Paul Upson is an Associate Director at education law specialists, Napier Solicitors. In this Quarterly Education Law Update, he looks at a recent decision of the Northern Ireland High Court in relation to post-primary admissions criteria.

Introduction

The covid-19 pandemic has had a profound impact on many aspects of school life. One area where there have been significant ramifications is the transfer of pupils from primary to post-primary education.

Grammar schools in Northern Ireland ordinarily use academic selection as part of their admissions criteria. There are two transfers tests – one administered by the Post Primary Transfer Consortium (PPTC) which is known as the GL transfer test and another administered by the Association for Quality Education (AQE) which is known as the AQE transfer test.

The GL and AQE transfer tests are normally taken by pupils each Autumn. As a result of the covid-19 pandemic, the commencement of the transfer tests was initially put back until January 2021 and then cancelled outright.

When it was decided that the GL and AQE transfer tests would not take place for those pupils transferring to post-primary schools in September 2021, Grammar schools had to consider the implications for their admissions criteria. School admissions criteria were then published by the Education Authority on 2 February 2021.

The Applicant in this case was a prospective pupil of St Malachy’s College Belfast. On Friday 19 February 2021 judicial review proceedings were issued on his behalf in the High Court challenging the admissions criteria the school had set. Napier Solicitors acted for St Malachy’s College. The case was heard by Mr Justice Colton on Wednesday 24 February 2021 – with a decision delivered the following day.

Evidence placed before the Court on the Applicant’s behalf said that he had been registered to sit the GL transfer test before it was cancelled and that he had his “heart set” on attending St Malachy’s College.

Statutory framework

Mr Justice Colton’s decision outlined the statutory framework for the transfer of pupils from primary to post primary education as set out in the Education (Northern Ireland)

Order 1997 (“the Order”)[1]. He drew particular attention to the following provisions:

• Article 16 which says that a Board of Governors shall draw up (and may from and time to time amend) the criteria to be applied in selecting children for admission to the school;

• Article 16B which says that the Department of Education (“the Department”) may issue (and from time to time revise) such guidance as it thinks appropriate in respect of the arrangements for the admission of pupils to grant aided school. Article 16B also says that the Board of Governors of grant aided schools have a duty to have regard to any relevant guidance which is in force.

Pursuant to Article 16B, the Department had published guidance on the arrangements for the transfer of pupils from primary to post primary education. The most recent version of the guidance was issued on 21 October 2020[2]

The judgment makes it clear that schools are not legally obliged to adopt or follow the guidance. They have a broad discretion to formulate admissions criteria in accordance with their own priorities and needs. That said, their discretion is constrained by the need to “have regard to” the guidance. Mr Justice Colton says that this means that schools must engage with and give real weight to the guidance; and that they should only depart from it based on cogent and reasoned justification.

The School’s Admission criteria

The relevant section from the school’s admissions criteria is set out below: 

In the event of there being more candidates in any criterion than places available within such criterion priority will be given in descending order to those who indicate on the online transfer form/application or its equivalent that they: 

a) where registered to sit the GL entrance assessment on 30th January 2021 or were granted Special Provision;

b) are applicants who are siblings of present or past pupils of St Malachy’s College;

c) are applicants who are the eldest boy of the family eligible to transfer to mainstream post primary education. This criterion covers ‘only’ children and will treat twins or other multiples as joint eldest; 

d) are a pupil who is entitled to Free School Meals at the date of application[3].

e) are pupils from the following contributory primary schools (not listed in order of preference)[4].

The Applicant’s contentions

The Applicant argued that the school’s admissions criteria were unlawful because they did not follow the guidance from the Department. The Applicant’s case was based primarily on the following three points:

1. The school should have placed entitlement to Free School Meals as the first criterion in terms of priority.

The Applicant was entitled to Free School Meals and, therefore, his chances of securing a place at the school would have increased if this factor had been placed as the first criterion in terms of priority.

The guidance from the Department recommends that priority is given to applicants who are entitled to Free Schools Meals, so that the proportion of such pupils ultimately admitted to a particular school is not less than the proportion of first preference applications from individuals with such an entitlement.

The school gave evidence that it traditionally attracted a high proportion of applicants who were entitled to Free School Meals. The school also provided evidence that they had carried out a modelling exercise which indicated that there was real risk that placing Free School Meals as their first criterion might actually have operated to disadvantage pupils in that category.

Mr Justice Colton said that it was striking that the guidance from my Department did not set out the thinking or policy objective behind the recommended criteria; and did not say how or in what respect the recommended criteria advance the policy thinking or objectives. That said, he did acknowledge that it was apparent that the purpose of the Free School Meals criterion was to address discrimination based on economic disadvantage in secondary level education.

He then went on to decide that, in the context of the school’s history of admitting a high proportion of Free School Meals pupils and the real risk of potential disadvantage identified in the modelling exercise, it had adopted a patently rational and lawful approach to how it had addressed the Free School Meals criterion.

2. Criterion b should not have extended beyond siblings currently attending the school (i.e. it should not have included pupils who were the siblings of past pupils).

The evidence on behalf of the school was that the Board of Governors felt that it was important to retain siblings of past pupils as part of this criterion because the maintenance of family links was part of the ethos and traditions of the school.

Mr Justice Colton ruled that the school had put forward a reasonable justification for their approach; and that their reasons were rational and were not motivated by any improper or unlawful objective. He noted that there was a natural temporal limitation on the relevant criterion – in most cases where an applicant is relying on this criterion their sibling will have left the school in recent years.

3. The school’s criteria should have included a specific “geographical” criteria.

The school’s evidence was that it had traditionally drawn pupils from an extremely wide geographical range; that it gave priority to feeder primary schools (made up of those primary schools that had sent at least one pupil to the school in the past seven years); and that the spread of feeder primary schools covered an adequate geographical area. Mr Justice Colton decided that the school’s choice to use feeder primary schools was one it was entitled to make and that its reasons for doing so were reasonable and cogent.

Conclusion

Mr Justice Colton dismissed the application. His overall view was that the school had formed a balanced and reasonable set of admission criteria. He ruled that the school had engaged with, and given real weight to, the guidance from the Department; and that, where it had departed from the guidance, it had done so on the basis of cogent and reasoned justification.

This is an important judgment which schools should keep it in mind during any future consideration of their admissions criteria.