DETERMINATION – objection by appropriate body
Case reference: ADA/001720
Objector: Diocese of Westminster
Admission Authority: Governors of Cardinal Vaughan Memorial School
Date of decision: 25 May 2010
Determination
In accordance with section 88H(4) of the School Standards and Framework Act 1998, I partially uphold the objections lodged by the Diocese of Westminster.
In addition to considering the objection, I have also considered the admission arrangements as a whole in accordance with section 88J of the School Standards and Framework Act 1998 and decided that further aspects of them were not compliant with the Code. But, because it was not possible to complete this determination before the admissions process had begun it would not be appropriate to make changes to oversubscription criteria for September 2010.
However:
The provision for partial selection on the basis of aptitude in music will remain; but the unlawful aspects of the selection process must cease forthwith. That is, it must avoid selection on the basis of prior attainment or ability, and the mandatory requirement of paragraph 2.89 of the Code must be applied.
The provision for banding will remain; but the methodology employed to carry it out must follow the approach indicated in the determined arrangements – i.e. that defined by paragraph 2.86 c) of the Code.
The referral
1. The Diocese of Westminster (the diocese) has referred an objection to the Adjudicator about the admission arrangements (the arrangements) for the Cardinal Vaughan Memorial School (the school), a Roman Catholic boys’ comprehensive secondary school for September 2010. The objection relates to a number of perceived breaches of the Admissions Code and the refusal of the school to modify its arrangements in accordance with diocesan guidance.
Jurisdiction
2. These arrangements were determined under section 88C of the School Standards and Framework Act 1998 (the Act) by the governing body which is the admission authority for the school. The diocese submitted its objection to these determined arrangements on 30th July 2009. I am satisfied that this objection has been properly referred to me in accordance with section 88H(2) of the Act, and that it falls within my jurisdiction.
Procedure
3. In considering this matter I have had full regard to all relevant legislation, guidance and the School Admissions Code (the Code).
4. The documents I have considered in reaching my decision include:
· The diocese’s letter of objection of 30th July 2009 and supporting documents;
· the school’s response to the objection and supporting documentation;
· Further representations from both parties;
· maps of the area identifying relevant schools and areas from which the school draws its pupils;
5. I have also taken account of information received during a meeting I convened on 10th September 2009 at the school attended by representatives of the diocese, the school and the Royal Borough of Kensington and Chelsea (the LEA).
6. In addition to investigating the matters raised by the objector(s) I have also reviewed the admissions arrangements as a whole and considered whether I should use my power under section 88J(2)(b) of the Act. I am using my powers under the Act to identify further necessary changes to the arrangements.
The Objection
7. The objection raised several key issues under separate headings. Firstly there were three alleged breaches of mandatory aspects of the Code:
· That the school gives priority on the basis of the applicant’s, or his parent’s, involvement in church related activities in contravention of paragraph 2.16 of the Code.
· That the school takes into account the dates when applicants first received the sacraments of Confession and Holy Communion; which is procedurally unfair because of the lack of a reliable evidence base, and potentially discriminatory because of different conventions across the wider Catholic communion.
· That the school uses its own Priest’s Reference Form (instead of the procedure prescribed by the diocese) which, seeks proscribed information in order to apply inappropriate criteria
8. Secondly there were three alleged breaches of non-mandatory aspects of the Code which the diocese argued had enhanced force because of their own guidance to which Catholic schools must also have regard under the Code.
· That the school selects 10% of its intake according to aptitude for Music which the diocese has determined is not appropriate for Catholic schools because of the adverse effect on neighbouring schools. [I noted that the school uses banding which is also contrary to the general guidance issued by the diocese. No formal objection was lodged in the initial complaint although the issue was subsequently raised during my meeting.]
· That the school does not give priority to “practising Catholics living closest to the school”. The diocese considers this to be generally desirable and rejected the schools counter argument that its current arrangements are necessary to protect its “founding principles, pan-London character & vibrant Catholic ethos.”
· That the school recognises “exceptional needs” only by allocating one additional point within its points system. The diocese regards this as both inappropriate in principle and insufficient to meet the needs of such pupils.
9. Thirdly the diocese has objected to the school’s separate ‘sixth form’ admissions policy on the grounds that the school:
· Requires submission of, and makes offers based on, samples of applicants work;
· Requires submission of ‘personal statements’ and references from previous schools;
· Undertakes a “suitability discussion” that is, de facto, an unlawful “interview”;
· Has a year 12 Planned Admission Number (“approximately 50 external places”) which is too vague.
10. In addition the diocese has raised the general objections that taken together, the overall arrangements are not “clear, objective and fair” as required by paragraph 1.71 of the Code, and the school is failing to promote equity, fair access and community cohesion in the way required both by the Code and the diocese.
11. The diocese also questions whether the points system used by the school is compliant with the Code (paragraphs 2.12 & 2.13). It contends that the resulting rank ordering of applicants according to their degree of “Catholicity” results in a form of social selection which is inconsistent both with the Code and the teaching of the Catholic Church.
Other Matters
12. In addition to the issues outlined above I noticed some other aspects of the arrangements which could contravene the Code.
13. The second priority for admission (after Catholic boys in public care) is for baptised Catholic boys who can meet all of five specified conditions. One of these is that “The boy has attended a Catholic School for the whole of his statutory education or his parent(s) or carer(s) have made formal provision for his Catholic education outside school”. I noted that the guidance from the diocese actively supports this criterion. However it is arguable that this could be construed as a prohibited form of “conditionality” under paragraph 2.16 a) of the Code. Category G also allows a contribution to the points score for attendance at a Catholic primary school within the Royal Borough of Kensington and Chelsea (RBK&C), which is problematic for the same reasons.
14. As noted above (paragraph 8) the issue of banding was not initially part of the objection but was raised subsequently.
15. The objection to partial selection according to aptitude for music was simply that the Diocese disagreed in principle with their schools adopting such criteria. I noted however that some of the methods used by the school to test for this aptitude went beyond those that are permitted under the Code.
16. I raised these matters with the parties at my meeting on 10th September and gave them an opportunity to make representations to me on these points.
Consideration of Factors
Status of the Objection
17. A preliminary point of difference between the parties concerned the legal basis of the relationship between the diocese and the governing body of the school, their relative powers and the extent of my jurisdiction in relation to the determination of admissions criteria.
18. The school’s position was that legislation accorded the diocese the status of consultee, albeit a consultee with a special status, and that legislation did not suggest that it had the right to dictate elements of the school’s arrangements. The objection went too far in attempting to impose the will of the diocese on the school. The governing body had the right, indeed the duty, to determine arrangements for the school in the light of their overall responsibilities and the requirements of the Code having regard (amongst other things) to the views of all those they had consulted.
19. The diocese accepted much of the school’s submissions although there were differences as to the weight which the bishop’s guidance should be given. They contended that on one particular matter, pertaining to religious practice and observance, the Code did give the school an obligation to comply with its guidance. This argument was based on paragraph 2.16 k) of the Code. Paragraph 2.16 covers things admission authorities must not do in setting oversubscription criteria. Sub paragraph ‘k’ says they must not:
“give priority to children, according to their, or their parents,’ particular interests specialist knowledge or hobbies. This does not include taking account of membership of, or participation in, religious activities for faith schools providing this is consistent with this Code and guidance issued by the faith provider body/religious authority;"
20. The diocese argued that the framing of this paragraph means the specific exemption from strict compliance with this paragraph is only available to schools with a religious character which follow the guidance of their “religious authority”. This gives the diocese a de facto right to define the forms of participation in church affairs which are, or are not, appropriate to use within oversubscription criteria which would otherwise contravene paragraph 2.16 k).
21. By contrast, legal advisers retained by the school invited me to consider the section of the Code under the general heading “Additional Guidelines for Faith Schools” beginning with paragraph 2.46. In particular they drew my attention to paragraphs 2.48 and 2.52. The material passage of paragraph 2.48 reads:
“It is primarily for the relevant faith provider group or religious authority to decide how membership or practice is to be demonstrated, and, accordingly, in determining faith-based oversubscription criteria, admission authorities for faith schools should only use the methods and definitions agreed by the faith provider group or religious authority (see paragraph 2.52).”
They argue that the use of the word "should" in this paragraph indicates that admission authorities are required only to "have regard to" rather than "act in accordance with” guidance from the relevant faith group. If legislators, or the DCSF, had intended to give the diocese a power to dictate to individual school admission authorities it would have been made explicit in this paragraph.
22. The school contended that this was also shown by paragraph 2.52 , which says:
“Religious authorities may provide guidance for the admission authorities of schools of their faith that sets out what objective processes and criteria may be used to establish whether a child is a member of, or whether they practice, the faith. The admission authorities of faith schools that propose to give priority on the basis of membership or practice of their faith must have regard to such guidance, to the extent that the guidance is consistent with the mandatory provisions and guidelines of this Code. In applying faith criteria, faith schools must ask their religious authority (the body or person representing their religion or religious denomination, as is prescribed or specified in the funding agreement) to confirm whether someone is a member of, or practises, the faith, in order to apply faith-based oversubscription criteria."
The view of the school's legal adviser was that the only obligation here was an obligation to have regard to the diocese’s guidance, not to follow it. The contention was, therefore, that nowhere in the Code was any explicit power given to the diocese to require schools to follow its guidance. The diocese’s argument based on paragraph 2.16 k) was incorrect: it was not the principal part of the Code on the issue of faith provider guidance, paragraphs 2.48 and 2.52 are, and 2.16(k) must be read as being subject to those.
23. The second part of paragraph 2.52, relates to decisions in individual cases. It was common ground that this means such decisions must be made by the parish priest. It did not bear on whether the school had to follow diocesan guidance as to its admission arrangements: it was about (as it says) the application of criteria, not their determination. The parish priest should simply provide confirmation of facts relevant to the criteria determined by the school. The diocese asserted that it was for the Bishop as religious authority to determine how parish priests judged Catholic practice, and took the view that schools should not define different practice criteria if they wished to avail themselves of a priest’s reference.
24. I was also asked by the school to entertain a distinction between criteria which related to “membership and practise of the faith” - where it was accepted that the diocese had a more important role; and those which were attempting to assess the “degree of involvement in the life of the church” where the school believed governors had a greater freedom to determine their own criteria within the general constraints of the Code.
25. At one point during the meeting a member of the governing body suggested that an underlying objective of the oversubscription criteria was to identify those who had the greatest commitment to the faith. It was subsequently formally communicated to me that the Governors do not presume to assess applicants' "commitment to the faith." Although I accept this statement at face value, I observe that the word “commitment” does appear in both the disputed categories C and D within the oversubscription criteria.
26. I have considered these arguments very carefully. I found the diocese’s position on paragraph 2.16 k) initially attractive. It seems to me clear that this proscription is widely drawn with respect to the generality of schools, and the exemption for faith schools can apply only if relevant criteria are consistent both with the overall provisions of the Code and guidance from the religious authority (in this case represented by the diocese). However the main section of the Code that deals with the relationship between faith schools and their religious authorities (and in particular paragraph 2.48) uses the word “should” not “must” which does indicate the weaker level of obligation. Nevertheless that formulation does mean that schools should only use the methods and definitions agreed by their religious authority unless they have justification for not doing so. Paragraph 2.48 includes a cross reference to paragraph 2.52 which states that admission authorities “must have regard to” guidance provided by religious authorities. I have to assume that the drafting of the Code is deliberate and if it had been intended that admission authorities must comply with the guidance (rather than the weaker have regard to it), the Code would have said that. I must conclude therefore that the school’s legal interpretation of the Code is correct. However considerable weight needs to be given to guidance from the religious authority; and a school based admissions authority would need to have very good reasons for departing from it. Admission authorities are required to follow non-mandatory provisions of the Code unless they have justification for not doing so. This is clear from the requirement on admission authorities at paragraph 4.5 of the Code to refer an objection to the Schools Adjudicator “if the admission arrangements contravene admissions law, do not comply with the mandatory provisions of this Code or fail to follow its guidelines without justification”(my emphasis). To summarise therefore, I believe the diocese does have a role that goes beyond that of an ordinary consultee in relation to providing guidance on the criteria to be used to establish membership or practice of the faith, but this falls short of a right to require schools to adopt criteria where the school has justification for not doing so.