“It might be best if you looked elsewhere”: the Children’s Commissioner describes the ways schools can deter pupils they don’t want.

Janet Downs's picture
“It might be best if you looked elsewhere”. That’s what one school told a parent of a child with special needs (SEN), said the Children’s Commissioner*.

The Children’s Commissioner heard evidence of how schools deter SEN children and said parents of SEN pupils had been put off from applying for a school place because of “negative messages”.

It wasn’t just parents of SEN children who could be discouraged but less affluent parents too, the Children’s Commissioner found. Many schools required expensive uniform from an exclusive source despite clear guidance from the Department for Education (DfE) to keep uniform costs to a minimum.

The Commissioner discovered schools serving the same neighbourhood could nevertheless have very different intakes. This raised the question whether the admission system was contributing to inequality whereby one school had a disproportionate number of previously high-attaining pupils while another had an intake skewed to the bottom of the ability range.

Schools had duties under the Equality Act 2010 to ensure they did not discriminate against any child because of background, ethnicity, disability or needs. Admission authorities should regularly assess their admission criteria to ensure they meet their legal obligations, the Commissioner recommended.

The law surrounding admissions was ambiguous, the Commissioner said, despite the Schools Admission Code which came into force in 2012. The DfE needed to give clear guidance about what is lawful and unlawful.

If it’s suspected a school’s admission criteria are unlawful, the Office of the Schools Adjudicator (OSA) can only act if it receives a formal complaint. Anyone can complain but it depends on knowing exactly which paragraphs of the Schools Admission Code have been violated. OSA can only intervene if a school’s admission criteria are properly “determined”. By law, all schools should have published their admission criteria by 15 April in the school year before applications are made. That means criteria for 2015/16 should now be on every school’s website to allow formal objections before 30 June 2014.

But not all schools do this – and OSA can’t intervene until they have. Delayed publication could mean it’s too late for formal objections to be lodged. Late referrals can be made after 30 June but OSA may not have time to judge criteria before parents have stated their preferences. This could mean pupils lose out unfairly if parents were deterred from applying because of illegal criteria.

Large-scale, national research was required to investigate the “nature and scale of inequality in admission”, the Commissioner recommended. I would go further. Schools that don’t publish their criteria by 15 April should lose the right in the coming academic year to determine their own criteria – pupils should be allocated according to the system in place for local authority maintained schools. This would prevent schools, intentionally or otherwise, from delaying the publication of criteria until it’s too late for objections or referrals to be made. And if OSA judges a school’s criteria don’t adhere to the Code then the school should be under a legal obligation to publicise the fact immediately. Parents who feel their child has lost out unfairly would then have grounds for appeal.

The Commissioner recommended large-scale, national research to investigate the “nature and scale of inequality in admission”. In the meantime, parents and others should be vigilant in spotting possible violations of the Code and submit a formal objection by 30 June or a referral after that date.

NOTES: The report of the Children’s Commissioner can be downloaded here.

The website for the Office of the Schools Adjudicator is here. Details of how to object are here.

Typical complaints up to April 2014 included:

1Primary schools giving priority to children who’ve attending an attached nursery. This is not allowed.
2Religious criteria going further than is allowed by, for example, giving priority to parents who’d helped out in ways that have nothing to do with worship.
3Having complicated criteria which are not easily understood.
4Asking for supplementary information such as a school report, a full birth certificate or names of both parents. This is not allowed.
5Implying a school has discretion over whether to admit a child with a statement of SEN which names the school. Such SEN pupils must be admitted.
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Beth's picture
Tue, 22/04/2014 - 10:26

Janet there's a breakdown of the complaints against religious criteria here: http://fairadmissions.org.uk/how-religiously-selective-schools-have-been...

Roger Titcombe's picture
Tue, 22/04/2014 - 11:23

Janet - You make it clear that when schools break the Admissions rules and DfE guidance, there is no-one policing the system.

The solution is simple. The appropriate body is certainly Ofsted at the time of inspections. Special inspections should also be triggered by parental complaints.

When was the last time an Ofsted report for an 'Outstanding' school even mentioned the admissions system and whether or not it complies with both the law and DfE guidance? The answer is never, along with mentioning clear evidence of gaming of GCSE results through early entry and teaching to the test. Can an 'Outstanding School' judgement be given to a school that starts KS4 in Y9, routinely enters pupils early and makes the lower half of the ability range take 'vocational alternatives' instead of GCSEs in KS4? You might think not. Is this recommended by DfE and Ofqual? Certainly not.

Then there is the cost of uniform. There is clear DfE guidance. Does Ofsted ever comment? No. Why not? If a school discriminates against poorer families through expensive and exclusive uniform rules then Ofsted should award a 'Requires Improvement' judgement on these grounds alone.

All this is puzzling in view of the interest Ofsted is taking in the Birmingham schools where an 'Islamic takeover' is alleged. I am not aware of any specific laws or DfE guidance on practice about where children should sit in class or the precise brand of religious zealotry that assembly guests may inflict on captive child audiences. There are plenty of accounts of evangelical Christians invited into schools including those with no religious connections. Secular parents have complained to no avail. Ofsted inspections of the Vardy academies never raised any objections so everything must have been alright then.

Don't get me wrong. I am not defending the Islamification of state schools if that is what the investigations reveal. The reason this is so tricky for the government is its open arms, uncritical invitation to all those 'of faith' to get involved with the education of our children.

However, the point I am making here is that Ofsted is very selective about the aspects of schools that it feels it can criticise while turning a blind eye to the areas that Janet raises which are of great concern to parents and in many cased involve the breaking of specific regulations.

Janet Downs's picture
Tue, 22/04/2014 - 12:49

Roger - it was illuminating to discover the school chosen by the Goves for their daughter broke the schools admission code. If the Secretary of State for Education doesn't appear to be bothered then there isn't really much hope for proper regulation of the system. The school also insists on expensive uniform from Peter Jones. The blazer alone starts at £65.

Janet Downs's picture
Tue, 22/04/2014 - 12:53

Roger - re the B'ham schools at the centre of controversy - official reports (Ofsted, EFA) haven't been published. When an unpublished Ofsted report about Oldfield School, Bath, was leaked and published by a children's charity, the BBC warned "its contents cannot be reported for legal reasons" because it had not been officially reported.

But these "legal reasons" haven't stopped the media et al commenting on alleged Ofsted reports into the B'Ham schools and adding more accusations ("there are suggestions that...", "an anonymous letter claims..."). Investigations are ongoing - it would be prudent to wait until reports have been published officially.

NOTE to posters: For legal reasons please don’t discuss, comment on, or reproduce comments from, unpublished Ofsted or EFA reports until they have been published officially.

Roger Titcombe's picture
Tue, 22/04/2014 - 13:42

Janet - You are right. I have been careful not to assume anything about the outcome of the various investigations. Others should do likewise. I hope this does not distract posters from commenting on my main point. Why doesn't Ofsted police the admissions regulations?

Patrick Hadley's picture
Tue, 22/04/2014 - 15:51

The short answer to Roger's question is that Ofsted does not inspect admissions policies because the inspection framework does not allow them. The framework is a legal document which is laid before parliament as a Statutory Instrument by the Secretary of State for Education in accordance with the various education acts.

Gove made significant changes to the framework in 2012. Wilshaw has been reported to planning changes to the way Ofsted undertakes inspections, but he has no authority to do this. He is a civil servant who has to follow the regulations laid down by parliament. Only the Secretary of State can change what Ofsted are allowed to inspect.

Roger Titcombe's picture
Tue, 22/04/2014 - 16:14

Patrick - What if the school's admission policy is legitimate but the school does not follow it? That would appear to be the case in the examples that Janet gives. Surely Ofsted should check that a school is following its own policies and 'Require Improvement' if it is not.

I would not expect Ofsted to inspect school's admission policies. No LA school is likely to have an unacceptable admissions policy. Presumably OSA regulates the admissions policies of Academies and Free Schools. I would like to see LAs inspecting all such policies of schools in their area and making a complaint about unacceptable ones to OSA. Do they do this? If not why not?

However to return to the issue of schools not following their own admissions policy isn't that something Ofsted could investigate if it had the will?

Ofsted is surely there to ensure that schools treat pupils and their parents properly. Surely this also includes protecting parents from having to shell out on unreasonably expensive school uniforms.

Then there is the issue of illegal charging. There was much discussion about this on a recent LSN thread. I have never seen an Ofsted report mention this even though many LSN contributors assert that it is widespread.

Janet Downs's picture
Wed, 23/04/2014 - 07:56

Roger - OSA doesn't regulate the admission policies of academies, free schools or any other type of schools. It only acts if there is an official objection or referral. It is reactive not proactive.

Schools which are their own admission authorities (academies, free schools, VA and foundation schools) can set their own admission criteria. These MUST by law adhere to the Schools Admission Code 2012. In the cases I cite the schools admission criteria did NOT adhere to the Code. They flouted it. They broke the law.

But unless anyone notices a school's admission criteria don't stick to the Code, then no-one will object to them. That means a school could get away with dodgy criteria for years. I think the cases referred to OSA are the tip of a rather grubby iceberg.

So it's not a case of school's ignoring their own criteria, it's a case of schools having criteria which ignore the Code.

Roger Titcombe's picture
Wed, 23/04/2014 - 12:00

Janet - Thank you for correcting my false assumption about Admission policies of schools. It is outrageous that there is no effective regulation. I come back to my suggestion that LAs should inspect the admissions policies of all schools of all types as part of their general safeguarding responsibilities. They should then take what ever action they can to bring offending institutions into compliance by taking cases to OSA and demanding action.

Aggrieved parents should contact their local councillor and ask them to do the same.

Janet Downs's picture
Wed, 23/04/2014 - 15:40

Roger - LAs are in a good position to monitor schools' admission policies. LAs co-ordinate admissions to most of their schools. They do so in accordance with each school's admission policy or the LA policy in the case of LA maintained schools. LAs should, therefore, be aware of any cases where policies don't adhere to the Code. And if they're aware, they should send an objection/referral to OSA.

It's an interesting legal question - are LAs complicit in illegal admission criteria if they award school places using dodgy criteria?

Sarah's picture
Tue, 22/04/2014 - 18:35

Local authorities still have responsibility for ensuring fair admissions and they can and do refer schools to the schools adjudicator if schools which are their own admissions authority have non compliant arrangements. Good ones work with schools in their area to encourage them to comply. And many schools do respond to such encouragement. However the cuts to local authority budgets is making this harder and harder to resource. A new labour government could give greater influence and resource to local authorities to facilitate this work.

Roger Titcombe's picture
Tue, 22/04/2014 - 19:40

Yes Sarah, a number of us are advocating giving LAs or preferably LEAs just such powers and responsibilities.

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