Joint Committee on Statutory Instruments Ninth Report


APPENDIX 2

Memorandum from the Department for Education and Skills

EDUCATION (CO -ORDINATION OF ADMISSION ARRANGEMENTS) (SECONDARY SCHOOLS) (ENGLAND) REGULATIONS 2002 (S.I. 2002/2904)

1. The Joint Committee has requested a memorandum in relation to the above instrument on the points set out below.

Question 1

Paragraph 6 of the Schedule states that a determination under paragraph 2(c) may only be communicated to the parent by the authority on behalf of the governing body. Why is no similar provision made with respect to determinations under paragraph 4(c)?

2. Paragraphs 1, 2, 5 and 6 of the Schedule set out the requirements of a qualifying scheme and the respective obligations of a local education authority responsible for formulating such a scheme and each governing body admission authority within that authority's area to which it applies. As such, "the authority" referred to in paragraph 6 as making a determination in accordance with paragraph 2(c) will be the authority which is referred to as "the home authority" in paragraphs 3 and 4. The latter paragraphs make additional provision in relation respectively to applications made by parents from within a local education authority's area for schools in another local education authority's area, and by parents outside their area for places at schools which they maintain. In such cases, the authority making a determination as to whether a child is to be granted or refused admission to a secondary school in their area will be either the "home authority" or the "maintaining authority" depending on the type of application in question. In those circumstances the Department did not consider it was appropriate to include a reference to paragraph 4(c) in paragraph 6. However, paragraph 4(e) of the Schedule makes similar provision as regards a maintaining authority's obligation to communicate offers on behalf of a governing body admission authority.

Question 2

Paragraph 6 also does not appear to make provision for the case where the governing body are the admission authority. What are the respective duties of the governing body and the authority in such a case?

3. The duties of a governing body admission authority in relation to each application for their school are set out in paragraph 5 of the Schedule. Under sub­paragraph (c) of that paragraph they are required to notify the local education authority who maintain the school of their determination as to a child's priority ranking under the school's admissions criteria. Where, having regard to any such notifications and any determinations which that authority may themselves have made under paragraph 2(b), it appears to the authority that a child in their area is eligible to be admitted to more than one secondary school then, under paragraph 2(c) read with paragraph 1(a), the authority determine what single offer of a school place is to be made to a parent in their area.

4. If the child in question is not resident within the area of the local education authority maintaining the school a governing body admission authority must still notify that authority in accordance with paragraph 5(c) of the child's priority ranking. Under paragraph 4(c) the maintaining authority then determine, having regard to any other potential offers the child may have for schools in their area, whether to offer a place at the school. They are required to notify the home local education authority under paragraph 4(d) of their determination. However, in these circumstances, it is the maintaining authority and not the home local education authority who communicate the offer to the parent in accordance with paragraph 4(e); that sub­paragraph also provides that where the offer relates to a school whose governing body are the admission authority the offer is communicated by the maintaining authority on the governing body's behalf.

6 January 2003

Further memorandum from the Department for Education and Skills

EDUCATION (CO -ORDINATION OF ADMISSION ARRANGEMENTS) (SECONDARY SCHOOLS) (ENGLAND) REGULATIONS 2002 (S.I. 2002/2904)

1. The Joint Committee has requested the Department to submit a further memorandum in relation to the above instrument on the points set out below.

Point 1

In answer to the Committee's first question, the Department's memorandum acknowledges that paragraph 4(e) of the Schedule makes similar provision to that in paragraph 2(e). If it was considered necessary to include paragraph 6 in respect of the latter, why is it not also necessary in respect of the former?

2. Paragraphs 2(e) and 4(e) of the Schedule each make clear that any communication granting or refusing a child admission to a particular school is to be made by the local education authority (LEA) who maintain the school, and that any such communication is communicated by them on behalf of the governing body in any case where the LEA are not the admission authority for the school.

3. The Department acknowledges, on reflection, that the inclusion of paragraph 6 was unnecessary and that it makes no difference to the practical effect of the Regulations.

Point 2

The Department's answer to the Committee's second question makes it clear that all decisions as to whether a child is to be granted or refused admission must be made by the authority, even where the admission authority is the governing body of the school. Identify the provisions which authorise the Regulations to require a scheme to include this requirement, and explain how the Regulations in this respect are compatible with section 89C(3) of the 1998 Act.

4. The Department respectfully points out that it is not the case that all decisions as to whether a child is to be granted or refused admission to a school must be made by the LEA. As explained in the previous memorandum, where a governing body are the admission authority for a school they are required by paragraph 5(c) of the Schedule to notify the maintaining authority of their (ie. the governing body's) determination under sub­paragraph (b), by reference to the school's admissions criteria, of a child's priority for admission to the school. Under paragraph 2(c), where it appears to the LEA (having regard to any such notifications and any determinations they themselves may have made under paragraph 2(b) in relation to schools for which they are the admission authority) that the child is eligible to be admitted to more than one school, only then do the LEA determine ­ by reference to the criteria specified in accordance with paragraph 1(d)(i) ­ whether in relation to each such school the child is to be granted or refused admission.

5. The power to include in the scheme a requirement for any admission decision to be made by the LEA (whether or not they are the admission authority) is conferred by section 89B(6) of the 1998 Act. This defines a "qualifying scheme" as "a scheme that meets prescribed requirements" (ie. ones prescribed by regulations). The Department acknowledges that such a scheme need not inevitably include such a requirement (and the possibility that it might not is contemplated by section 89C(3)). Section 89C(3) however does not constrain the scope of the powers conferred by section 89B, so there is no inconsistency.

27 January 2003


 
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