts about your address details we may request further evidence. It is your responsibility, as the applicant, to provide evidence to support your application. We may seek evidence from Council records, schools or any other source we consider appropriate. The Council may refer cases to the Internal Audit and Investigation Service for further investigation, and may make a home visit. This could lead to legal action. Proof of address In order to prioritise applications correctly, we will verify that home to school distances are being measured using the child’s correct home address. You are not permitted to use a temporary address to secure a school place for your child. This includes a business address, a childminder’s address, or any other address, including that of a family member or friend. The address you give on your application must be the one where your child is living permanently and must be the address where your family normally lives. An application can only be made from a single address and only a single application made for each child. Future addresses cannot be used. This includes a property you own in the area. - If you are connected to more than one address, for example, you own a property and are renting and living in another, we will require further evidence to demonstrate the permanence of the address you are using for your application. - If you rent out property you own or put it up for sale, this does not mean that the property cannot be considered as your family’s home address. … - If you move at any time during the admissions process (the admissions process covers the entire period from submitting your application to your child starting school), you must inform the School Admissions Team as soon as possible and no later than two weeks after your move. You must inform us of the circumstances of your move to ensure that places are offered fairly and correctly. - If you move to a new address and have advised us, once our address verification checks have been made, we will revise your child’s position on the waiting lists for each of the schools that you prefer so that your application is considered correctly following this change of circumstances. … If an offer of a school place is made on the basis of false or misleading information the Council reserves the right to withdraw the offer at any stage during the admission process. The admission process refers to the time from when you submit your application to the time your child starts school. In disputed cases we will make a judgment based on evidence available to us. …”
“For the last 12 years we have been living in a one-bedroom flat …[in Barnes]. As we needed a larger home after our son … was born, we recently moved from there into a cottage [in East Sheen], which is our only address and home. Again, we would be happy to send you the rental agreement of evidence, if required. Please feel free to let me know if you require evidence that we are no longer living [the flat in Barnes], we can also send you a copy of the rental contract for the tenant living there now. We are currently visiting my family in Belgium, but we can provide you with all this information by the end of this week when we are back. Please let us know if this answers your questions fully, and if there are any other points we should be addressing.”
“… Whilst you have retained ownership of your family home … [in] Barnes …, the current rental address [in East Sheen] is considered temporary and will not be used to process your son’s school application. This is because your owned property is considered as your permanent residence where you and your family have been residing for the past twelve years till December 2018. We accept you are currently renting another local address, however, for school admissions purposes [the address in] Barnes is considered your family’s permanent address, to which you can return at any time. As a result, your ties to …., your current rental address, can only be regarded as temporary. Therefore, to process your child’s school application correctly under the home to school distance criterion, we will use [the Barnes address]. We have a duty to follow our published policy as stated pages 22 and 23 of the Admission to Richmond’s Primary Schools 2019 brochure and as such I can only reiterate: If you rent out a property you own or put it up for sale, this does not mean that the property cannot be considered as your family’s home address. In the event that you do not gain an offer at a preferred school, you will have the statutory right of appeal against not being offered a school of preference. …”
“We should also clarify that two years ago, we worked with a Financial Advisor, who advised us to keep the flat as a pension investment. Since then, we decided to rent instead of buy a property, as we cannot afford to buy a larger house in East Sheen at the moment. So with regards to you assessment that we would return to [the flat in Barnes] at any time, we respectfully disagree with this. We chose our tenant precisely because she is looking for a long term rental and have an 18 month agreement in place. This would mean the earliest we could move in the flat would be June 2020. Should [our son] theoretically be accepted into a school in East Sheen, this would be a 30-45 minute bus ride each way. We moved to East Sheen because we want [our son] to go to a local school in walking distance, so that we can drop him off and pick him up by foot every day, and so that he lives in the same neighbourhoods as his school friends.”
“… Your response has demonstrated your intention to buy a new permanent home in East Sheen, and until such time that you complete on a purchase of a new property, we will continue to use [the flat in Barnes] as the address for measuring home to school distance for your son’s school application.”
“As mentioned, we fully appreciate and support the admissions policy. You are right to question families who are moving from one house to a comparable one just to get into a catchment area. In our case, we feel that you are creating a very different outcome [to] that the policy intends. As we have already explained to you, we will not be moving back to our flat in [Barnes]. If therefore our son … is, for example, accepted to Lowther School (as the catchment area may suggest), we would be renting a larger home close to that school as we don’t want to have [our son] spend 30-45 minutes each way every day going to and from school and living far away from his school friends. We therefore would feel discriminated against our choice of living in the borough, as well as our choice to rent. …”
“As explained, the rationale for the policy was driven by a widespread perception that parents were renting properties very close to popular schools to secure an offer of a school place, whilst continuing to own permanent accommodation further away. A considerable number of applicants each year do just that and effectively ask us to trust, or even second-guess, their intentions. In your case you have moved very close to one of Richmond’s most oversubscribed and popular schools, and have asked us to trust that you will not move back to your owned property in Barnes. Your intention appears instead that you will buy a new permanent home in East Sheen when you are able to secure an affordable property; either way, it is clear that your rental of [the house in East Sheen] can only be objectively regarded as a temporary arrangement at this time. …”
“… Even if it is not clear at the moment how long we will have to rent this new home (as you may recall we have signed an agreement for a minimum of a year!) and when we will be able to find another house in this area which we can buy, this new home is still our only home because the life in the flat we own in Barnes ended in December 2018 …”
“Your clients’ assertion that the 18 month tenancy agreement in connection with [the flat in Barnes] provides conclusive proof of permanent resident elsewhere is simply incorrect. The Proposed Defendant is legitimately also entitled to consider that the contractual agreement will have a break clause and can ultimately be rescinded by one or both parties. The Proposed Defendant submits that until such time that a sale occurs in connection with [the flat in Barnes], the subsequent rental of that property can only be considered as a temporary arrangement.”
“This subsection applies to any appeal against a decision made on the ground that prejudice of the kind referred to in section 86(3)(a) would arise as mentioned in subsection (4) of that section.”
“Oversubscription criteria “must be reasonable, clear, objective, procedurally fair, and comply with all relevant legislation, including equalities legislation. Admission authorities must ensure that their arrangements will not disadvantage unfairly, either directly or indirectly, a child from a particular social or racial group, or a child with a disability or special educational needs …”
“It is for admission authorities to formulate their admission arrangements but they must not: a) place any conditions on the consideration of any application other than those in the oversubscription criteria published in their admission arrangements; …”
“1.13 Admission authorities must clearly set out how distance from home to the school will be measured, making clear how the ‘home’ address will be determined and the point in the school from which all distances are measured …”
“… c) children admitted, after initial allocation of places, because of procedural error made by the admission authority or local authority in the original application process; d) children admitted after an independent appeals panel upholds an appeal; …”
“… Admission authorities must not limit the grounds on which appeals can be made.”
“ … Admission authorities must ask appellants whether they intend to call any witnesses or be represented at the hearing.”
“The panel must ensure that the decision is easily comprehensible so that the parties can understand the basis on which the decision was made. The decision letter must contain a summary of relevant factors that were raised by the parties and considered by the panel. It must also give clear reasons for the panel’s decision, including how, and why, any issues of fact or law were decided by the panel during the hearing.”
“3.2 The panel must consider the following matters in relation to each child that is the subject of an appeal: a) whether the admission arrangements (including the area’s co-ordinated admission arrangements) complied with the mandatory requirements of the School Admissions Code and Part 3 of theSchool Standards and Framework Act 1998 ; and b) whether the admission arrangements were correctly and impartially applied in the case in question. 3.3 The panel must then decide whether the admission of additional children 11 would prejudice the provision of efficient education or the efficient use of resources. 3.4 In all cases, the panel must refer to the local authority and the admission authority (if the appeal is for a school that is its own admission authority) any aspects of the admission arrangements that do not comply with admissions law. 3.5 The panel must uphold the appeal at the first stage where: a) it finds that the admission arrangements did not comply with admissions law or had not been correctly and impartially applied, and the child would have been offered a place if the arrangements had complied or had been correctly and impartially applied; or b) it finds that the admission of additional children would not prejudice the provision of efficient education or efficient use of resources. 3.6 However, in multiple appeals where a number of children would have been offered a place, and to admit that number would seriously prejudice the provision of efficient education or efficient use of resources, the panel must proceed to the second stage. 3.7 The panel must proceed to the second stage where: a) it finds that the admission arrangements did comply with admissions law and that they were correctly and impartially applied to the child; or b) it finds that the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that, if they had complied and had been correctly and impartially applied, the child would not have been offered a place; and it finds that the admission of additional children would prejudice the provision of efficient education or efficient use of resources.” a) whether the admission arrangements (including the area’s co-ordinated admission arrangements) complied with the mandatory requirements of the School Admissions Code and Part 3 of theSchool Standards and Framework Act 1998 ; and b) whether the admission arrangements were correctly and impartially applied in the case in question. 3.3 The panel must then decide whether the admission of additional children 11 would prejudice the provision of efficient education or the efficient use of resources. 3.4 In all cases, the panel must refer to the local authority and the admission authority (if the appeal is for a school that is its own admission authority) any aspects of the admission arrangements that do not comply with admissions law. 3.5 The panel must uphold the appeal at the first stage where: a) it finds that the admission arrangements did not comply with admissions law or had not been correctly and impartially applied, and the child would have been offered a place if the arrangements had complied or had been correctly and impartially applied; or b) it finds that the admission of additional children would not prejudice the provision of efficient education or efficient use of resources. 3.6 However, in multiple appeals where a number of children would have been offered a place, and to admit that number would seriously prejudice the provision of efficient education or efficient use of resources, the panel must proceed to the second stage. 3.7 The panel must proceed to the second stage where: a) it finds that the admission arrangements did comply with admissions law and that they were correctly and impartially applied to the child; or b) it finds that the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that, if they had complied and had been correctly and impartially applied, the child would not have been offered a place; and it finds that the admission of additional children would prejudice the provision of efficient education or efficient use of resources.”
“At this stage the characteristics and circumstances of the particular child in question will not, except in extreme cases, be relevant to the question of whether the admission will cause prejudice (R (on the application of M) v Haringey Independent Appeal Panel[2010] EWCA Civ 1103 ).”
“Second stage – balancing the arguments 3.8 The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted to the school. It must take into account the appellant’s reasons for expressing a preference for the school, including what that school can offer the child that the allocated or other schools cannot. If the panel considers that the appellant’s case outweighs the prejudice to the school it must uphold the appeal. 3.9 In multiple appeals, the panel must not compare the individual cases when deciding whether an appellant’s case outweighs the prejudice to the school. However, where the panel finds there are more cases which outweigh prejudice than the school can admit, it must then compare the cases and uphold those with the strongest case for admission. Where a certain number of children could be admitted without causing prejudice, the panel must uphold the appeals of at least that number of children. Consideration of prejudice 3.10 Whilst the panel must take into account the school’s published admission number, the admission authority must be able to demonstrate prejudice over and above the fact that the published number has already been reached 12. The panel must not reassess the capacity of the school, but must consider the impact on the school of admitting additional children. In reaching a decision as to whether or not there would be prejudice the panel may consider the following factors: a) what effect an additional admission would have on the school in the current and following academic years as the year group moves through the school; b) whether any changes have been made to the school’s physical accommodation or organisation since an admission number was originally set for the relevant year group; 13 c) the impact of the locally agreed Fair Access Protocol; d) the impact on the organisation and size of classes, the availability of teaching staff, and the effect on children already at the school.” 3.8 The panel must balance the prejudice to the school against the appellant’s case for the child to be admitted to the school. It must take into account the appellant’s reasons for expressing a preference for the school, including what that school can offer the child that the allocated or other schools cannot. If the panel considers that the appellant’s case outweighs the prejudice to the school it must uphold the appeal. 3.9 In multiple appeals, the panel must not compare the individual cases when deciding whether an appellant’s case outweighs the prejudice to the school. However, where the panel finds there are more cases which outweigh prejudice than the school can admit, it must then compare the cases and uphold those with the strongest case for admission. Where a certain number of children could be admitted without causing prejudice, the panel must uphold the appeals of at least that number of children. 3.10 Whilst the panel must take into account the school’s published admission number, the admission authority must be able to demonstrate prejudice over and above the fact that the published number has already been reached 12. The panel must not reassess the capacity of the school, but must consider the impact on the school of admitting additional children. In reaching a decision as to whether or not there would be prejudice the panel may consider the following factors: a) what effect an additional admission would have on the school in the current and following academic years as the year group moves through the school; b) whether any changes have been made to the school’s physical accommodation or organisation since an admission number was originally set for the relevant year group; 13 c) the impact of the locally agreed Fair Access Protocol; d) the impact on the organisation and size of classes, the availability of teaching staff, and the effect on children already at the school.”
“This section deals only with appeals where an admission authority refuses to admit a child on the grounds that the admission of an additional child would breach the infant class size limit and there are no measures it could take to avoid this without prejudicing the provision of efficient education or efficient use of resources. Decisions on appeals for infant classes where the refusal was for any other reason should be made in accordance with the two stage process in section 3.”
“First stage – examining the decision to refuse admission. 4.4 The panel must consider all the following matters a) Whether the admission of an additional child/additional children would breach the infant class size limit; b) whether the admission arrangements (including the area’s co-ordinated admission arrangements) complied with the mandatory requirements of the School Admissions Code and Part 3 of theSchool Standards and Framework Act 1998 ; and c) whether the admission arrangements were correctly and impartially applied in the case(s) in question; and d) whether the decision to refuse admission was one which a reasonable admission authority would have made in the circumstances of the case. 4.5 The panel must immediately refer to the local authority and the admission authority (if the appeal is for a school that is its own admission authority) any aspects of the admission arrangements it identifies as unlawful. 4.6 The panel may only uphold the appeal at the first stage where: a) it finds that the admission of additional children would not breach the infant class size limit; or b) it finds that the admission arrangements did not comply with admissions law or had not been correctly and impartially applied, and the child would have been offered a place if the arrangements had complied or had been correctly and impartially applied; or c) it finds that the decision to refuse admission was not one which a reasonable admission authority would have made in the circumstances of the case. 4.7 In multiple appeals where a number of children would have been offered a place under paragraph 4.6 above, and to admit that number would seriously prejudice the provision of efficient education or efficient use of resources, the panel must proceed to the second stage. 4.8 The panel must dismiss the appeal at the first stage where: a) it finds that the admission arrangements did comply with admissions law and that they were correctly and impartially applied; or b) it finds that the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that, if they had complied and had been correctly and impartially applied, the child would not have been offered a place; and it finds that the decision to refuse admission was one which a reasonable admission authority could have made. Second stage – comparing cases 4.9 The panel must compare each appellant’s case for their child to be admitted and decide which of them, if any, to uphold. Where the school could admit a certain number of children without breaching the infant class size limit (or without needing to take measures to avoid breaching it that would prejudice the provision of efficient education or efficient use of resources) the panel must uphold the appeals of at least that number of children Consideration of ‘reasonableness” 4.10 The threshold for finding that an admission authority’s decision to refuse admission was not one that a reasonable authority would have made is high. The panel will need to be satisfied that the decision to refuse to admit the child was ‘perverse in the light of the admission arrangements’20 i.e. it was ‘beyond the range of responses open to a reasonable decision maker’ or ‘ a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.21” 4.4 The panel must consider all the following matters a) Whether the admission of an additional child/additional children would breach the infant class size limit; b) whether the admission arrangements (including the area’s co-ordinated admission arrangements) complied with the mandatory requirements of the School Admissions Code and Part 3 of theSchool Standards and Framework Act 1998 ; and c) whether the admission arrangements were correctly and impartially applied in the case(s) in question; and d) whether the decision to refuse admission was one which a reasonable admission authority would have made in the circumstances of the case. 4.5 The panel must immediately refer to the local authority and the admission authority (if the appeal is for a school that is its own admission authority) any aspects of the admission arrangements it identifies as unlawful. 4.6 The panel may only uphold the appeal at the first stage where: a) it finds that the admission of additional children would not breach the infant class size limit; or b) it finds that the admission arrangements did not comply with admissions law or had not been correctly and impartially applied, and the child would have been offered a place if the arrangements had complied or had been correctly and impartially applied; or c) it finds that the decision to refuse admission was not one which a reasonable admission authority would have made in the circumstances of the case. 4.7 In multiple appeals where a number of children would have been offered a place under paragraph 4.6 above, and to admit that number would seriously prejudice the provision of efficient education or efficient use of resources, the panel must proceed to the second stage. 4.8 The panel must dismiss the appeal at the first stage where: a) it finds that the admission arrangements did comply with admissions law and that they were correctly and impartially applied; or b) it finds that the admission arrangements did not comply with admissions law or were not correctly and impartially applied but that, if they had complied and had been correctly and impartially applied, the child would not have been offered a place; and it finds that the decision to refuse admission was one which a reasonable admission authority could have made. 4.9 The panel must compare each appellant’s case for their child to be admitted and decide which of them, if any, to uphold. Where the school could admit a certain number of children without breaching the infant class size limit (or without needing to take measures to avoid breaching it that would prejudice the provision of efficient education or efficient use of resources) the panel must uphold the appeals of at least that number of children 4.10 The threshold for finding that an admission authority’s decision to refuse admission was not one that a reasonable authority would have made is high. The panel will need to be satisfied that the decision to refuse to admit the child was ‘perverse in the light of the admission arrangements’20 i.e. it was ‘beyond the range of responses open to a reasonable decision maker’ or ‘ a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.21”
“4.12 Admission authorities must provide parents with information on the limited circumstances in which an infant class size appeal can be upheld in order that they can make an informed decision about whether to submit an appeal.”
“… Your appeal was for a place in reception, a year group bound by infant class size legislation and a decision making process as set out in Section 4 of the School Admission Appeals Code 2012. However, the Panel noted your argument that the reason to refuse [your son] a place at the School was related to the determination o[f] your address and that, as set out in Section 4.2 of the Code, ‘Decisions on appeal for infant classes where the refusal was for any other reason should be made in accordance with the two stage process in section 3. Whilst the Panel agreed to thissubmission, they were also asked to consider your appeal under Part 4 in the alternative. The Panel therefore considered your appeal in accordance with the decision making process in both Part 3 and Part 4 of the School Admission Appeals Code 2012.”
“c) it decides that the decision to refuse admission was not one which a reasonable admission authority would have made in the circumstances of the case.”
“Where the decision under appeal was made on the ground that [class size prejudice] would arise … an appeal panel shall determine that a place is to be offered to the child only if they are satisfied- (a) that the decision was not one which a reasonable admission authority would make in the circumstances of this case; or (b) that a child would have been offered a place if the admission arrangements (as published under this Act) had been properly implemented.” 205. Buxton LJ stated at paragraph 8 of Bryant: “It will be seen, therefore, that if it is established that the case is one to which class size prejudice applies – and that has to be established by the local authority – the powers of the committee to interfere with any admission decision made in that context by the local education authority are extremely limited. They can only require the place to be offered to the child either if the local education has behaved irrationally; or, secondly, if they are satisfied that, if the published arrangements had been properly implemented, the child would in fact have been offered a place.”
“There is absolutely no reason to go behind that statement and the judge was right not to do so. He was also right to conclude that he should be generally guided in approaching these questions of detail by the observations of Jowitt J, albeit on a different aspect of this matter, in R v Bradford Metropolitan Borough Council ex parte Sikander Ali[1994] ELR 299 in which Jowitt J said (at 308G): “… the application of a criterion involves the making of judgments and there will be questions of degree”
“The position, therefore, is that there is a finding of fact that the appeal panel did understand what the application arrangements required. … With that understanding, the appeal panel were bound to ask themselves whether there was any material upon which they could be satisfied that the arrangements had not been properly implemented. The plan … which was put before the panel in the form of an overhead projection provides no basis for a conclusion that the arrangements were not properly implemented. The pattern displayed by the plan is just the sort of pattern one would expect to find if the arrangements I have described were being implemented correctly. There was no material upon which the panel could have come to a contrary conclusion; and ample material on which they could have reached the conclusion which they did …”
“36. Mr Wise submits that the considerable expertise of the appeal panels is educational rather than legal; that their expertise therefore naturally propels a decision rather than, in the manner appropriate to the Administrative Court, a mere review of reasonableness; and that in this context, the very distinction is elusive. Furthermore, one adverb in para 3.2(a) of the code is very much in Mr Wise’s favour: it is the word ‘correctly’ … which seems to require an intensity of examination more apt to decision than to review. The trouble is that in the subparagraph the code proceeds to deploy two other adverbs … which dilute the force of the word ‘correctly’. For the words ‘properly’ and, in particular, ‘impartially’ suggest a function of review. “36. Mr Wise submits that the considerable expertise of the appeal panels is educational rather than legal; that their expertise therefore naturally propels a decision rather than, in the manner appropriate to the Administrative Court, a mere review of reasonableness; and that in this context, the very distinction is elusive. Furthermore, one adverb in para 3.2(a) of the code is very much in Mr Wise’s favour: it is the word ‘correctly’ … which seems to require an intensity of examination more apt to decision than to review. The trouble is that in the subparagraph the code proceeds to deploy two other adverbs … which dilute the force of the word ‘correctly’. For the words ‘properly’ and, in particular, ‘impartially’ suggest a function of review. 37. In my opinion the function of the panel when considering the second matter at first stage is one of review. I say so for three reasons: (a) The code requires that, at the first stage, the panel should ‘decide’ the third matter but should merely ‘consider’ the first two matters. (b) Its consideration of the second matter is, as Mr Wise concedes, retrospective, namely whether the arrangements were ‘correctly applied’: retrospectivity is inconsistent with a de novo decision. (c) Paragraph 3.2(a) requires that, if satisfied that the arrangements have not been correctly and impartially applied, the panel should proceed to consider ‘whether the child would have been offered a place had the arrangements been properly applied; in my view Mr Hyams is right to submit that this contingent issue for consideration by the panel would never arise were its function to take the decision for itself. 38. Some issues raised before a panel in relation to the second matter at the first stage will be such as to render the distinction between review and decision academic. They will be black-andwhite issues such as whether the local educational authority wrongly measured the distance between the school and the child’s home. The distinction will be relevant only to circumstances in which the admission criteria in play required the authority to exercise judgment, such as indeed whether the child had an exceptional medical, social or educational need for a place at a particular school. In such circumstances its function of review requires the panel to ask itself only whether the negative conclusion of the authority was reasonable. I do not accept that such is – in principle – a difficult question for it to determine even though its expertise lies outside the law. Indeed, in the different context of an appeal against a refusal to admit an infant to a particular class in the light of its existing size, such is precisely one of the questions which it is or may be required to answer.”