Successful School Admissions Appeal after re-hearing of the case

24 October 2017

Worthingtons were instructed by the parents of a child who had been refused admission to her first choice of secondary school. They had unsuccessfully appealed the decision to the School Admissions Appeal themselves.

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Having reviewed the Tribunal’s decision we considered that the Tribunal had misdirected themselves as to the law and facts in the original hearing and that an Appeal was merited.  

The Tribunal’s power to hear school admission appeals is set out within article 15(5) of the Education (Northern Ireland) Order 1997 (“the 1997 Order”), which states:

On the hearing of an appeal under this article-

(a)     If it appears to the appeal tribunal that the criteria were not applied, or were not correctly applied, in deciding to refuse the child admission to the school, the tribunal shall, subject to the paragraph (6), allow the appeal and direct the Board of Governors of the school to admit the child to the school;

(b)      In any other case, the tribunal shall dismiss the appeal.

(6) if, in the case mentioned in paragraph (5)(a), it appears to the tribunal that had the criteria been applied, or (as the case may be) been correctly applied, the child would have been refused admission to the school, the tribunal shall dismiss the appeal.

This is a strict statutory test. The Tribunal must ask themselves:

  1. Were the school’s admission criteria applied, or applied correctly; and
  2. If they had been correctly applied, would the child have been granted entry into the school

Further, the Tribunal’s statutory function is to look at the situation as it was before the school, when it purported to apply its criteria, not to substitute its own decision for the decision of the school.

We submitted that the Tribunal had erred in law by holding that no independent evidence had been provided to corroborate the existence of the problems as required by the school’s special circumstances criteria, as the school was satisfied with the evidence produced at the relevant time, and concluded that special circumstances did exist, albeit they only awarded 3 additional points in light thereof. We also argued that they failed to take account of a relevant consideration, namely that such evidence was provided, as the form was signed by the primary school principal, who is arguably an independent source of evidence in any event. Finally, we argued that the Tribunal failed to consider, or conclude, that the school had applied or correctly applied their admissions criteria, as required by Article 15(5) above.

Accordingly a letter threatening legal action by way of judicial review was served on the Tribunal.

Ultimately the position was conceded by the Education Authority on behalf of the Tribunal, and a fresh Tribunal hearing was arranged just prior to the start of the new school term.

We argued that there had been ‘special circumstances’ which affected the young girl at the time of the transfer test.

Unfortunately, at the time of the transfer test, one parent was suffering from ill health and the other parent required to regularly travel overseas. This had caused a strained atmosphere in the home environment, whilst also placing additional responsibilities on the young girl, who then had to care for her ill parent and younger sibling. Sadly there was also a sudden bereavement in the family, days before the transfer test.

The school had originally accepted the claim for special circumstances, and awarded 3 additional points, out of a maximum of 12. However it was clear from the paperwork provided by the school that this was the ‘most common’ band, which included sickness on the date of the test. We argued her case fell within a more serious band, which required a significant adjustment. She required a further two marks for admission.

The young girl’s Progress in Maths and Progress in English marks in Primary 5 & 6 indicated a higher level of ability, than that achieved at the transfer test, and we argued that should the criteria have been correctly applied it was clear, given her academic ability that she would have obtained an ‘A’ grade and been admitted to the school.

Thankfully the Tribunal accepted our argument, and held that the young girl should have received extra marks, and would indeed have been granted admission had the Board of Governors correctly applied their criteria in applying their special circumstances criteria.

As the young girl was successful at the new hearing, the school were required to create an additional place for her, and accordingly the young girl was admitted to the school in time for the start of the new school term.

If you have an Education Law query, please contact Emily Paisley or Brian Moss on 028 9043 4015, or alternatively via e-mail at emily@worthingtonslaw.co.uk or brian@worthingtonslaw.co.uk.

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