Wandsworth London Borough Council, R (on the application of) v The Schools Adjudicator

The Claimant, as the admissions authority for Ernest Bevin College (“EBC), a boys’ community school (secondary school) in its area, seeks permission and an order to quash the decision of the Defendant in respect of a determination made by him on 8 August 2003. In his determination the Defendant was considering objections to the selective admissions policies operated by EBC and two other schools in the borough, Graveney School (“GS”), a mixed foundation school, the First Interested Party and Burntwood School (“BS”), a girls’ foundation school, the Second Interested Party. He upheld the objections in part and decided that each of the admissions authorities should reduce the percentage of pupils to be selected on the basis of academic ability at each school. In EBC’s case, he reduced the percentage from 33% to 30%.

For reasons which will become clear, I grant permission.

By section 100 of the School Standards and Framework Act 1998 (“the Act”),

By section 89(1) of the Act,

It is agreed the Claimant is the admission authority for EBC. “Admission arrangements” are defined in section 88(2) as,

By section 90(2),

admission arrangements have been determined by an admission authority…but

any parent…wishes to make an objection about those arrangements…

…that person may refer the objection to the adjudicator.

There is a Code of Practice concerning admissions. Paragraph 4.13 states,

The Education (Objection to Admission Arrangements) Regulations 1999 are also relevant. Regulation 6 deals with the condition to be met before there can be consideration by the Adjudicator. By 6(2)

Regulation 9 limits the number of later objections in following school years. If an objection has been decided by an adjudicator, no subsequent objection may be referred about those arrangements, or the arrangements for that school for the next following school year.

A summary of the facts

Partial selection on the basis of ability was introduced for the Interested Parties in 1995. It was introduced for EBC in 1996. At GS the number of such pupils was 125, 50% of the intake: at BS 90, 32% of the intake and at EBC 90, 50% of the intake. There were objections from the governing body of a junior school to partial selection for all three schools in 1999. An adjudicator’s decision to reduce the proportion of selective places in each school was quashed by the Court. Objections from the same body were received in 2000. In respect of GS and EBC respectively an adjudicator reduced the number of selected pupils to 75 or 30% and 45 or 33%. BS was unchanged. In May 2002 objections were received in respect of GS from the parents who lived in the area. The adjudicator, who was the Defendant, did not uphold the objections.

Ability is determined by the results of the Wandsworth Year 6 Test. Although expressed slightly differently in each case, the balance of admissions (which in each case of course is the majority) is allocated in the following order: any applicant who has a sibling at the school and is not admitted as a result of selection, special medical or social grounds and finally, children who live nearest.

In May 2003 34 parents of children who lived in North Battersea objected to the admissions arrangements. Each objection was not in identical terms. One example is in the following terms.

Not all the objections referred to fair banding. A fair banding system is one by which pupils are admitted in a range of ability bands which reflects the range of applicants to that school (see section 101 of the Act). It applies to some (although not all) of the non-selective schools in Wandsworth. If there are too many applications for places at such a school, applicants within a band are chosen in the order first of those who have siblings in the school and second, by the proximity of the school to their home. Fair banding does not apply to BTC.

Another example of the objections is in the following terms:

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.”

Whatever gloss is put on the objections, it is clear they concern the area of North Battersea and the position of BTC. It is agreed that BTC has significant problems. It has surplus places when other schools (selective or not) in Wandsworth are “significantly oversubscribed”: see page 13 of the Determination. It has recently been placed in special measures by Ofsted.

Each of the schools put in a response for the Defendant. That of the Claimant in respect of EBC contained an analysis of the intake at the school. It revealed, among other things, that the free school meal intake was “considerably higher” than the Borough average, as was its proportion of bilingual pupils. The assessments for its intake revealed it was slightly below the Borough average and “notably below” three other schools not operating a policy of partial selection. It suggested,

The Defendant stated that

He summarised the objections in the following terms.

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.

Under the heading “Consideration of Factors” he again refers to the nature of the objections.

Miss Laing submits that the substance of the objections is clear and is reflected in the Defendant’s summary of them. He rightly understood the fundamental objection to be the consequences, particularly on BTC, of the unbalanced intake into the selective schools. She goes on to submit, that if the Defendant, in respect of EBC concluded there was no such lack of balance in intake, then the substance of the objection, at least insofar as EBC is concerned, cannot as a matter of logic, succeed. Miss Grey on behalf of the Defendant submits that in fact the substance of the objections was wider. The parents’ objections quoted in paragraph 4 suggest that. It was effectively to selection by the three schools on ability. The question of balance of intake was but one part of that. Some of the other comments of the Defendant indicate he understood them in that way.

It seems to me the substance of the objection was correctly set out by the Defendant in the quotation set out in paragraph 18 above. That was whichever type of parents’ objections are relied upon. At the heart of what the parents are saying is this. BTC loses out because the three schools together disproportionately recruit top ability children. That disproportionate intake of top ability children means there are fewer such children available for other schools in Wandsworth, particularly BTC. BTC cannot achieve a balanced intake. A more balanced intake into the schools will result in a more balanced intake for BTC. Its standards will therefore improve.

The Defendant summarised the schools’ responses. He referred to EBC’s contention that its intake was wholly representative of the community in which it was set (see paragraph 16 above). He referred too to an acceptance that BTC’s performance was poor, and a contention that there was

The Defendant accepted that,

He considered the “implications for parents and children living in SW11.” He observed that given there is a surplus of places at BTC and local parents are failing to gain entry to their preferred school, BTC cannot be high on their list.

In other words, other non-selective schools are popular and oversubscribed. The problem is with BTC.

He went on to consider the “effect of a policy of partial selection upon local parents and children, and other schools.” He commented upon the wide range of available local schools. He observed that a pattern of admission on the basis of living locally will be distorted by selection on ability, although selection offered parents “plurality of choice.” In dealing with the percentage of selected pupils at BS, he mistakenly referred to 30% instead of 32%. He wrongly recorded the percentage had been reduced when it had not.

He set out two questions.

He analysed the intake of EBC for September 2002. In terms of English, Maths and Science it was below the borough average. The Abstract Reasoning Standardised Score was “significantly below the borough average.” Its social deprivation was “well above” the borough average although its number of pupils with a statement of educational needs was “somewhat lower than average.”

In short therefore, the Defendant did not in respect of EBC find a significant imbalance in favour of high ability children. Fair banding would not make any significant difference. His findings confirmed what the Claimant was saying in its response to the objections.

He then considered his second question: where the children of higher ability came from.

Of the 60 higher ability entrants to EBC in September 2003, 16 attended a primary school for which BTC

He went on to consider the same two questions as far GS and BS are concerned. Their intake comprised the most able in the borough with below average social deprivation. Only 10 pupils in each case lived in SW11: 30 to 40 originated from primary schools “at least equidistant to BTC.”

He considered the effect of an end to partial selection and compared it with selection by proximity to the three schools, taking into account the siblings of those selected on ability. He said that such kinds of calculations “are fraught with difficulties.” He concluded that it “is not unreasonable to assume” that there were 90 to 100 pupils enrolled annually at the three schools from whom other schools located reasonably close to Battersea, primarily BTC, “would be a realistic alternative in terms of proximity to their home…probably at least half would be likely to score highly in the Wandsworth admission test.

The Defendant then advanced the “ripple effect.”

He set out the “likely actual result” of an end to partial selection.

He goes on to say that that some of the more able pupils and their siblings currently attending schools in the North would seek a place at their most popular local school. While this may benefit schools well placed to absorb more able children

In short, the Defendant is saying that it is naïve to believe that the injection of some 90 to 100 more able children (as a result of the ripple effect) will on its own improve BTC’s performance, given its history.

As to parental choice, he states that some parents living in Battersea are likely to gain greater choice in that their local school may benefit from improved standards and be more attractive to children. Parents local to the three schools would have greater choice. A wider range of parents would loose choice because of the disappearance of selection. That would probably end any possibility of children in SW11 going to a school with currently the highest level of pupil attainment.

The Defendant considered the “likely impact on academic standards.” Among other things, he states that

There is some controversy about the next part.

In other words, the Defendant is saying that in terms of intake EBC and BTC are not significantly different. To deprive EBC of those selected on ability would arguably have a negative impact on its performance.

The Defendant considers the other two schools. Finally he sets out his conclusion.

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.

He makes the observation that fair banding might not affect the intake of pupils at schools such as GS and BS. For their popularity might result in as high a proportion of able pupils as selection.

He then states,

The consequence for EBC was a reduction of selective places for 6 pupils.

I shall deal with this aspect first. There are a number of admitted errors of fact in the Determination. The Defendant stated that BS selected 30% of children on ability instead of 32%. Throughout the Determination Lewisham and Lambeth were confused (an error that persisted after proceedings were brought and the error mentioned). These are put down to typing errors. I shall regard them accordingly.

The Defendant referred to OFSTED stating that selection is not the main driver of academic standards at EBC and BS (see paragraph 40 above). In his first witness statement he said that he accepted OFSTED’s finding that EBC’s higher academic standards were not achieved solely as function of selective intake but reflected good teaching. In fact, OFSTED did not state that selection was not the main driver of academic standards, although it did state that performance was not related to ability on intake as far as BS was concerned. To the extent the Defendant was in error, I do not regard it as important.

There is a further error alleged by Miss Laing. The Defendant states that all three schools “consistently outperform” both BTC and other non selective schools in the league tables. The tables for 1998-2001 show this is wrong, in respect of EBC. It is true for 2002. It is wrong to state that there was a “consistent” out-performance of other schools by EBC.”

Miss Laing submits that in carrying out such a fine balancing act as he claims to have done, it is vitally important the Defendant gets his facts right. She particularly relies on the last two errors. She submits the Defendant was wrong about the academic standards of EBC. He expressly took them into account when considering the appropriate reduction in selective places at EBC. Those errors render his decision on that reduction flawed.

While I agree that it is vitally important that the Defendant gets his facts right, and he has not throughout done so, the errors are not such in my view as to render the Determination flawed.

Miss Laing’s fundamental submission is that once the Defendant found that EBC’s intake (unlike GS’ and BS’) was not out of line with BTC’s, the objections as far as EBC is concerned had failed. The primary basis of her submission is jurisdiction: given the nature of the objection, the Defendant had no jurisdiction to consider another objection which had not been made. That is what he did. The crucial aspect of the objections was the parents’ contention, as summarised by the Defendant, that the three schools admitted a disproportionately high number of able pupils which led to disadvantage to BTC and its parents. That contention failed in respect of EBC. That was an end to the objection as far EBC was concerned. When the Defendant found that EBC recruited a more academically able profile “than would otherwise be the case” he was going outside the terms of the objection. He had no jurisdiction to do so. Miss Laing submits that the terms of section 90(3) make clear the limits the Adjudicator has. She also relies on some observations made by Collins J in The Queen on the Application of Watford Grammar School for Girls and Another v The Adjudicator for Schools CO/4304/2003. In that case, on different facts, the issue arose as to the adjudicator’s consideration of an objection. In the course of a judgment quashing the decision, Collins J said this,

Miss Grey submits that the Defendant plainly had the jurisdiction to make the finding he did about EBC and to consider its consequences. The wording of paragraph 4.13 of the Code of Practice is wide. There is she submits a distinction between the objection and the grounds or reasons for making it. Here, the objection was to an admissions criterion. Subject to the normal criteria of fairness, the Defendant was entitled to consider the appropriateness or fairness of it in the round. He was not limited to the specific grounds advanced by the objectors. That she submitted followed from the wording of section 90(3)(a). She also relies on the extent of the wide and original discretion which the adjudicator, an expert in matters of education, has: see the observations of Latham J in R v the Schools Adjudicator, ex parte Wirral (No 1) [2000] ELR 2620.

In my view, it is vitally important in these matters not to become over legalistic. The objectors are lay people. They cannot be expected to advance objections which are then to be considered by someone who is not a lawyer, the adjudicator, in a manner akin to a pleading. In each case the Adjudicator is entitled to consider the substance of the objection. I agree with the observations of Collins J when he speaks of the objection being the prescription for the adjudicator’s consideration. Where in any particular case the line is to be drawn will depend very much of the nature of the objection and the facts in that case.

Here, I agree with Ms Laing’s submission that the kernel of the objections was the disproportionately high number of able pupils admitted to the three schools which led to disadvantage to BTC and its parents. As far as EBC was concerned, that contention failed. That could arguably have implications on the basis of natural justice. It may have implications on the merits of the objections as far as EBC is concerned and on the rationality of the Defendant’s decision. However, on the facts of this case, I do not accept that the Defendant did not have the jurisdiction to consider the implications of a finding that EBC “recruits a more academically able profile than would otherwise be the case.” Such consideration was within the substance of the objections to partial selection.

The Defendant and the Claimant had the same understanding of what was at the kernel of these objections, namely the unbalanced intake into the three schools affecting the balance of intake into BTC and causing unfairness to the parents of SW11. That is why the Defendant summarised the objections as he did. The Defendant knew that was the Claimant’s understanding because its response to the objections made that plain. As far as EBC is concerned, the Defendant found that the objectors were wrong and failed in their main contention. What the Claimant had said in its response to the objections was right and succeeded.

Having rejected the kernel of the objections, the Defendant proceeded to consider EBC’s position on a quite different basis. Before doing so, he did not invite any views from the Claimant regarding the possible implications of such consideration and without having any observations from the Claimant, he decided upon a 3% reduction in EBC’s selective intake. Miss Laing submits that natural justice demands that they be invited to consider the implications of the Defendant’s finding regarding EBC. While I have some sympathy with Miss Laing’s submission, I can see no point in the Defendant extending such an invitation to the Claimant. It is clear what its response would have been. There was little it could add to what it had already said.

Miss Laing submits there are further respects in which this determination is flawed.

The Defendant, having referred to statute permitting selection to exist, states that he was not persuaded that “the existence of partial selection per se at the three schools is [a] sufficient and primary cause of any unfairness…Indeed there are strong reasons to believe that the complete elimination of partial selection…would…reduce parental choice [see paragraph 42 above].” Miss Laing submits, in my view rightly, that that must be read in the light of his earlier observations to the effect that except for BTC, other non-selective schools in Wandsworth are over subscribed; that the problem for parents in North Battersea is a shortage of places in preferred schools and a lack of willingness to consider BTC (see paragraph 15 above).

What the Defendant is saying is that partial selection is not a sufficient or primary cause of any unfairness in the Borough: that BTC’s unpopularity and over subscription is. I cannot accept, as Miss Grey submits, that the Defendant when referring to partial selection in the terms he did was not referring to the borough but to forms of admissions permitted by statute.

Miss Laing submits those findings mean the objections fail. The Defendant should have stopped there. Miss Grey does not accept that. She submits that the fact partial selection is not a sufficient or primary cause of any unfairness does not as a matter of language or analysis or judgment mean it is irrelevant or has no causal impact.

Not without hesitation, I am prepared to accept that the Defendant was not intending to say that partial selection at the three schools played no part at all in the unfairness which he had identified. He is saying it was of little importance: in particular of insufficient importance to warrant abolishing it altogether.

Miss Laing’s submissions do not stop there. Having decided, she submits, there was no justification for abolishing selection altogether, the Defendant tinkered at the margins. That cannot be logically justified. The speculative and tiny benefits brought about by total abolition must be even more unlikely and smaller if what is done is to reduce, by a small percentage, the numbers of children selected on the basis of ability, she submits. As far as EBC is concerned, the remedy to correct such unfairness as the Defendant found, was neither rationally capable of correcting it nor supported by any coherent reasoning process.

Miss Grey submits it is important, when having regard to the rationality of the Defendant’s decision regarding EBC, to bear in mind that he was not considering EBC in isolation. The ripple effect from the release of pupils from all three schools together will indirectly release sufficient pupils to make it more likely that some will go to BTC and have an effect on its standards. EBC would be adding to the indirect effect of GS and BS.

Miss Grey also submits that once unfairness has been found, the fairness of the corrective mechanism is for the adjudicator. She relies upon the observations of Ouseley J in Metropolitan Borough of Wirral v The Chief Schools Adjudicator CO/3642/2000. In that case on facts very different to the present, Ouseley J said that,

I agree with Miss Grey that the Defendant was entitled to have regard to the cumulative effect of his decision. He was entitled to consider EBC’s position as part of a larger picture. However, that is not an end to it. As to the observations of Ouseley J in Wirral, they were obviously made in the context of the facts of that case, as any ruling on rationality is bound to be, as Miss Grey accepted. The facts of this case are different.

It seems to me that what the Defendant is saying comes to this.

First, the main point that underlies the parents’ objections, namely an imbalance in the intake to EBC, fails. What the Claimant says is right. The fact that EBC’s intake might have a higher ability with selection than it would without it does not affect that.

Second, partial selection at the three schools was not a sufficient and primary cause of any unfairness that might result to children in SW11. BTC’s unpopularity and insufficient places at other schools was.

Third, the 6 high ability pupils (plus possible siblings) released by EBC are unlikely to go to BTC. Their parents will not choose to send them there. That is the rationale of the ripple effect. 6 of the more able children, at present at other schools, will be forced out by the high ability children presently at EBC and will be available to go to BTC. That is a consequence of over-subscription and fair banding.

Fourth, that the more able children forced out will go to BTC (with other children similarly indirectly forced out by changes to the other two schools). That such a change will help create “a more balanced pupil profile” for the three schools and BTC (see paragraph 42 of his witness statement) or to create “as level a playing field as possible.” In other words, that six pupils (plus possible siblings) should be removed from the balanced intake at EBC, speculatively and indirectly to benefit BTC.

Fifth, that such an indirect and speculative possible benefit as a result of changing (and reducing the quality of) the intake at EBC will make a meaningful contribution to an increase in standards at BTC (assuming too support from the local authority). That is so in spite of the Defendant’s view that it was “naïve” to believe that the injection of some 90 to 100 (which included siblings) of more able children on the basis of the total abolition of partial selection (see paragraphs 36 and 37 above) would have such an effect.

Once the Defendant decided that the objectors were wrong in their fundamental complaint regarding an imbalance in EBC’s intake, it seems to me it made it difficult rationally to justify any interference with it. The intake did not cause the unfairness of which the parents complained. At most, the intake at EBC had some more able children than would otherwise have been the case. The objective of creating a more balanced intake by reference to the intake into other schools in Wandsworth became by definition impossible to achieve as far as EBC was concerned for it was balanced already. I agree with Miss Laing: the remedy chosen was not rationally capable of correcting the unfairness. The possible indirect addition to BTC of a few pupils as a result of changing the intake to EBC is itself highly speculative. The number involved, albeit as part of a possible larger number from the other schools, could not make any meaningful contribution to the standards at BTC (whether or not there is an increased commitment from the local authority).

As to Miss Laing’s submission that there is no or no adequate explanation as to how the figure of 3% was arrived at as the figure for reduction, while I have considerable sympathy with it, it is not necessary for present purposes to consider it.

In the circumstances, as far as EBC is concerned I conclude the Defendant’s decision is flawed.

An issue arose as to whether I should have regard to the witness statements filed by the Defendant. Given that the primary reason for allowing this application has nothing to do with what is in them, I will take the matter very shortly.

This Determination was long and detailed. Since then, the Defendant has filed two witness statements, the first very long. He expands at considerable length upon his reasoning in the Determination. He explains various errors that were made in the Determination. Miss Laing, although she from time to time took me to the statements, submitted that other than comments relating to possible typing errors, I should not have regard to them. The Claimant was obliged to give reasons. He did at length. I should concentrate on the Determination itself. She drew my attention in particular to the observations of Stanley Burnton J in Nash v Chelsea College of Art and Design CO/3569/2001, in which earlier authorities are referred to.

Miss Grey submits I can have regard to what the Defendant says in those statements in a way wider than that suggested by Miss Laing. However, she placed little reliance on them. Provided I accepted what the Defendant said about the errors and that he was an expert with considerable experience in education matters, she did not seek to place great reliance on them. I indicated I would accept those matters. She overwhelmingly relied on the Determination itself.

I too have overwhelmingly concentrated on the Determination. I do however have this observation (while not making any sort of ruling upon the matter). The Defendant has the obligation to set out the reasons for his decision. In this case he did so at considerable length. I am not at all sure it is appropriate for there then to be another lengthy document seeking to justify and amplify what was said in the Determination. Although it did not here, it can lead to all sorts of problems.

The Determination was made on 8 August 2003. The application was submitted on 22 September 2003, well within the statutory period permitted. The Claimant submits that in the proceedings, which of course involve the admission to secondary school of children in 2004, it has acted promptly in all the circumstances. Without going into the detail of the statement made by Mr. Carter, the Claimant’s pupil services manager, it is clear that in August 2003 the Claimant’s legal services were very stretched. It was holiday time too. Counsel needed to be instructed. BS and GS needed to be consulted. Costs implications needed to be considered.

In my view the Claimant in all the circumstances did act promptly. If it did not, I would extend time.

In the circumstances I therefore grant the application for judicial review. Although I will hear submissions on it, my provisional view is that only that part of the decision which affects EBC should be quashed.