Examination of Witnesses (Questions 780
- 799)
WEDNESDAY 19 NOVEMBER 2003
MR STEPHEN
CROWNE, MS
CAROLINE MACREADY
AND MS
SUE GARNER
Q780 Valerie Davey: You are putting
the onus back on the school. I am asking the Department what is
the argument for and against on principle.
Mr Crowne: So far as the operation
of the system is concerned and the Code as it is now, and with
the levers and mechanisms we have in place to ensure there will
be consistency with that, I do not think we see any difficulty
in a larger number of admissions authorities. I think the general
policy that ministers have adopted of increased diversity whilst,
as it were, protecting the interests of the individual seeking
to access the system would allow an increased number of admission
authorities without excessive difficulty. I think it really comes
back to how the system is actually operated and the practical
arrangements and the quality of the process of the individual
school at admission authority level. So I do not think there are
huge issues of principle there; I think it is about the practicality
of doing it. As Caroline has said, the option is there. Some schools
may see it as part of their particular ethos or mission to wish
to vary, to adopt different kinds of admissions policies, if that
is consistent with our notions of diversity in the system. Equally,
some are quite happy to be part of a wider system which is under
local authority admission authority control.
Q781 Valerie Davey: Is not the practicality
of it that, as soon as a school is oversubscribed, it is its own
admissions policy?
Mr Crowne: No.
Ms Macready: No, it is not, because
there are certainly many oversubscribed schools among the community
and voluntary controlled schools. An interesting side effect of
when secondary coordination becomes the norm across the country,
is that because parents will have to be invited to express at
least three preferences, an averagely subscribed school will probably
have three times as many applicants as places if parents take
up all three. Whether you are your own admission authority depends
on your school category. It is possible for a community or voluntary
controlled school to be its own admission authority if the LEA
has delegated to it that responsibility but in general it depends
on your school category.
Q782 Valerie Davey: Are you saying
that you are confident in the process that we now have, such that
the schools are not, in fact, in any way at all, choosing or having
a preference for the children who come in, but that the criteria
hold fast and parents—not in every individual case, obviously—are
the drivers and get their preference for the school?
Ms Macready: I think you have
put a different question there.
Q783 Valerie Davey: But they are
related.
Mr Crowne: Yes, they are related.
This is the burden of my earlier response. There is not so much
an "in principle" argument; whether people have confidence
that, in practice, the way the system is now and is likely to
improve, will improve their experience of the system. We are saying
that this is less about whether we have more or less admission
authorities, it is more about how individual admission authorities
and schools operate the system. We are confident but not complacent
that the new Code and co-ordinated admissions will help, but obviously
we will continue to monitor how it is going and make any necessary
improvements. The balance we always have to strive for is between
getting the right degree of consistency and fairness in the system
and allowing the degree of local decision-making that has become
enshrined in our arrangements and which successive governments
have considered to be a good thing. So it is a balance. We always
default to: What is the experience of people going through the
scheme? How can that be improved? And focusing on measures to
increase trust and confidence in the actual operation of the system
rather than in the principle argument about whether more or less
admissions authorities would be a good idea.
Q784 Valerie Davey: I think it is
quite important because even the Chief Schools Adjudicator has
said, "Where a school can choose children it will, left to
its own devices, inexorably drift towards choosing posh children."
What is in the system to ensure that even the Chief Schools Adjudicator's
concern is unwarranted?
Ms Macready: We are moving into
different territory now about what oversubscription criteria a
school has. There have to be oversubscription criteria in the
arrangements of every school, whoever is the admission authority
and whether or not it has been oversubscribed in the past, and
those oversubscription criteria have to be established by April
of the year before the intake in September—and at that point
obviously the admission authority cannot tell which individuals
are going to qualify under them. Once the oversubscription criteria
have been settled, they are published and they have to be stuck
to. If they are not stuck to, then there will be problems in the
appeals stage. I think Philip Hunter's quote was more about what
sort of oversubscription criteria different sorts of schools may
choose. But we should not confuse "deciding to give a particular
group priority" with "selection"—which is,
in my book, something you do on an individual basis faced with
individual applicants, where they go through a test of ability
or aptitude. That is selection when faced with the individuals;
the other is a pre-determined statement of whom you will accept
if you have more applicants than places. The Code of Practice
says that certain oversubscription criteria are common and acceptable—like
sibling links, distance, proximity, social needs, catchment areas,
feeder primary schools, and those sort of things. Then there are
other possible oversubscription criteria, which are perfectly
lawful, sometimes only for certain types of schools; for instance
denominational priority for schools of religious character. They
may not be in the "common and acceptable" list but schools
are perfectly entitled to choose them.
Q785 Valerie Davey: If I may stop
you, I think this begs two questions. First of all, whether what
you are now describing is still clear, fair and objective, or
to the benefit of all children, which is the question my colleague
was asking earlier. But I would like to ask you one last question:
Given the situation that you are describing under the new Code,
do the LEAs have sufficient authority to establish a fair system
which is recognised and leads to an effective admissions policy
in their area?
Mr Crowne: Provided all the admission
authorities in the area are abiding by the Code and administering
the system effectively, with the coordinated arrangements coming
in, I think we can have confidence that the arrangements overall
are sufficient. The reality of this is that wherever you have
an oversubscribed school of any kind, you have to have some basis
for selecting the children. But this word "selection"
as Caroline has made clear, needs to be understood very clearly.
It is not giving the head—the head has no role in this—the
ability to select individual children; it is done blind. You have
your criteria; they have to be applied completely fairly between
whoever applies, if the school is oversubscribed; and there is
recourse for appeal in other ways in the case of parental dissatisfaction.
For me this is very much about whether in practice these arrangements
in the Code are being adhered to, rather than how the system should
operate. I am pretty confident, actually, that if we get this
consistency and fairness, as per the Code, you will get the right
kind of balance and fairness in the outcome. The issue is whether
in every case these arrangements are being adhered to.
Valerie Davey: Thank you, Chairman.
Chairman: We will turn to school admissions
criteria.
Q786 Helen Jones: If, as you were
saying, we want to get to a fair outcome, why is it that the Code
of Practice only points out the "inadvisability" of
discriminating against certain social groups? Why does it not
prohibit it?
Ms Macready: It points out that
there is various legislation which prohibits discrimination and
that admissions authorities would not want to break that legislation.
It then points out that certain things they might put in oversubscription
criteria could carry that risk. It is not really for the Code
to say definitely that doing things would breach the Race Relations
Act unless there is case law on that exact situation.
Q787 Helen Jones: So in your view
it is sufficient to say to schools this is "inadvisable"
rather than that this is prohibited?
Ms Macready: I think it is all
that one can say in the Code unless one is talking about a particular
situation that has been into court.
Q788 Helen Jones: Why do you need
to talk about a particular situation? I am sorry, I am not following
you. If we want to get to a fair system, why does the Code not
say, "You must not discriminate against certain social groups"?
Surely that would be a completely fair Code of Practice, would
it not?
Mr Crowne: I think the Code does
have pointers to take account of the wider social mix issue. There
is a sentence which says "The criteria should as far as possible
cater for all elements in the school's local community."
But I think it comes back to this point about how much we seek
to prescribe these things which have to reflect, in the end, local
circumstances and give the right degree of local discretion. Whenever
something like that appears in the Code, that does give people
a hook on which to hang a question about local arrangements, and
then the adjudication arrangements and so on can be brought into
play. It is there, in that sense, but I think we have to distinguish
what are clear legal requirements through other legislation which
gives certain rights which are very clear and must be observed,
from things which have to be taken into account but will manifest
in different ways in different local circumstances.
Q789 Helen Jones: It is all right
for local arrangements to be unfair then, is it?
Ms Macready: No, we are saying
that the Code is good practice guidance, it is not law. It cannot
say, "Thou shalt not." It can say, "It is bad practice
to do this and it risks, in some cases, a breach of law."
Then a school who sees that bad practice in another school's admission
arrangements may say, "I know that if I object to that to
the adjudicator, that will be taken out." That is how this
bit of the system works. But the Code cannot lay down strict law.
Q790 Helen Jones: Would you not accept
that that is rather a long-winded way of doing it? Why do we have
to rely on the adjudicator to enforce fair practice rather than
setting that out very clearly in the Code? Is that not rather
an expensive and cumbersome way of doing things?
Mr Crowne: I would argue the opposite
case. If we sought to legislate effectively from the centre for
all of these areas, we would produce an unholy bureaucracy that
none of us would want—not least all the parents who need
to access the system. That is why one of the key principles of
the system and the system of adjudication, which is not the first
resort, is built on a local process of trying to build consensus
and agreement about the way that all of these arrangements operate
in the interests of the local people, but giving an outlet to
the adjudicator to consider each case on its merits. I can say
confidently that for us to seek, essentially, to prescribe, in
the way that I think you are suggesting, would not produce the
kind of outcomes that parents would wish to see. I do understand
your point about trying to be clearer about what fairness means.
If you look at the way that the adjudicators work, I think that
gives us a high degree of confidence that they are sensitive to
all of these kinds of issues, but they do in the end have to balance
considerations in individual circumstances.
Q791 Helen Jones: I was suggesting
that perhaps we might describe discrimination, which does not
seem particularly peculiar to me. But could I look at how the
Code of Practice works in other areas. It is very clear that the
adjudicator has also said that looked-after children should be
top priority when you are dealing with oversubscription criteria.
The Committee has had evidence that in many cases it is not in
fact the case where the schools are their own admission authorities:
some schools do apply it; others do not. In that case, do you
think the Code of Practice is giving a strong enough steer on
acceptable admissions criteria? What do you know about how far
that is being applied and what action could be taken against schools
who are not applying it? Because we have talked about parental
preference but we are dealing here with children who do not have
parents to argue for them.
Ms Macready: That is why, when
we did the latest version of the Code, we felt we wanted to make
it absolutely clear that they should have top priority in oversubscription
criteria, no argument. We sent the Code out to all admission authorities,
we pointed out the new things in it, the new requirements. You
are right that not all the admission authorities did voluntarily
put looked-after children there at the top when they determined
their admission arrangements for 2004. In some places this was
picked up by other schools or their LEA making an objection to
the adjudicator. Kent LEA, for instance, objected where they did
not see looked-after children number one. In other places, it
was not. I recall that, when you saw Bryan Slater from Norfolk,
he said he had been reading his schools' admission arrangements
and, lo and behold, some of them had not put that in at the top
of their criteria. We found ourselves wondering, "Well, should
the LEA not have been reading those rather earlier, at objection
time, and made an objection?" That is really how we would
like to deal with that.
Mr Crowne: Absolutely. Could I
just underline that. It is for the local education authority to
object. It is quite clear in the Code what should happen. The
local authority is best placed to consider what is happening locally
and they are entitled to object.
Jonathan Shaw: They may not object.
Q792 Helen Jones: What if they do
not object?
Mr Crowne: The local authority
is responsible for children in care.
Q793 Helen Jones: We are getting
back to this balance again, are we not, between criteria that
can be applied everywhere and relying on someone to object? Would
it help in these cases, in your view, if the adjudicator was given
the authority to investigate proactively admissions policies rather
than waiting until he received a complaint?
Ms Macready: I think it would
make it a little difficult for him to carry out his quasi-judicial
role at a later stage, if he had been in there saying, "I
don't think that is right," at an earlier stage. There may
be an argument for somebody investigating admission arrangements,
though that would take a lot of somebody's time, and with the
local consultation processes that we have set up it really should
not be necessary, because for any school admission authority's
arrangements there are a very large number of other schools in
the local area, as well as the LEA, who could pick that up and
refer it to the adjudicator if it is not right. The Department
does investigate if we receive a complaint from a parent or somebody
else. We then may investigate and may write, perhaps saying "We
see this is not in your admission arrangements, and it should
be."
Mr Crowne: We are always proactive
in responding to those kinds of cases.
Q794 Helen Jones: But it seems very
hit and miss, would you agree? We set down all these criteria
and we are relying on someone to get somewhere to pick up the
things that are wrong with them and object, before we can make
sure they are working properly. Is that the best way of doing
it?
Mr Crowne: I think you have to
look at the costs on the other side as well and how the system
would work. We are very clear that if it turns out that the current
arrangements are not providing the right kind of rules and incentives
to ensure the kind of consistency that is embodied in the Code,
we will need to consider what more needs to be done. I would underline
the very important role that individual local authorities now
have in ensuring—because they can object—that this
consistency is being applied. We have talked about looked-after
children, but it applies more generally as well. There is an element
of local leadership that really needs to be picked up. If that
is not working, then we will need to review, I think.
Q795 Helen Jones: Could I take you
to another area about which we have been concerned and where we
wonder whether this is working properly. We have received evidence
that children of asylum seekers may be unable to access regular
education, partly because of poor co-ordination between different
parts of the council and partly because they move around. Do you
know how many asylum seeker children are currently living in England?
Do you know how many of them are receiving full-time education?
Ms Macready: None of those present
here have that information, but we can find out for you.[14]
Mr Crowne: That does not mean
the Department does not know.
Q796 Helen Jones: Does anybody know?
Mr Crowne: Could we send you that
information?[15]
Q797 Helen Jones: It would be very
helpful. We recognise as a committee that taking in children with
any particular special needs puts a strain on the school—and
certainly children of asylum seekers, who may not speak English,
come into that category. What arrangements are in place to support
schools in that position? If you happen to be a school in an area
where there may be many children of asylum seekers, what arrangements
is the Department putting in place to make sure that those schools
have the proper support to make sure that those children can receive
a decent education and that the other children in the school are
not disadvantaged at the same time?
Mr Crowne: The primary responsibility,
of course, rests with the local authority. A lot of the local
authorities which face these issues to the greatest extent are
very active in working with their schools to ensure that the right
kind of provision is available both within the school and also
to support those families and pupils outside school. If we are
talking about admission arrangements, I think it is very important
that, in taking a view on the best way of providing for these
children, local authorities do look at how admissions are handled
and they take it as their role to lead the building of a local
consensus of that amongst the schools. I think anybody would be
concerned about arrangements if it were clear that the children
were simply ending up in one school because that school happened
to have the available places but no facilities. So it is something
that has to be managed very proactively locally and it does have
to be, in the end, a shared responsibility between all the schools
in the area. We are quite clear about that. That is a difficult
thing sometimes to get consensus on, but the onus has to be with
the local authority in leading thinking within that area about
the best way of providing for the children, and that applies in
areas not to do with asylum seekers or refugees but where there
are clear social issues around provision as well.
Ms Macready: The admission forum
is a very good place to have that discussion and decide what should
be done.
Q798 Helen Jones: Yes, that may be
so, but what in your view should happen to schools who are their
own admission authorities and may well not be participating in
this process? You are quite right, that is what should happen
in the best of all possible worlds, but we do not live in the
best of all possible worlds, do we?
Ms Macready: The admission forum
should have those schools represented on it. The arrangements
that they discuss locally for securing places for vulnerable children,
including asylum seekers and other categories, should apply to
every school and every school should play their part in accommodating
them. Typical arrangements that have been made in some places
are that, if there are children of a defined category who need
places, they should not all be put in the one school which has
places but two children, say, meeting this description will be
placed in every school, even if a school is already at its admissions
limit.
Q799 Helen Jones: Who is the guardian
of the interests of asylum seekers' children?
Mr Crowne: The local authority
has ultimate responsibility for ensuring the education of the
children in its area. That is why they have to have the lead responsibility
in this. They have responsibility for providing education within
school but also outside school as necessary. That is pretty clear.
The other point I wanted to make is that fairness in oversubscription
criteria rules out criteria that can expressly discriminate against
groups of children such as this one. I was just talking to Sue
about whether we could think of fair criteria that could be proxies
for that. It would be very hard to come up with a fair criterion
under this system that would allow schools to exclude asylum seekers.
That is not to say there are not some severe practical constraints
on asylum seekers accessing individual schools, particularly when
they are oversubscribed, but if people are abiding by the Code
and participating proactively in the forum, that should give a
good basis for resolving these issues in the best interests of
the children. That does require the local authority to work hard
to create that consensus.
Ms Garner: May I add that some
authorities, when they have had agreed protocols and some schools
which are their own admission authorities have refused to accept
pupils, have actually come to us, and we have advised ministers
on issuing the directions, so that those schools are actually
made to take part in those protocols that they have already agreed
and on which they are reneging.
Helen Jones: Thank you.
14 Note: See Ev 220. Back
15
Note: See Ev 220. Back
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