Northern Ireland's grammar schools are gearing up for costly legal challenges against their new entrance exams by taking out niche insurance policies, it can be revealed today.
Schools involved with the controversial new transfer tests for P7 pupils are spending up to £2,000 on policies in a bid to ensure they are protected financially if they face a judicial review of their admissions decisions.
It can also be revealed today that families could have to cover a legal bill of up to £20,000 to take a case against a school — and possibly costs for the other side if they lose a High Court battle.
One grammar principal told the Telegraph: “Most controlled schools I know of are taking out some kind of insurance to cover the possibility that they could end up with a judicial review and the education board not willing to represent them.”
Principals seek legal advice
Grammar schools signed up for new entrance tests are spending thousands of pounds on special insurance to protect themselves against possible legal challenges by parents, the Telegraph has learned,
Head teachers across the province have also sought legal advice from solicitors who are specialists in education law in a bid to reduce the risk of parents taking them to court over their admissions process - which the schools insist is entirely lawful.
However, the Children’s Law Centre (CLC) in Belfast warned today that there is still the potential for judicial reviews to be taken against schools who go ahead with new transfer exams against the advice of the Education Minister.
Caitriona Ruane has raised the possibility of legal challenges many times and has also stressed that her department will not tolerate children being discriminated against.
“I have no doubt that it is not possible to test children at 10 and 11 without discriminating against children,” she said.
Kathryn Stevenson, Acting Head of Legal Services at the CLC, said: “The Children’s Law Centre lobbied strongly for the abolition of the 11-plus transfer procedure, however, we are very concerned that the current arrangements for Transfer 2010 will have a detrimental impact on the future educational outcomes for many children.
“It is intolerable that we now have a situation where there is no regulation of the tests or admissions processes by the department and schools can simply opt in and out of the guidance that has been issued.
“There is certainly the potential for judicial reviews against schools that decide to go ahead with exams against the advice of the department and schools may be open to challenges in respect of the admission decisions they have taken.”
She continued: “I know that some schools have taken out special insurance to protect themselves against challenges from parents and many schools are seeking advice from solicitors on how to protect themselves from legal proceedings.”
Mrs Stevenson said parents are almost always the applicants in court proceedings in judicial reviews relating to school admissions as the choice of the post-primary school is deemed to be a parental choice.
“It is only in exceptional cases that legal aid would be awarded to a child on the basis that the child has ‘sufficient interest’ in the proceedings.
“A Court of Appeal case limited the right to obtain legal aid for children in school admission cases to prevent abuse of the legal aid fund.”
She said that a family paying for a High Court judicial review could incur significant legal costs of between £15,000 and £20,000 to mount a legal challenge.
They would also run the risk of having to foot the bill for the other side’s costs if they were unsuccessful in their action.
She describes it as “a huge risk for any family”.
And she continued: “I imagine there will be all sorts of complaints about the tests and questions raised about whether they have been conducted fairly and consequently whether places have been allocated equitably by post primary schools.
“However, it seems likely that it would only be the more wealthy parents who could afford to challenge admissions decisions concerning their children in the courts.
“It is very clearly in the public interest to challenge the new tests on the basis that they will have such a massive impact on so many children. This could be put forward as a potential argument for legal aid to be granted in a particular case.
“However, I don't think the Legal Services Commission would be keen to open the floodgates to a large number of challenges using legal aid.”
Mrs Stevenson said she was also concerned about access arrangements for sitting the tests and special circumstances applications.
“There are tight deadlines that apply in relation to parental applications for modified access arrangements, which are arranged in advance of the applicant sitting the test and may include for example extra time in exams for children with severe dyslexia or large print format exam papers for children who are visually impaired.
“We have concerns relating to parents’/carers’ awareness of the deadlines that apply in respect of each examining body, particularly with regard to access to special arrangements for a child when sitting the tests. One examining authority’s deadline for this is tomorrow.
“Special circumstances may then be applied for after the child has sat the exams in recognition of a temporary illness, injury or other factor which may have impacted on the child’s performance at the time that he or she sat the exams.
“Again, there are tight deadlines and a very short period of time following the exam for parents to make representations on their child’s behalf. With one such authority the deadline is December 18th.
“We are also concerned that the timescales involved may make it difficult for parents to obtain evidence to support their applications, for example GP reports, a medical experts’ opinion, independent educational psychology assessments and reports.
“And we are concerned that sourcing independent reports is extremely costly and therefore children who are from socially or economically deprived backgrounds will not have a fair chance in securing special consideration of their exam paper in accordance with their recognized needs.”
Billy Young from the Association of Quality Education, which is setting entrance tests on behalf of 34 grammar schools, said: “AQE has taken legal advice at the highest level.
“All schools have been advised to get their own advice too and, so far as I know, each school has done that.
“Each school will also be getting advice about its entrance criteria and will have taken out insurance.”
One Co Antrim grammar principal, who asked not to be named, said last week: “A lot of grammar post-primary principals are approaching this time with concern and we are very concerned about the vulnerability to legal challenge. We also had this in the regulated environment but we were familiar with it.
“At the end of the day all we have is legal advice, with advice being the key word. We are not in a situation where there is case law and precedent.
“We are doing what we believe is reasonable but ultimately a court is going to define that one way or another.”
Allianz, which is understood to be providing the insurance policy for many schools here, did not respond to a request for further information and a comment.
* For legal advice on the transfer tests and admissions process, parents can contact the Children’s Law Centre’s freephone advice line on 0808 808 5678.
What it costs to take a case
* There is the potential for judicial reviews to be taken against schools who go ahead with new transfer exams against the advice of the Minister.
* It is only in exceptional cases that legal aid would be awarded to a child for a case relating to school admissions.
* It could cost a family between £15,000 and £20,000 to mount a legal challenge in the High Court.
* If they lose, they may also have to pay costs for the other side.
* Court cases could also be taken to challenge access arrangements for sitting the tests and special circumstances applications.
* Over 1,000 parents challenged 11-plus grades each year.
Many schools increase insurance to protect against possible action
One Grammar principal, who asked not to be named, confirmed that his school had taken out extra insurance.
“Voluntary grammar schools have their own insurers but controlled schools are insured through the education and library boards,” he said.
“Most controlled schools I know of are taking out some kind of insurance to cover the possibility that they could end up with a judicial review and the education board not willing to represent them.
“It would be hard for them to walk away from us because we are not acting against the law but we will not know if they will represent us until the first case comes up.
“I would estimate that the insurance policies are costing between £1,000 and £2,000. It is up to each individual school to decide where this money comes from but some may well be paying for it from their school budget.
“The cost of the insurance is not very high and this is because it is deemed to be fairly low risk as long as we act within the law and have sought legal advice on our criteria.
“However, we could still end up in court in six months’ time.”
JOE MOORE is managing partner at O'Reilly Stewart Solicitors in Belfast and specialises in complex high court civil action cases. His firm provides specialist advice in education law and advises many Northern Ireland schools - including many grammars.
He said: “The new school admissions system is an uncertain area and both students and schools are concerned about how it will work in practice and whether it will result in litigation.
“Those schools who have decided to use academic admissions criteria, should certainly have regard to the recent guidance issued by the department and many of these schools have already sought legal advice on the process.
“The scope for litigation is not clear at this stage. Although the appeals process should deal with situations where the published criteria are not applied properly, it is not inconceivable that someone may seek to challenge the legality of certain criteria employed in the selection process, in the High Court.”
NEILL MORTON, principal of Portora Royal School in Enniskillen, said: “We have not taken out extra insurance but have consulted with our insurer and with solicitors who have said as long as we carefully follow our procedure and rules we are covered by our current policy. It already protects us against actions being taken by staff or parents.
“My understanding is that the situation is the same for all GL Assessment schools in the Fermanagh area but it would be different for schools in the controlled sector.”
MARK LANGHAMMER, Northern Ireland director of the Association of Teachers and Lecturers, said there were over 1,000 parental challenges of 11-plus grades annually.
He warned: “It can be guaranteed that decisions to exclude children from particular schools this year will lead to legal challenges which could, potentially, be backed by the Equality Commission, the Children’s Commissioner or the Children’s Law Centre.”