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Grammar school expansion

School children iStock 000006736409XSmall 146x219Rachel Kamm considers the legal issues surrounding the Education Secretary's decision to back a new annex proposed by a grammar school.

There has been much debate in the news (e.g. BBC, Daily Mail, The Times) about the pros and cons of grammar schools, in light of the Government’s decision (welcomed by Kent County Council) to permit a grammar school in Tonbridge (Weald of Kent) to open a new annex in Sevenoaks for 450 girls (adding 90 places to the grammar school’s annual intake).

The Secretary of State for Education, Nicky Morgan, made a statement to Parliament explaining the decision:

“I have today written to the head teacher at the Weald of Kent Grammar School in Tonbridge, Kent, to confirm that I have approved their proposal to expand on to a new site in Sevenoaks, Kent.

It is this Government’s policy that all good and outstanding schools should be able to expand to offer excellent places to local students. The Weald of Kent Grammar School is one of the top performing schools in the country, with 99% of its students achieving five A*-C grades in GCSE exams in 2014, and 98% of sixth form students achieving at least 3 A-Levels at grades A*-E.

The Weald of Kent Grammar School submitted a proposal for expansion in 2013. At that stage the then Secretary of State could not approve the proposal as an expansion because the proposal at that time was for a mixed sex annexe when the existing school was single sex. The school submitted a revised proposal in September 2015 under which girls will be educated on both sites alongside a mixed sex sixth form. I am satisfied that this proposal represents a genuine expansion of the existing school, and that there will be integration between the two sites in terms of leadership, management, governance, admissions and curriculum. I am also satisfied that the excellent quality of learning currently delivered will be replicated across the newly expanded school. I welcome the fact that the newly expanded school will better meet the needs of parents in the local area, with 41% of existing pupils at the Weald of Kent Grammar School already travelling from the Sevenoaks area.

The school expects to be able to start educating pupils at its new Sevenoaks site from September 2017.

My decision in this case has been taken on the basis of the proposal from the Weald of Kent, in line with legislation and criteria determining what constitutes an expansion. It does not reflect a change in this Government’s position on selective schools. Rather it reaffirms our view that all good schools should be able to expand, a policy which is vital to meet the significant increase in demand for pupil places in coming years. Further applications from good selective schools to expand will continue to be considered within the framework of the statutory prohibition on new selective schools and would have to meet the criteria for being a genuine expansion.”

Aside from the policy debates about selective schools, this is a controversial decision from a legal perspective. The Guardian speculates that “legal challenges are expected, with a judicial review most likely“. The issue is that there are legal limits on when schools can select by ability or aptitude in their admissions arrangements and the Government cannot create new grammar schools:

  • The Secretary of State’s power to designate schools as grammar schools is limited to maintained schools that had selective arrangements for all or substantially all of their pupils in 1997/8 (section 104 of the School Standards and Framework Act 1998).
  • Section 39 of the Education and Inspections Act 2006 provides that no admission arrangements for a community, foundation or voluntary school may make provision for selection by ability of compulsory school age pupils, unless (i) the school is a grammar school; (ii) the  selection arrangements existed back in 1997-8 without significant change and the proportion of selected pupils has not increased (under section 100 SSFA); or (iii) the selection arrangements are for pupil banding (under section 101 SSFA).
  • Selection by aptitude is only permitted under section 99 SSFA if (i) the  selection arrangements existed back in 1997-8 without significant change and the proportion of selected pupils has not increased (under section 100 SSFA); or (ii) the selection arrangements relate to aptitude for prescribed subjects and apply to up to 10% of admissions only (under section 102 SSFA).
  • The general rule for academies is that they have to provide education for pupils of different abilities (section 1A of the Academies Act 2010). However, existing grammar schools and schools with pre-existing selection arrangements can continue to be selective if they convert to academy status (section 6 AA).
  • The process for expanding existing maintained schools (including grammar schools) is set out in Part 2 of the Education and Inspections Act 2006 and the School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2013/3110. The statutory guidance discusses when an expansion onto a new site will be a genuine expansion and when it will be treated as a new school. Decisions are taken on a case-by-case basis, taking into account the reasons for the expansion, how the two sites will be used, governance and administration arrangements, and the use of the facilities.
  • Where the grammar school in question is an academy (as in this case), the relevant statutory guidance provides that academies have to obtain Secretary of State approval (via the EFA) for any significant change. An expansion that increases the published admissions number (PAN) must be made as set out in the School admissions code. As with maintained schools, if an expansion onto a new site is proposed, the Secretary of State will take into account reasons for the expansion, how the two sites will be used, governance and administration arrangements, and the use of the facilities. Before seeking the Secretary of State’s approval, the Academy Trust must first consult (including with the local authority and parents) and consider the equality implications of the proposal.

Given this legal framework, the big question is whether the Weald of Kent is proposing a genuine expansion of an existing grammar school or whether the expansion is unlawful because (in substance) it would be a new school. It sounds as though the grammar school is taking steps to move pupils between the two sites and to organise the governance arrangements so as to meet the test for a genuine expansion. However, any court challenge would be likely to consider the factual arrangements in detail and so it is difficult to predict the outcome at this stage.

As a footnote, it is interesting to see that the number of grammar school places in fact have increased since the late 1990s. The House of Commons Library has a very useful briefing paper on Grammar School Statistics, last updated in December 2013, that explains that “There has been a very gradual but steady increase in the number and proportion of pupils at existing grammar schools over the past 25 years as their average size has increased“.

Rachel Kamm is a barrister at 11KBW. She can be contacted on 020 7632 8500 or This email address is being protected from spambots. You need JavaScript enabled to view it.. Rachel also tweets via @Kamm11KBW. This article first appeared on the set's Education Law Blog.