QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
Wandsworth London Borough Council
|- and -
|The Schools Adjudicator
Eleanor Grey (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 19th November 2003
Crown Copyright ©
Mr Justice Goldring :
"(1) Where at the beginning of the 1997-98 school year the admission arrangements for a maintained school made provision for selection by ability…the admission arrangements for the school may continue to make such provision…"
"The admission authority for a maintained school shall, before the beginning of each school year, determine…the admission arrangements which are to apply for that year."
"the arrangements for the admission of pupils to the school including the school's admission policy."
(a) admission arrangements have been determined by an admission authority…but
(b) any parent…wishes to make an objection about those arrangements…
(c) …that person may refer the objection to the adjudicator.
(3) On a reference…the adjudicator shall either
(a) decide whether, and if so, to what extent the objection should be upheld…
(6) Where the adjudicator…decides that an objection referred to him…should be upheld to any extent, his decision on the objection may specify the modifications that are to be made to the admissions arrangements in question.
(7)…the adjudicator…shall publish his decision on the objection and the reasons for it.
(8) The decision…on the objection shall…be binding…"
"…the Adjudicator may determine that an Admission Authority seeking to continue to make provision for partial selection should cease to do so…Adjudicators may uphold, reject or partially uphold objections and may make modifications to admissions arrangements beyond those suggested by the objectors. "
"…not less than 10 parents [must] have referred objections…which-
(a) are about the same admission arrangements; and(b) raise the same or substantially the same issue."
"We, the undersigned parents of primary school-age children living within the relevant area…wish to object to the admission arrangements recently published in the local press by [GS], [BS] and [EBC]…for the year 2004/5.
We believe that the current rules of partial selection by ability in [the above] schools work against the interests of most parents and children in our local community in or near North Battersea for the following reasons:
1. The current rules ensure that these schools recruit as least one third of top ability children, but not in equal proportions of average and below average ability children. This creates an unfair balance in the intake left available for other schools in Wandsworth, including the Battersea area, which cannot achieve a balanced intake.2. We believe that partial selection…is directly damaging our local secondary school, Battersea Technical College ["BTC"], which has become the last choice for parents in the borough, even for those who live nearby. Because of budgetary constraints, BTC is then forced to take a greater proportion of hard to teach children than any other school in the borough.3. For many of us, for whom the choice is even more restricted because we cannot afford the transport to alternative schools, sending our children somewhere else is not an option. We object to selection by ability in other schools in the borough because it exacerbates the difficulties that our local secondary school [BTC] already faces in a deprived area, where more than 55% of pupils qualify for free school meals.4. The current rules of admission have, over time, created a hierarchy of schools and [BTC] is perceived to be at the bottom…We believe this situation will not change unless the current rules for admission for [GS, BS and EBC] are changed.5. We request that the current selection rules, which concern themselves only with high-achieving pupils, should be replaced by a fair banding system which takes account of all children in the area."
- The high levels of ability in…[GS] 30%; [BS] 31% (sic); [EBC] 33% benefits the schools because they can select more than their fair share of high achieving children, even from other boroughs, in order to obtain better A-C results. This aggressive competition means that:
- Thousands of local children of average or below average ability who happen not to live immediately adjacent to these schools face rejection from several schools and are made to feel failures…
- While high achieving children may receive several offers of places, many…apply for five or six schools and receive no offers initially then having to remain on waiting lists for months [which] causes great stress…
- Non-selective schools are made to appear "less desirable", increasing the level of stress and disappointment when places are not offered at the school of their choice."
The responses to the objections
"On this analysis it is apparent that any policy of partial selection has not resulted in an unduly "advantaged" intake cohort…
The above evidence shows that neither in terms of social mix…nor achievement of its intake has a policy of partial selection acted to create a particularly advantaged situation for the school or had any distorting effect on the intake locally. Indeed in aggregate there is no marked variation in social composition and achievement levels at [EBC] when compared to other schools operating in similar settings but without partial selection…highlighting that [EBC's] intake has been and remains wholly representative of the community within which it is set."
"It is to the cumulative impact of the three schools' admission arrangements that the parents make objection, with all objectors citing all three schools. However natural justice would dictate that each school is deserving of detailed consideration of their own individual circumstances…"
"The objectors contend that by operating a policy of partial selection by ability [the schools] work against the interests of parents and children in the local community in or near North Battersea. They cite their reasons for objection as:
- That as a consequence (my emphasis) of the…schools admitting disproportionately large numbers of high ability children, other local schools in Wandsworth and Battersea in particular are unable to achieve a balanced intake.
- That this process has, over time, created a hierarchy of schools in the eyes of parents seeking a secondary school for their child.
- That this has been particularly damaging to [BTC], which is located in an area of high social deprivation (55%…qualify for free school meals) and become last choice for the Borough, even those who live nearby. The result being budgetary shortfalls and a greater proportion of hard to teach children than other schools in the Borough
- This is unfair for those parents and children living in the area who face an unnecessarily complex and distressing secondary admissions process, and particularly discriminates against those who are unable to provide transport to alternative schools.
As a final point, some of the objectors make an additional request that the schools should be required to replace…partial selection by one of a fair banding system…"
"I note the objectors raise three separate but related issues. The first relates to the impact of partial selection by the…schools…upon other schools, particularly [BTC]. The second relates to the impact upon parents living in parts of Battersea (all objectors live in SW11), for some of whom obtaining a place at any of their preferred schools would appear difficult. Finally, for those parents whose children attend BTC the quality of provision suffers unnecessarily from the creaming off of more able pupils.
In considering these issues it is important first to determine if schools in Wandsworth do have unbalanced intakes and if this is a particular problem for BTC. Secondly, what is the availability of places for children from the Battersea area? Finally, a review of the structure of pupil intakes for each of the three partially selective schools' permits (sic) an assessment to be made of the likely impact of any changes upon the general pattern admissions (sic). In coming to my conclusions I have also considered a number of other factors, among which have been the broader implications for parental choice and the possible impact upon academic standards. "
"…no correlation between its GCSE results and changing patterns of behaviour in other local schools…this is because the location of BTC means that its natural catchment area draws upon primary schools in several neighbouring LEAs…More generally they suggest that should the three schools subject to the current objection be forced to replace the number of pupils they currently admit by selection using other criteria, primarily geographic proximity, the result would be a change from selection by ability to selection on socio-economic grounds, namely the ability to afford local housing…a less desirable outcome.
The LEA provides evidence to suggest the success of its policy…as part of a policy to offer plurality of choice to parents and children…it highlights the change from the availability of surplus places…in the early 1990s, to current high levels of popularity and over subscription
[And] states that only 10.7% of admissions are made on the basis of selection by ability across the LEA…and that only a small number of such pupils are admitted to [GS], [BS] and [EBC] from the area local to BTC."
"The evidence [submitted to him] tends to confirm concerns expressed by the objectors regarding an unequal spread of the more able and less able pupils across the borough's schools."
"…whilst schools may have an issue relating to the academic mix of their intakes, other than for BTC it does not seem to have constrained their popularity. The resulting problem for parents [in SW11] in securing a preferred school place for their child therefore relates to a general deficit of places at popular schools and a lack of willingness to consider BTC."
"Against this background I have considered the intake data for each of the three schools in order to resolve two questions. Firstly, is the result of [the schools'] current admissions policy an intake that is significantly imbalanced in favour of high ability children? Secondly, where are children of higher ability travelling from to attend the school?"
"These intake measures were not significantly out of line with those at Wandsworth schools operating fair banding systems for admissions. The school's intake also includes a much greater proportion of pupils from ethnic minorities than most other Wandsworth schools, including BTC."
"could be considered a realistic alternative on grounds of geographic proximity, including 7 living in SW11 postcodes. Adding the number of non-selective admissions…from these same…schools, presumably…mainly…siblings of current [high ability] pupils…we might estimate that approximately 25 pupils per year attend [EBC] who otherwise might consider BTC or other local schools as an alternative, of which a minimum of two-thirds [the 16 on ability] would score highly in the Wandsworth "test"."
"The high levels of over-subscription at many Wandsworth schools would then help create a "ripple" effect, whereby [GS], [BS] and [EBC] would enrol a greater number of local children and those displaced would apply in turn to their own nearest school. As they would generally enter one of the higher bands, they would displace other able pupils [because of admission by fair banding]. The cumulative effect would be to "push" the able pupils outwards from South Wandsworth, including in the direction of BTC and other less popular schools.
However, this also assumes that a parent of an able child thus denied access to one of the [three] schools would then place their child at a non-selective school, including BTC. This has not been the case in the past. The difficulties of BTC existed prior to the introduction of partial selection. High levels of cross-border transfers and participation in private education also have a long history."
"Firstly, many out of area children, whose parents clearly feel they benefit from attending one of the [three] schools would no longer be eligible for admission unless they [moved]…Secondly, it is unlikely that any child living in the north of the borough would obtain a place at one of the [three]…schools [which are in the south east]. Thirdly, it is possible that as a result of a greater proportion of local children gaining a place at one of the three schools, places [taken by local children] would become available at other schools, including those in the northern part of [Lewisham]…"
"Any assumption that the enforced injection of a small number of able children will, in some way of itself, [act] as a catalyst to promote greater performance in a school with a history of weakness and low pupil attainment offers a rather naïve view of those factors contributing to successful schools."
"There is some evidence that BTC has suffered by comparison with other local schools for many years and has actually improved its performance and reduced surplus capacity since the introduction of partial selection elsewhere in the LEA."
"All three of the…schools consistently out perform BTC and other non-selective schools in the league tables. At two of the…schools, [BS] and [EBC], recent OFSTED have stated that selection is not the main driver of academic standards, and therefore one might question if partial selection is a necessary component of their admissions arrangements. Indeed academic performance at [EBC] is not as strong as the other two schools and the same claims for importance of selection…is not being made…An examination of intake data…suggests that even with its current level of partial selection, the school is not recruiting a profile of pupils, either academically or in terms of social deprivation, significantly different from [BTC] and in all respects well below average for the borough. It could be argued that the removal of its partial selection policy would impact negatively on its ability to maintain even this level of performance."
"…I am persuaded on a number of points made by the objectors, namely
- That [BTC] does suffer from a significantly unbalanced intake in terms of academic ability and social deprivation.
- That parents and children living in Battersea…have a much lower likelihood of gaining a place for their child at those schools with the highest levels of pupil attainment.
- That [GS] and [BS] recruit pupils more academically able than the average for schools in the borough, and that [EBC] recruits a more academically able profile of pupils via partial selection than would otherwise be the case.
- Finally I am persuaded that in the absence of partial selection [the three schools] would each admit a lower number of more able pupils, which would potentially make an increased number of such pupils available for recruitment by other local schools. As one Wandsworth school with surplus places [BTC] should be in a position to benefit.
I sympathise with the view of the objectors that there is a significant difference between the partially selective schools, [GS] and [BS] in particular and the non-selective schools, [BTC] in particular in terms of the measures of academic ability and social deprivation within their intakes. Whilst there will always be some schools that remain more popular than others, they should be able to operate on as level a playing field as it is possible to create.
Legislation permits schools to admit a proportion of their intake on the basis of ability and I am not persuaded that the existence of partial selection per se at the three schools is sufficient (sic) and primary cause of any unfairness that might result to parents and children in the SW11 area. Indeed there are strong reasons to believe that the complete elimination of partial selection at these schools would act to reduce some elements of parental choice in SW11…However, whilst I am not in a position to estimate the precise number of more able pupils that might eventually be admitted into currently less popular schools, I am in no doubt that some reduction in the proportion of pupils selected by ability at [GS] and [BS] in particular would create a more conducive environment within which schools such as BTC might operate. Their ability to benefit from it will be a product of their own abilities and support form the LEA."
"Therefore I conclude that [GS], [BS] and [EBC] should be allowed to retain their arrangements for partial selection by ability. However, a broader group of parents and children would gain from a reduction in the proportions currently admitted on this basis, and I am persuaded therefore to uphold the objection in so much that I reduce the proportion of children selected by ability to each school. I have concluded that a figure of 25% would be the optimum balance of interests for [GS] and [BS]. I am persuaded that such a reduction for [EBC] would lead to a more problematic situation for the school in maintaining its overall profile in terms both of intakes and attainment. Therefore I propose to require [EBC] to reduce its proportion of selective places to 30%."
Factual errors in the Determination
Miss Laing's fundamental submission
"80. What is objected to is the selection arrangements and that is all that is objected to. That is therefore…a prescription of what the Adjudicator can consider…what he could not do was to consider more widely and to have a look at the whole of the admission arrangements, including siblings…"
Miss Laing's further submissions
"Whilst it may seem harsh for some parents to lose real benefit, without any quantifiable countervailing benefit to other groups of parents being found, it is not an irrational remedy."
The Defendant's witness statements