‘Inconsequential technicality’ leads to quashing of schools adjudicator decision on London Oratory

In August, following a complaint from the British Humanist Association (BHA), the Office of the Schools Adjudicator (OSA) determined that the London Oratory School, a highly selective Catholic school, must completely rewrite its admissions policy. However, the BHA is disappointed to announce that that the Government’s lawyers have demanded (and the school readily agreed) that that decision is quashed, as a result of an arguable error in that determination of no material consequence. The BHA has expressed its frustration at the set-back.

The BHA complained about the school’s policy in May, and the OSA determined in August that ten separate areas of the policy breached the School Admissions Code, which all state schools must follow. These included not allowing students with no religion to be admitted, if the school was undersubscribed – something the school has now changed; and having a ‘Catholic service criterion’, which gives priority to parents who, for at least three years, have carried out activities including ‘Assisting in the Liturgy: for example by reading, singing in the choir or playing an instrument, altar serving, flower arranging.’ Such a criterion is likely to be highly socio-economically selective, and indeed the school is in the top ten most unrepresentative in the country.

An inconsequential error was made by the adjudicator in relation to one of three areas he found this criterion to be in breach of the Admissions Code and as a result the decision in its entirety is being quashed and the determination process re-done.

BHA Faith Schools Campaigner Richy Thompson commented, ‘It is immensely frustrating that this decision is to be scrapped on what can only be described as an inconsequential technicality. We will continue to press this matter and seek a near-identical ruling from the schools adjudicator, as it is wrong that a school can have such an admissions policy when the consequence is so much socio-economic manipulation of its intake. 7% of pupils at the school are eligible for free school meals, compared to 36% locally.’

Why is the decision to be quashed?

The ‘Catholic service criterion’ was found to break the Code in three different ways, namely that it is unfair, it constitutes financial or practical support for the Church, and it prioritises children on the basis of their own or their parents’ past or current hobbies or activities (paragraph 1.9i). An exception to the last of these three is that ‘faith’ schools ‘may take account of religious activities, as laid out by the body or person representing the religion or religious denomination’. But the Roman Catholic Archdiocese of Westminster’s guidance on admissions says ‘Under no circumstances may governing bodies receive applications and then produce a ‘rank order’ based on their own assessment of each applicant’s Catholicity instead of using the priest’s reference. Any rankings determined by reference to financial contribution, participation in parish committees, service in Church ministry in any capacity or the like are not acceptable.’

In the adjudicator’s decision last August, he wrote that ‘The diocese… has published guidance to schools on admissions and this is where I would expect to see such religious activities laid out if they are to be [permitted]… However, the guidance is silent on this matter’ – and therefore, while being wrong about the silence, correctly concluded that paragraph 1.9i is breached.

In September the London Oratory School threatened to judicially review the OSA’s August decision with respect to the ‘Catholic service criterion’ specifically. Following failed mediation with the Department for Education in November, the threat was resumed, and in December, the Treasury Solicitors declared that as the diocesan guidance is not silent on the matter, there is an arguable error of law, and so the entire decision must be quashed and re-done. This is in spite of the fact that it is of no consequence, is one of three reasons that the criterion is in breach of the Code, and the criterion was in turn just one of ten areas of the admissions policy to be found in breach. Finally, the BHA was advised by David Wolfe QC (who has been supporting the BHA throughout the case) that instead the parties could simply seek a declaration from the court that this one portion of the decision is in error. But the other parties were unwilling to accept this, and so the BHA is left with no choice but to accept the decision’s quashing.

Notes

For further comment or information, please contact Richy Thompson on 020 7324 3072.

Since first submitting this complaint, the BHA has helped found the Fair Admissions Campaign. ‘The Campaign wants all state-funded schools in England and Wales to be open equally to all children, without regard to religion or belief. The Campaign is supported by a wide coalition of individuals and national and local organisations. We hold diverse views on whether or not the state should fund faith schools. But we all believe that faith-based discrimination in access to schools that are funded by the taxpayer is wrong in principle and a cause of religious, ethnic, and socio-economic segregation, all of which are harmful to community cohesion. It is time it stopped.’ http://fairadmissions.org.uk/

Read the OSA’s decision: https://humanism.org.uk/wp-content/uploads/AD2410The-London-Oratory-Hammersmith-Fulham-28August13.docx

Read the BHA’s previous press release on the OSA decision: https://humanism.org.uk/2013/08/29/schools-adjudicator-london-oratory-school-must-overhaul-admissions-criteria-after-bha-complaint/

Read the BHA’s press release on the threat of judicial review: https://humanism.org.uk/2013/11/05/london-oratory-school-challenges-schools-adjudicators-decision-must-rewrite-admissions-policy/

Read more about the BHA’s campaigns work on ‘faith’ schools: https://humanism.org.uk/campaigns/religion-and-schools/faith-schools

View the BHA’s table of types of school with a religious character: https://humanism.org.uk/wp-content/uploads/schools-with-a-religious-character.pdf

The British Humanist Association is the national charity working on behalf of non-religious people who seek to live ethical and fulfilling lives on the basis of reason and humanity. It promotes a secular state and equal treatment in law and policy of everyone, regardless of religion or belief.

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