Examination of Witnesses (Questions 380
- 399)
MONDAY 10 NOVEMBER 2003
DR IAN
BIRNBAUM AND
MR PAUL
ROBINSON
Q380 Mr Chaytor: Am I right in thinking
this is a matter of contention in Kent at the moment and is the
adjudicator about to give a revised adjudication? If the adjudicator's
final decision were that this was not an acceptable form of practice
because it gave those parents who wished to put their children
into a selective school two bites of the cherry, how would you
respond in terms of the Pan-London Project?
Dr Birnbaum: As I understand what
the adjudicator is minded to say, this is about individual schools'
own admission criteria. There are several schools in Kent who
have criteria which include a requirement that they be put first.
In a sense they are operating a first preference first system
for them. Kent is putting forward what I have just described,
which is the equal preference system, and is arguing that there
is an incompatibility between what the county system is and individual
schools saying "You must apply to us first". In a logical
sense there is not an incompatibility because there is a strict
distinction between what each school does in terms of applying
its criteria and what the local education authority does in dealing
with all the potential offers which are coming from various schools.
In that logical sense there is none. I have to say it is up to
the adjudicator in the end what he says, but I believe that there
is an incompatibility in terms of outcome if he allows that to
happen. If an authority, having got a scheme which allows that
degree of flexibility to parents, then has schools which can override
it by saying they have to be put first, that seems to me to undermine
the whole scheme. I do not know how Kent have argued it with the
adjudicator. I would hope, even if the adjudicator is minded and
goes ahead and does that, that if the same thing happens in London,
we would want to argue very strongly that there is incompatibility
of outcome here whatever the logic of the case.
Q381 Mr Chaytor: Given you said the
co-ordinated scheme is designed to make the whole process fairer
for more parents, would you accept therefore that it is incompatible
to have a system which gives certain parents two bites of the
cherry? How can you defend the equal preference if the objective
of the scheme is to make it fairer across the board?
Dr Birnbaum: The equal preference
does not give anybody two bites of the cherry. What it is doing
is asking what you most want and if that school actually offers
you the place, then that is the one you will get.
Q382 Mr Chaytor: But if it does not,
then you have a fallback position.
Dr Birnbaum: That is right; if
it does not, what do you second most want, what do you third most
want? The problem with a first preference first system is that
it forces parents to guess in advance what is the most likely
outcome. They may not most want the school which is saying if
you do not put us first we will not consider you, that is what
they are saying in effect. They may not most want that school,
but they may have to calculate that if they do not put that school
down because of where they live, they will not get anything else.
What that system is doing is taking away their choice completely.
What the system is doing which we are describing is opening it
up. In that sense there does seem to be an incompatibility between
the two objectives.
Q383 Valerie Davey: It is interesting
that we focused, rightly, on London with its complexity but other
areas of the country are looking at your system. Do you think
it is unique to the London diversity or are there aspects of it
which you think will be taken up in other areas in the country?
Dr Birnbaum: The need to co-ordinate
admissions is something which is a nationwide one. Indeed within
the legal regulations there is a requirement for a limited amount
of co-ordination, co-ordination within each authority. The issue
with London is that there is a great deal of cross-border movement,
a great number of cross-border applications and that is why it
matters so much to London. What I have just described also happens
on the edges of almost every other local authority. Even if you
are in a county—and remember that we hope we are going to
have eight counties which are going to be part of this system—if
you are living on the edge of a county then you are probably going
to be applying to more than one authority. In that sense, there
is still a need for some degree of co-ordination across boundaries.
If that does not happen, then you are still going to have multiple
offers. Whilst the size of the authority means it is not as pressing
in some areas, it seems to me it is still necessary. We would
see our project perhaps in time being rolled out across the whole
of England, a form of UCCA system really I suppose. Quite what
happens to Wales, I am not sure, but that is certainly a possibility
for England.
Q384 Valerie Davey: No less a person
than the Chief School Adjudicator reckoned it was going to crash
at some stage, three, five, seven years down the line on the London
basis, so taking an Englandwide basis it looks a gone conclusion.
What was your reaction to Dr Philip Hunter's comment and how do
you feel about it?
Dr Birnbaum: I think we all want
an evidence-based approach. I was not sure what evidence he was
using to make that judgment because clearly we have not tried
it before and indeed even the UCCA system, complicated though
it is, does work as a system. I would not be suggesting that we
roll it out to the whole of England straightaway, of course not.
I think we need to get it right in London and London is the hardest
nut to crack. If we do get it right in London, then the orders
of magnitude to go from London to the country are actually not
that great, because logically the process is the same. We will
have in our system a number of failsafe elements, and I do not
just mean technological failsafe elements but legal elements,
which will mean it is possible, if a particular authority does
not actually give the information it should, for that authority's
offers to have to be made by it alone and you take that out of
the co-ordination system. The way the law is currently written
that will be quite legal. It would be foolhardy of me to say no,
there will be no problem, because there probably will be, but
we will solve as many of those problems as we can up front. I
am much less pessimistic than Philip Hunter on this. I did not
see where he got that evidence from but he is entitled to his
views as the Chief Adjudicator.
Q385 Valerie Davey: Do you feel Sutton
is working? How far have you got with it in Sutton? Is that your
pilot in a sense for seeing what would then happen?
Dr Birnbaum: Not really. We have
been doing it for some time in Sutton and it does work in that
we maximise the number of offers we can make, we have not had
any technical difficulties, the schools like it, the parents like
it, there are fewer appeals, that sort of thing. So Sutton is
a long-standing pilot, but there are several authorities this
round who are trialing part of the system, trialing the in-borough
co-ordination bit of the system. That will work through this year.
By the end of this round, we will have about 12 authorities which
have tried it. Of course the big one is the inter-borough co-ordination.
We will be testing that in advance with our database, but that
will happen for real in 2005. That has never been done before,
so we cannot know whether—
Q386 Chairman: Could we bring Mr
Robinson in, in terms of this customer satisfaction or what he
sees from the Wandsworth point of view? How are your teachers
and parents responding to this new system? What is your judgment?
Mr Robinson: We are all holding
our breath because this has never been done before. Whenever you
are working with 33 London boroughs and over 400 schools and dealing
with technology, although the technology is fairly straightforward
and not too complicated, I suppose you can, if you allow yourself,
have the odd sleepless night about it. The prize is such a wonderful
one though. If your constituency were in London, the postbag would
be very heavy with letters from parents who were unhappy that
late on in July, even in August, they still had not secured a
place for their child and the only reason for that being that
other parents were holding onto multiple acceptances of offers.
This system will almost eliminate that. At the moment the City
Technology Colleges and Academies may be outside it. They can
join, but they need to choose to join. Additionally, there will
still be parents who will apply both to the maintained sector
and to the independent sector and may not let you know until late
in the day whether they are going to accept a place in a maintained
school.
Q387 Chairman: They might also apply
to a religious school. I understand that the Oratory, for example,
which we all know about, will not entertain anyone who does not
make that school both in terms of faith and in terms of first
choice. They will not entertain them at all. They do not have
to join your system, surely? There will be a whole patchwork of
religious denomination schools who will not opt in.
Dr Birnbaum: This is what I was
saying earlier about the distinction between the local authority
co-ordinatian aspect and the individual school's criterion. I
guess the example you have given of religious schools has led
the adjudicator to be minded to say what he is saying in relation
to Kent, where it is not church schools which are doing that.
Logically there is no incompatibility. What we are saying is that
parents can put their choices down one by one and in terms of
the way we will decide which place they get, we will give them
the highest amongst those which are making an offer. However,
if there are some schools—and the Oratory is one—which
will only make an offer to a parent who puts them first, in the
case of the religious schools they generally do that because it
shows religious commitment and that is what they argue. Then parents
have to take account of that. If they put the Oratory second,
it is still true that if they do not get their first choice, then
we will give them their second choice, if it is being offered,
but if the second choice is the Oratory, the odds are very low
that it will be offered. Do you see what I mean? The Oratory will
still be part of the system, it is just that because it is requiring
parents to put it first, then it is operating its own first-preference-first
system in the school. That is legal, we cannot do anything about
that and we have to live with it.
Q388 Jeff Ennis: How effective is
the current school admissions code of practice? Is it working?
Does it need to be beefed up? Are admissions authorities giving
it due regard?
Dr Birnbaum: It is very early
days; the current code of practice is very new. It is hard to
answer your question in terms of how effective it is being. What
it contains within it, backed up by regulation—as you know
from previous evidence, the code of practice itself is not a requirement,
it is something admissions authorities have to have regard to—does
allow us to do what we are proposing to do in relation to co-ordination.
We could not do it really if we did not have the backup of the
regulations. Basically, schools just would not opt into it. They
are required to opt into a limited part of it and we believe it
will be possible to get them to opt into all of it. In that sense
the code of practice is very welcome.
Mr Robinson: Yes, I would agree
with everything Ian has said. The other parts are quite new and
interesting and we shall just have to see how it works. The fact
that schools are no longer allowed to interview youngsters is
particularly important for those schools with a religious character.
The fact that I guess the government has given the lead to Children
Looked After with admission authorities being asked to give priority
to them is also important. In London authorities have embraced
these ideas or are looking at them very seriously at the moment.
We would probably want to give it a year or two before we answered
your question properly.
Q389 Jeff Ennis: I guess we are going
to have to wait a few years in terms of the Pan-London Project.
Eventually, if you feel there are inadequacies within the current
code, will you be making submissions to government to try
to improve it? Is that the intention?
Dr Birnbaum: Absolutely. We have
worked quite closely with the government in formulating it. I
was on the small working group which was set up to look at it.
The original intention of the government was a much grander scheme
than they have in the code of practice. Originally the government
were proposing a fully co-ordinated scheme across the whole of
England, which was a bit foolhardy, but there was a time at which
that was being proposed.
Q390 Jeff Ennis: Why do you think
they have drawn back from that?
Dr Birnbaum: We actually made
a representation to the government from London and said that from
our point of view we felt that was a step too far and that we
could see the merit of what was being proposed, but to go from
nothing—by nothing I mean a number of authorities not even
co-ordinating admissions to their own schools—to a system
where you had co-ordination across the whole of England would
be an extremely bold step. I talked earlier in passing about the
Wales position and I was not being flippant. Wales of course is
not included in this and that is quite interesting. If you are
on the Welsh border, quite what happens I am not sure, if you
have a fully co-ordinated system.
Mr Robinson: I am sure you are
going to ask us later, but just in case you don't, I want to put
a marker down so that we may be able to come back to it. In London,
apart from the issue of co-ordination which has caused a lot of
unhappiness and angst among parents and pupils, locally
elected members and officers, the other issue which is a cause
of concern and which we think we need to crack, although I cannot
say to you that I can answer, is to do with additional and casual
admissions and the fact that we have such high pupil mobility.
That can have a profound effect, not only on the youngsters, but
also on individual schools. There is a real job to be done behind
the scenes, trying to win the hearts and minds of head teachers
and other admissions authorities, which you may want to talk about
later.
Chairman: That is a very important point.
Q391 Jeff Ennis: Are there any omissions
in terms of criteria which ought to have been included in the
code of practice with regard to school admissions?
Dr Birnbaum: One of the things
the code of practice does not really tackle, is the schools' own
admissions criteria, except in general terms. Obviously there
are general statements about it, but it is pretty vague compared
with some of the more precise statements. Clearly it is a hot
potato and the question is how specific one wants to be about
admissions criteria. It is partly because the code of practice
is as vague as it is on that, that we have the situation in Kent,
for example, where it appears that the adjudicator is going to
say that it is perfectly satisfactory to have a scheme which the
government itself is actually imposing of an equal preference
scheme, but that individual schools can do something which is
different in outcome to it. It is partly because the code of practice
is so vague about criteria that that situation comes about.
Q392 Chairman: It is not only vague,
it can be ignored. It is not binding, is it?
Dr Birnbaum: No, that is true.
It has to be held in regard, but if it said something rather more
about, for example, the relationship between schools' own admissions
criteria and the co-ordinated scheme, then I would say that the
adjudicator, because he would have regard to the code of practice,
probably would have been minded to say something different to
what he is going to say in the current situation. Whilst the code
of practice is not binding in the sense that it is not legal,
not like regulations, because there is an adjudicator and because
he has gone on record saying that actually in most cases he will
be guided by the code of practice, that is what will happen. After
all, we may have schools which interview, even though they are
not supposed to under the code of practice. I guess what will
happen there is that will be referred to the adjudicator and then
the adjudicator will say "Sorry, you can't do that because
the code of practice says you should not do it".
Q393 Chairman: So it is not mandatory,
it is patchy because of the religious schools saying they must
be the first choice. We are getting to a very strange position
in terms of the assessment of this code of practice, are we not?
Dr Birnbaum: I am obviously not
here to defend the code of practice, heaven forbid I should do
that.
Q394 Chairman: You would like it
to be toughened up. This is coming through every word you are
saying.
Dr Birnbaum: This is a very difficult
area. I can see why the government have not toughened it up, because
the matter of schools' own admissions criteria starts then to
impinge upon a whole number of other issues in relation to what
degree of self-determination there should be for a school versus
central policy and how important parental preference is compared
with an assessment of need, those sorts of issues. These are big
issues. I do not doubt that. The code of practice does not actually
deal with those at all; apart from Children Looked After it just
does not deal with them at all.
Q395 Mr Turner: My authority, which
is the Isle of Wight, is the one which can opt out of the Pan-England
Co-ordination Admissions Programme. Could you tell me how many
parents were left with no offer in, say, August, over the most
recent three years either in each authority in London or in your
own authority or somewhere?
Dr Birnbaum: In my authority,
and it would be interesting to compare it with Wandsworth, we
have a co-ordinated system and there were no parents without offers.
Mr Robinson: In Wandsworth you
are in the low teens. What you are facing may not necessarily
be the same parents and the same youngsters who did not have an
offer say in June and July. What we tend to unearth are pupils
whose parents have not bothered to make an application. The education
welfare officers, using their lists and by knocking on doors often
discover that nothing has been done about applying for places
for some youngsters. Then you find that a number of families have
moved into the area and perhaps did not know they were going to
move into the area until the last minute, or perhaps they did
and did not do anything about it; so the education welfare service
picks up those. There is quite a chunk of youngsters in this category.
It is not always a problem associated with the function of the
admissions system, it is simply that some unique and curious cases
are being picked up.
Q396 Mr Turner: Rumour has it that
Bromley, Croydon, Sutton have operated these co-ordinated schemes.
I do not know whether that rumour is correct. Could you describe
the effect of introducing such a scheme in your borough and what
you know about the other two boroughs I have mentioned? Also,
how does it happen at the moment in Wandsworth?
Dr Birnbaum: As far as I know
neither Bromley nor Croydon have operated a scheme, although Croydon
is looking to operate the same scheme as the Sutton scheme. Sutton
have done this now for four years. The situation before that was
that we have nine different admissions authorities in Sutton across
the 14 schools, the eight schools which are foundations or voluntary
aided and the six community schools. We had a limited degree of
co-ordination across the six community schools, but the other
eight operated their own system so a parent could get four or
five offers and did. Remember there was no legal basis for this,
it was entirely voluntary. What we agreed with the schools was
that in the interests of a better deal for parents, we would co-ordinate
the admissions in the way I said earlier, but I will quickly go
through it again, that all of the schools would agree that parents
should put down the schools they want to apply for in the order
they want them and that schools would be bound by that. That works
very well. We use software because it is quite complex to do it.
Parents understand it; it is more difficult to understand than
the other system. The outcomes are better. That is the system
we have in Sutton at present.
Q397 Mr Turner: In Sutton is it done
independently of the local education authority? Is it an independent
body like the pan-London one is proposed to be, or is it the LEA
doing it on behalf of Sutton?
Dr Birnbaum: It is the LEA doing
it on behalf of schools, although there is a Chinese wall between
the LEA as an admissions authority and the LEA as a co-ordinator.
Incidentally, the pan-London scheme will also still have the LEA
doing it. It is just that there is another level above in the
pan-London one, but it is still at an LEA level.
Mr Robinson: As in a number of
authorities, in Wandsworth we have three voluntary aided schools,
four foundation and three community schools. They all jealously
guard their autonomy. Many of the schools until a few years ago
had their own selective tests, because a number of schools have
partial selection. The approach we had in Wandsworth was to encourage
the parents to apply to as many schools as they would like, wait
until they received multiple offers and then decide which one
they wanted to hold onto and then let the others go. This caused
lots of problems. The first thing that happened was that the schools
agreed with the authority that we needed to introduce a single
common test which would be taken on a single day, rather than
schools all having different tests and youngsters having to sit
lots of tests. The schools also agreed with us that we should
move to a co-ordinated arrangement which, when the code came out,
we deferred introducing because we wanted to implement the approach
which is now set out in the code. We would have introduced a system
similar to that in Sutton, even if the new code had not been published.
The Committee suspended from 5.56 pm to 6.06
pm for a division in the House.
Q398 Helen Jones: I should like to
go back on something you mentioned earlier, if I may? Could you
tell the Committee how widespread are the use of admissions criteria
by schools which are contrary to the guidance in the code? I am
talking about both formally stated and informal methods for
admissions.
Dr Birnbaum: I can only talk for
my own authority, to be honest. I do not have evidence beyond
that. What I guess I would say in general terms is that any authority
which knows that some of its schools have admission criteria which
are incompatible with the code of practice does have a line of
action, which is to refer it to the adjudicator. The chances are
very high that the adjudicator would say that such practice could
not continue because it is incompatible with the code of practice.
That is a general answer to your question. I do not know of any
schools in Sutton which have criteria which are incompatible with
the code of practice. Having given you that general answer, perhaps
I could just add one thing. The way the system is framed does
make it difficult for authorities because it is adversarial. We
do want to work in co-operation with schools as far as we can.
It is therefore difficult sometimes for an authority to get into
a situation where it takes some of its schools to the adjudicator
because it does not like their practice. I am not saying that
is what should happen. I believe an authority should be robust.
Probably part of the reason that some of these practices go on
is that there is that tension in terms of an authority's desire
to maintain good relationships with its schools.
Mr Robinson: I am not aware of
any formal cases when admissions authorities are not abiding by
the code. There is a perception, some rumour and anecdotal evidence
about things which go on which are a little bit untoward, but
it is very hard to get the evidence to substantiate that.
Q399 Helen Jones: You referred earlier
in your evidence to the particular situation in London where there
are lots of cross-border applications between authorities which
perhaps in other areas of the country only applies at the margins.
I should like you to tell us, in the light of that, how the Greenwich
judgment has affected your two authorities. Do you think it will
still remain relevant after the implementation of your co-ordinated
admissions project?
Dr Birnbaum: The Greenwich judgment
clearly does have an effect in that it means that admissions authorities—and
it only applies to admissions authorities of course—cannot
have criteria which differentiate between applicants on the basis
of their local authority area. In practice, that means that it
would not be possible for grammar schools, which are effectively
regional schools, and over 50% of our children in grammar schools
come from outside Sutton, even if they wished to, to have criteria
which restricted that, which certainly used to be the case some
time ago. That is the first bit. The second bit is what is the
relationship between what we are saying and the Greenwich judgment?
The Greenwich judgment is unchanged as a judgment although clearly
the court would have to re-interpret it in view of the new legislation—and
as I understand it, the new legislation does not actually overturn
the judgment—and what we are proposing is compatible with
the Greenwich judgment.
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