It is our recent experience that Sixth Form admissions are causing more problems for schools on an annual basis at this time of year. Sixth forms do need to comply with the Admissions Code when they are setting their admissions arrangements and this article will cover the common problems and pitfalls that schools fall into when dealing with Sixth Form admissions.
Setting a PAN and consultation
If the school accepts external candidates into the Sixth Form it is required to set a Published Admissions Number (“PAN”) which relates to external candidates only and is the minimum number of external applicants the school must admit. A school which only accepts internal students in Year 12 does not need to set a PAN.
In setting the Sixth Form PAN schools are reminded that they cannot off-roll any current Year 11 pupil who has obtained the academic entry requirements for Sixth Form.
We therefore recommend that the following formula is used when setting the PAN:
Sixth form Year 12 capacity – number of Year 11 pupils = PAN.
We suggest taking this approach even though it is unlikely that all Year 11 students will either want to attend the sixth form and / or achieve the necessary grades.
The school sixth form admissions criteria should therefore make it clear that the capacity for Year 12 is ‘X’, the PAN for external candidates is ‘Y’ (where relevant) and where there a fewer Year 11 pupils with the required entry requirements than places available the school will admit external candidates up to the Year 12 Sixth Form capacity number of X.
Sixth form admission arrangements are subject to the usual consultation requirements; any consultation must last for a minimum six week period during the period between 1 October and 31 January in the determination year. There is no requirement to consult where the admission arrangements have not changed from the previous year, subject to the requirement that admission authorities must consult on their admission arrangements at least once every 7 years, even if there have been no changes during that period. They must be determined and published in accordance with the same timetable as for admission arrangements for other points of entry; i.e. Reception and Year 7.
Academic entry criteria and subject specific entry requirements
Admission authorities are permitted to set academic entry criteria for their sixth forms, which must be the same for both external and internal places. As with other points of entry to schools, highest priority in oversubscription criteria for sixth form places must be given to looked after and previously looked after children who meet the academic entry criteria. Any meetings held to discuss options and courses must not form part of the decision process on whether to offer a place; it is not lawful to ‘interview’ students as a way of assessing whether they can join the sixth form. Equally, it is not lawful to reject an application on the basis of a student’s past behaviour or because they have SEND provided they have met the academic entry criteria.
It is usual for schools to set threshold academic entry requirements for Sixth form, together with subject specific requirements for A level study. This form of selection is permitted in accordance with the provisions of Section 99 (2) of the School Standards and Framework Act 1998 whereby Parliament specifically gives schools providing post 16 education the statutory right to select by ability for the purposes of further education.
Over-subscription criteria
Should there be more external candidates who meet the threshold academic entry requirements than there are places, the Code requires clear, fair and objective oversubscription criteria to decide who should be offered the places. As part of these criteria the admission authority is free to adopt a “sliding scale” to rank applicants so giving a higher priority to those with better GCSE results, remembering that all “looked after and previously looked after children” meeting the academic threshold must be offered a place before other applicants.
Sixth form applicants with an EHCP
We are increasingly being asked to advise on sixth form places for pupils with an EHCP. Whilst acknowledging that the Children and Families Act 2014 provides that once a school, to include an academy, is named in Section I of an EHCP there is a duty to admit, this does not and cannot override the provisions of Section 99 (2) of the School Standards and Framework Act 1998 whereby Parliament specifically gives schools providing post 16 education the statutory right to select by ability for the purposes of further education. This is analogous to the way in which wholly selective grammar schools cannot be named in EHCPs unless the pupil has met the required 11+ entrance requirements or academic standard.
This statutory right is further enhanced by the provisions of paragraph 8(1) of Schedule 11 of the Equality Act 2010, which provides that a person does not contravene section 85(1), discrimination in admissions, so far as relating to disability, by applying a permitted form of selection.
Schools are therefore advised when responding to local authority consultations for Sixth Form places to make it clear where there are concerns about the pupil’s ability to meet the academic entry requirements and only offer places on condition that the academic entry requirements are met. This is in line with the statutory position and should help to manage the expectations of parents and students.
This approach should be endorsed by the local authority when naming sixth form provision in Section I of an EHCP. In our experience the majority of local authorities will now include a cover letter providing that:-
“Section I names XXX School for Sixth Form. This decision has been made in line with the offer [name of student] received from the school. The placement is subject to [name of student] meeting the entry requirements in order to take up the place.”
General points
Finally, decisions about what courses young people are then able to follow having been offered a place is a matter for the senior management of the school and is not covered by the Admissions Code. Of course, schools should ensure that any discussions with students about their courses are not discriminatory.
In addition, it is advisable for schools to include a caveat in their sixth form admission arrangements, prospectus and conditional offer letters that places on courses are subject to availability, that there is no guarantee that the school will be able to offer students their preferred course choices and that the school reserves the right to withdraw a course on offer if, for example, it is not financially viable to run it.
It is also important to remember that the statutory exclusions guidance also applies to sixth forms. It is therefore unlawful to ask a student to leave for non-disciplinary reasons, for example, if their grades are not in line with expectations, especially in relation to progression into Year 13.
For assistance with all your Sixth Form admission and SEND issues please contact our team of specialist lawyers at schoolsupport@wslaw.co.uk or on 0345 070 7437.