London Oratory School, R (on the application of) v The School Adjudicator & Anor

A duty to have regard to religious admissions guidance requires an admission authority to consider and engage with the guidance. It may depart from it, but must have and give clear, proper or legitimate reasons. The duty does not require slavish obedience.

Decision-makers exercising an inquisitorial admissions jurisdiction must act fairly, particularly where they rely on material capable of producing adverse findings. They must give the affected authority a fair opportunity to address the gist of the case.

Faith schools may use religious activities only where those activities are specifically laid out in admissions guidance by the relevant religious body. Evidence reasonably necessary to apply a legitimate criterion is not prohibited merely because the document may incidentally disclose other information.

The Governing Body of the London Oratory School applied for judicial review of a determination by the Schools Adjudicator dated 15 July 2014. The Adjudicator had found numerous breaches of the School Admissions Code (2012) in the School’s 2014 and 2015 admission arrangements, following objections by the British Humanist Association and the Adjudicator’s own consideration of later arrangements.

The School challenged ten aspects of the determination, including the alleged failure to have regard to Diocesan Guidance, socio-economic discrimination, Catholic service, the treatment of parents, baptismal certificates, previous Catholic education, consultation, and the clarity of admission forms. The central issues were the proper legal test for departure from the Diocesan Guidance and the fairness and rationality of the Adjudicator’s reasoning and procedure.

The claim succeeded in part. The Adjudicator’s findings concerning failure to have regard to the Diocesan Guidance, socio-economic disadvantage, the definition of parent in the 2015 arrangements, requests for parents’ baptismal certificates, previous Catholic education in 2014 and for Year 3 in 2015, and consultation were quashed or held incapable of standing. Other findings, including those concerning Catholic Service, choristers, medical and social need, and parents’ signatures, remained undisturbed.

1. Diocesan Guidance. Paragraph 1.38 of the School Admissions Code (2012) requires governing bodies to take the relevant religious guidance into account and, if departing from it, to have and give clear, proper or legitimate reasons. The guidance must be engaged with and not ignored or treated as a formality. It need not be followed slavishly. The Adjudicator unlawfully imposed a threshold akin to the compelling justification required for statutory guidance.
2. The extent of scrutiny depends on the significance of the departure. The authority must have a proper evidential basis, and the Adjudicator must scrutinise the reasons with the intensity required by the importance and sensitivity of the subject matter. The issue was remitted for further determination.
3. Socio-economic disadvantage and fairness. A breach of paragraph 1.8 requires findings both of disadvantage and of unfairness caused by the admission arrangements. The Adjudicator made deficient findings, misunderstood the School’s case, relied on material without giving the School a fair opportunity to comment, and failed to establish that the criteria themselves caused the unfairness. The process was procedurally unfair.
4. Specific criteria. Religious activities under paragraph 1.9(i) must be specifically laid out or authorised in admissions guidance published by the relevant religious body. Catholic Service was therefore impermissible. Requests for parents’ baptismal certificates were not prohibited by paragraph 2.4(a), since that provision did not prevent the School from obtaining evidence necessary to apply a legitimate criterion.
5. The School could ask the name of a previous school, provided it did not take that identity into account. Its 2015 list of Catholic schools was not a lawful feeder-school arrangement, but the criterion was not itself unlawful for 2014 or Year 3 in 2015, subject to lawful departure from the Diocesan Guidance.
6. Consultation and forms. Regulation 16 of the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012 did not exhaustively prescribe the manner of consultation. The School’s construction was rejected, but the Adjudicator’s finding that there had been no meaningful attempt to reach consultees could not stand. The 2015 definition of parent was overlooked and the corresponding finding was Wednesbury unreasonable. The remaining findings were lawful or not susceptible to challenge.

First instance judicial review. The judgment reviewed and set aside aspects of the Schools Adjudicator’s determination dated 15 July 2014; the matter required further determination on the Diocesan Guidance issue.