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Appeals, am I reading this wrong?

(64 Posts)
chopchopquick Wed 18-May-11 23:04:10

Ladies

I appreciate you have had a fair share of questions regarding primary appeals but speaking to the LEA is like banging my head against a brick wall and I need your help as I am not sure if I am making sense of all of this. I will try to keep it short but here is the story................

We applied for three schools for DD in January before the deadline. We knew we would be moving at the end of February and selected schools in the new area. Just as an FYI our move was not out of choice, I was made redundant last year, we fell behind with a mortgage and our home was repossessed, we are now facing bankruptcy. I sent the signed tenancy agreement of the new address to the LEA on 04th Feb stating we would be moving on 02 March. The LEA did not start the allocation process until 11th Feb, after we had sent in proof of the new address but we were advised that the 02 March move date would be 5 days too late to be considered at the new address. Seemed crazy as we had already proved our moved.

We then didn't get allocated any of out three choices and got allocated a school in the old area 15 miles away. We are on waiting lists at position 7,4 and 19 for the three nearest schools. We have been told to consider other schools but the schools in the local area but there is only one other school that is a viable option (although children behind in maths) is still over a mile away which is just about walking distance with a 4year old and 2year old so we are now reapplying. We have been advised that there is only one place at this school and they know of other parents applying so we may not get it anyway and still need to look at other schools but the only other schools that have places are too far for DH to travel as he does not drive (medical grounds), I have managed to get a new job but I am out of the house 14hrs a day. The next nearest school is a 30 minute bus journey away, not allowing for traffic. The other school is still a train ride away, faith school with waiting list. DS is due to start nursery in September and so DH potentially could have to do this bus journey 6 times a day as DS will be doing half days, that or we get a nursery closer to home but then he will always be at least 30mins late for a three hour session. I understand that this won't really be taken into account as nursery is not compulsory. Not only this, given our financial situation we could not afford public transport, it is a luxury, we literally have to account and budget for every penny and we need a school that is walking distance.

Therefore, I honestly feel that the three schools we are wait listed for and the other school that is over a mile away are our only real options so I really feel I am stuck in limbo. The LEA said we don't qualify for school transport as we are not on benefits.

We are appealing as a last hope of being able to get a reasonable/realistic school place for DD but the class size limit rule makes things very difficult but I have to try for DD as I am honestly not sure what alternative we have. I have been reading the Government Schools Admissions Codes 2010 which I found on the Department for Education website. I have found something that I think maybe applicable to our situation but I have got myself into such a panic over the whole situation that I am not sure if I am understanding it correctly. The section says:

2.63 The class size legislation makes allowance for the entry of an additional child in very limited circumstances where not to admit the child would be prejudicial to his or her interests (‘excepted pupils’). However, every effort must be made to keep over large classes to a minimum. These circumstances are where:

b) children move into the area outside the normal admissions round for whom there is no other available school within reasonable distance (admission authorities must check with local authorities before determining that a child falls into this category);

Is this saying that when people move into the area and there are no schools available then the school must take on an extra pupil or is it saying the opposite and that the maximum class size rule still applies even if there are no other school places available?

If it is saying the former does this apply to our situation or am I just clutching at straws?

Thank you for following, I would really appreciate any feedback.

prh47bridge Wed 18-May-11 23:50:56

Firstly, the LA are talking rubbish about transport. If they give you a place at a school which is more than 2 miles walking distance from your home they must provide free transport unless there is a suitable school with places less than 2 miles from your home. Whether or not you are on benefits is irrelevant.

Before getting in to the ins and outs of 2.63, the first question is whether the LA has complied with its own admission arrangements. Can you tell us which LA we are talking about here? PM me if you don't feel comfortable posting that information publicly. Whatever their arrangements say, I can see no justification for allocating a place based on your old address when you had provided evidence of your new address. I would have expected them to use your new address, possibly treating you as a late application. That may not have got you into your preferred schools but it should at least have got you something closer to home.

What 2.63 is saying is that if you move into the area and there are no places available within a reasonable distance they can breach the infant class size limit to admit your child to a local school. That doesn't necessarily mean it will be the school you want, of course. In this situation the LA should allocate you a place at the nearest school best able to handle an additional pupil. The problem is that there is no definition of "reasonable distance".

PanelMember Thu 19-May-11 00:13:09

Your first reading is right. A pupil can be admitted as an excepted pupil (ie as an exception to the class size regulations, so the 31st pupil) if they have moved into the area late (ie after the usual admissions round) and there is no other suitable place nearby.

I am not at all sure, though, that this applies to you, as you moved to your new address during the admissions round, not after it. There are two sets of questions which your situation raises for me (and Admission and Prh47bridge may spot others that I've missed).

The first is about dates. It is not unusual for LEAs to 'freeze' the system between applications being received and being considered (on the grounds that they'll never make any decisions if they have to keep revisiting applications where new evidence has been submitted). This can mean (depending on dates) that when they submit evidence of their new address, families who move house are treated as late applicants. You might therefore want to check whether your LEA 'freezes' applications in this way - this might be mentioned in their starting school booklet - and whether you have been treated as a late applicant. If your application has not been handled in the way that the booklet says it will/should be, you may have grounds for appeal on that basis.

The second is about evidence. Even if (according to your LEA's published procedures) your change of address should have been accepted on the date you submitted it, there is the further question of whether a tenancy agreement is enough. Some LEAs (especially those where people have made fraudulent applications in the past) may take the view that a tenancy agreement does not prove that you are actually living in the property and may demand to see utility bills etc. This may be why they were not willing to accept your new address before you were actually living there. Again, you need to check whether what the LEA did matches what they say they will do in the school admissions booklet (or other published material).

Clearly, you are not in a good situation, but most of the things that you mention - distance to other schools, younger child's nursery place - aren't relevant to an infant class size appeal. Perhaps your strongest basis for appeal (assuming that you can't pinpoint any procedural errors) is your husband's ill health - there is a provision in the Admissions Code for priority to be given where the child or the parent has a disability which would make travel to another school difficult. The difference (I think) is that a procedural error or maladministration may get you a place on appeal, whereas providing evidence of disability or health need may move you into a higher category on the waiting list without necessarily getting you an immediate place.

chopchopquick Thu 19-May-11 01:30:33

Hi PanelMember

Thank you for your reply I very much appreciate any help with this as I feel like my hands are tied and I am not sure what to do about it. Although it maybe that there is a little hope that I could get one of the three choices or even the fourth nearest. I honestly don't mind which as long as its local, e.g walking distance.

When I spoke to the LEA I actually telephoned as they had sent the letter acknowledging our appeal to our old address, luckily our mail is redirected. When I questioned had they even changed our address I was informed that they changed our address on their system on 11th April so this would have been after the allocation day on 04th April when we found out we had been allocated a school at the old address. The LEA timetable:
15th Jan - On time applications
11th Feb - Late Applications
11th Feb - Allocation run
04th April - Allocation day

So I am figuring they did freeze the application but didn't take it as a late either, (possibly not accepting the tenancy agreement as evidence) as they only changed the address on 11th April? Does this have any implications around 2.63, although as Prh47bridge has mentioned there are unknowns here regarding "reasonable distance"?

My husbands medical condition is in relation to his eyesight, even corrected with glasses his sight is not at the minimum level to be able to drive so he is not disabled as such and he has never declared his sight problems as he copes fine with day to day life which may not help us in the situation but he certainly is not able to drive so I suppose it depends if the LEA take his prescription level into account rather than being registered as partially sighted etc but worth investigating.

I would be most grateful if you can offer any further advice around the timings of the application and how this could place us now.

prh47bridge Thu 19-May-11 11:13:52

Ok, I have taken a look at their published information and it states that 11th February is the last date to "notify us of a change of address and for that address to be taken into account for allocation". It then refers you to a separate book which states that the completion date or tenancy start date must be no later than 11th February for the new address to be used. If it is after that they will use your old address but send the offer to your new address. So they have complied with their admission arrangements.

On the evidence question, they require both the tenancy agreement and proof that you and your child are resident at the new address. The nature of this proof is unspecified which is unhelpful.

I am somewhat surprised at the LA's approach. Most would have used your new address but treated your application as late. That seems far more sensible than allocating a place at a school 15 miles from your home. You would have been in a better position if you had applied after 11th February in that, although your application would have been treated as late and you probably wouldn't have got in to any of your preferences, you would have allocated a place based on your new address.

Unfortunately that doesn't really give you any basis for an appeal for your preferred schools. Even if you can convince an appeal panel that the LA has acted unreasonably, you would also have to convince them that a reasonable LA would have given you a place at the appeal school. If the school is full with people who applied on time I don't think a reasonable LA would have given you a place there.

You are in a very difficult position and the way the LA deals with people moving around the area doesn't help. If I understand correctly, you are applying for a local school which has a place. If you fail to get it I would appeal and argue that a reasonable LA would have treated you as a late applicant rather than allocating a school 15 miles away in which case you would have been given this place in the initial admissions round.

I would also remind the LA that, as they have allocated a school 15 miles away, they are required to provide free transport regardless of whether or not you are on benefits. Refer them to the first paragraph of their own "Home to School Transport Policy September 2011" which states, "Free transport will be provided for children attending their nearest suitable school within X, where the distance from home to school is over the statutory walking distance. For transport purposes the nearest suitable school is identified by considering whether the child would have qualified for a place at the school." No mention of needing to be on benefits. Indeed, if they try to refuse transport because you are not on benefits they will be breaking the law.

PanelMember Thu 19-May-11 11:41:14

This isn't an aspect of appeals with which I've had much contact, so these are my very tentative views.

It is odd that the LEA sent your appeal acknowledgement to your old address. I would press them to provide evidence that they had updated your address on the system - they should be able to provide a screen print.

I don't quite understand how (if at all) the late applications are differentiated from the in-time applications if there is only one allocation run. Or are there 2 runs on the same day?

You need to pin down the LEA on when your application was processed (in either allocation run or as a one-off at some later date) and whether it was classed as in-time at old address, late at new address or something else.

You need to pin down the LEA on why it took so long to update your address - was this because a tenancy agreement for a future date isn't sufficient? If not, what was the reason?

All these things need to be confirmed in writing.

I think it is at least arguable that, if the LEA held off from considering your application until you had moved into the new property, ie after the late applications had been processed, that they have in effect treated you as if you moved into the area outside the normal allocations round and para 2.63 does now apply to you. That argument isn't watertight and an appeal panel may not be persuaded, but it may be worth a go.

I was using 'disability' as a shorthand for 'medical problem which impacts on a parent's ability to get the child to school'. Sorry for any confusion. The school admissions code says

2.28 Admission authorities must not use this criterion to give a child a lower priority in obtaining a place at the school, but it is acceptable to give higher priority to children or families where there is a social or medical need (for example, where one or both parents or the child has a disability that may make travel to a school further away more difficult).

It seems to me that your dh being unable to drive may place you in that category. The difficulty may be that (if he is otherwise able to get about) the LEA may take the view that he could take your child to school by bus. It would then be up to you to demonstrate why that would not be feasible (although, again, this would have to be about why your dh in particular couldn't do it rather than the general inconvenience of a 30 minute bus ride). Much will also depend on what your LEA's admissions criteria say about social and medical needs.

What does Prh47bridge think?

PanelMember Thu 19-May-11 12:04:49

I got called away so had written all that before I saw Prh's post.

The fact that - to judge by the information Prh has unearthed - the LEA treated you as an in-time application at your old address and has complied with its (illogical but nevertheless as published) procedures does not help you. As Prh says, I think the fact that the LEA insisted on treating you as living at your old address could be said to be perverse and this might be your strongest card at any appeal. I think you could try to argue that the LEA can't have it both ways and by effectively making you apply out of synch with the admissions round from your new address, they have effectively put you in a para 2.63 situation.

admission Thu 19-May-11 12:17:31

I would have to agree with PRH that you have unfortunately been trapped by the LA's admission arrangements. The date you informed the LA was before the cut-off date for taking into consideration a new address, but the detail of when the tenancy agreements have got to run from precludes you from being considered in the "on time" applicants.

I suppose you could argue that this is unreasonable of the LA, but legally unreasonable in this context has to be perverse and I do not believe that most panels would consider it perverse. Not very helpful at all but not perverse.

I agree with PRH that you should have been treated as a late application with the new address rather than be allocated a school place based on the old address, that is just rubbing salt into the wounds. Again I not sure how a panel would view this, but it certainly worth appealing on this basis.

I do not believe that 2.63 has any relevance to your situation as it is specific to being outside normal admission arrangements, that is mid year. Your admission is within the normal admission arrangements timetable which go through to september, so please forget this and concentrate on what you can do.

I would speak to the LA admission office and confirm whether the LA admission criteria includes medical needs criteria. If there is ask them to consider you under that category as your husband's eye issues mean that your child has to go to a school within walking distance. I have to say that it is a relatively weak arguement because certainly my LA would say that you can do the school run therefore it is not compelling enough to put you in that category, but other LAs do have much more relaxed views on this criteria, especially as you being the main breadwinner in the family. It is worth a shot, as if they did you would automatically be near the top of the waiting lists.

You can also use your husbands eye sight as an issue at any appeal as to why a school within walking distance is appropriate, whilst saying that busrides etc are too far. What you cannot do is argue that because of your husband's poor eye sight that you should have been considered previously under a higher criteria, as the LA did not know about it.

I would actually appeal for all the schools even if they are infant class size regs and tell them the tale of you being disadvantaged by the system (the dates of the tenancy agreement). Most panels are going to have a lot of sympathy for you unfortunate situation and whilst they should really not admit under the circumstances, you never know what a panel might consider unreasonable.

chopchopquick Thu 19-May-11 12:32:05

Hi

I am still here and following this and I am making a list of points I need to look into, I am work so its a bit awkward for me to reposond.

Once again I do appreciate your help in this very frustrating and confusing situation

chopchopquick Thu 19-May-11 14:26:42

Just reading through your responses quickly again and yes it does seem as thou we have fallen into a grey area regarding our move. I am still not sure if we were even considered as a late appliacation as the deadline for the late applications is 11th Feb but we didn't actually move until 02 March so still not 100% sure exactly how we were processed. On time old address as they didn't change address on system until 11th April, clearly after the offers had been sent out. I need to speak to LEA. Apologies if you have already tried to explain this to me but I am just trying to process the information and how I need to best present it at an appeal. Bit worried I will not come across that well and then be blinded by rules etc.

Regarding the eyesight I did speak to someone at LEA this morning and whilst she was helpful she is going to get back to as his sight might not be good grounds as he travels to work at weekends on trains and it may look as thou we are wanting it both ways. We are not, we just want a local school place for our daughter.

prh47bridge Thu 19-May-11 15:01:19

Based on what it says in their admission arrangements I believe you should have been processed as an on time application from the old address. You were clearly processed as living at the old address otherwise they would not have allocated a school 15 miles away (I hope!).

And I agree with Admission that a sympathetic panel may decide to admit your daughter regardless of the regulations given that you have clearly been trapped by the LA's system. I would make it clear to the panel that, given the way the LA works, you would have had a better result if you hadn't bothered to submit your application until after you'd moved because you would then have been treated as a late application from your new address and would have been allocated a place at a school that was reasonably nearby, instead of which you have been given a place at a school that is miles away and are being told you have little chance of getting in to a local school. You have actually been penalised for applying on time.

PanelMember Thu 19-May-11 15:34:47

I agree very Prh's remarks above. It is because as an in-time applicant you have been left in a worse position than you would have been as a late applicant that I think you can argue (per my post of 12.04) that the system has treated you unfairly and perversely.

Where I part company with Admission is that I still think you can argue that para 2.63 applies. Because of the LEA's perverse insistence that you should be regarded as living at an address you had told them you were leaving, and then allocating you a school 15 miles away, you are effectively having to apply afresh now for any remaining places in nearby schools. I concede that this argument is far from watertight, but (added to any others) it may persuade an appeal panel that your child deserves to be given a place now.

chopchopquick Thu 19-May-11 17:57:40

Thank you everyone I am starting to clear my head and focus on how to address this now. I have to at least give things a try and hope that I am able to put things across well and that the panel are able to understand that we tried to follow the rules but we were disadvantaged in doing so and hence led to our situation now. Of course I also realise that some of this is dependent on how understanding the panel are on the day ..... Hope for the best and expect the worst.

Thank goodness for people like you who are able to offer advice otherwise I wouldn't have a clue where to start. I maybe back with more questions but I am happy to keep you updated on the outcome.

chopchopquick Fri 20-May-11 14:45:38

I am back to pick your brains!!

Honestly not sure if this has any relevance to our appeal or even if its good or bad but just had a call from LA saying that they are going to take away the offer of the allocated school as they realise that it's too far away and they need to offer the place to another child that is on the waiting list for that school. Fab news for that child and to be very honest but now we are without a place at all.

Like I said not sure if it's relevant but seems unprofessional given they haven't offered another school.

chatee Fri 20-May-11 14:52:47

and they'll be taking that place away to avoid the lea having to give transport- do not allow them to give up place without a written placement at a school you agree with

PanelMember Fri 20-May-11 15:02:37

Sorry - this has to be very quick as I'm due somewhere else in 5 minutes.

The issue of when an LEA can withdraw a place has been covered at length on other threads - I'm sure you'll find them if you do an advanced search. The admissions code gives some examples of when a place can be withdrawn and your circumstances are not remotely close to any of them. Deciding on your behalf that the place is too far away is most definitely not a legitimate reason for withdrawing that place! On top of that there is the question of timing. Caselaw indicates that, even when the circumstances for withdrawing a place are there, the LEA only has 3 days in which to do it. After that, parents are entitled to rely on the offer of the place. Again, you should be able to find the reference number for thes relevant case on one of the other threads.

You would be within your rights to insist on keeping the place and using the LEA's free transport to get your child there until such time as you can get a place in a nearby school.

I understand that you may be happy to surrender the place - even though you are not obliged to - but bear in mind that not having a school place won't do anything to boost your chances at appeal.

prh47bridge Fri 20-May-11 15:36:34

Agree with PanelMember. They cannot withdraw the place offered. You are entitled to send your child to this school regardless of how far away you live. They cannot deny you that right. I would remind them that paragraph 1.50 of the Admissions Code states that there are only very limited circumstances in which an offer can be withdrawn. Tell them that as these circumstances do not apply you will not accept their decision to withdraw the offer previously made and if they do withdraw it you will appeal to have the place reinstated.

They've messed you around enough already. Leaving you without a place at all is just a further insult.

chopchopquick Fri 20-May-11 20:10:09

Thank you everyone again. I am going to re-read the thread about withdrawing an offer.

Will be interesting to see what the LA do next!!!

admission Fri 20-May-11 21:07:14

I think this is called horse trading, I'll give up the place you want if they find a place in a school that is satisfactory to me, are the words I think you need to use. But do not give up the place before they make a suitable offer as it is the only lever you have to get what you want.

Apart from anything else it will make a show stopper at appeal, they offered me a school 15 miles away, having been totally inflexible on being prepared to use my new address and then have the nerve to try and withdrew it illegally.

chopchopquick Fri 20-May-11 21:49:12

I now have another question. We have to now re-apply, deadline is today. We have been advised to change our preferences as we don't have a great chance of getting a place for the schools we are on the waiting list for, positions (1)7, (2)4, 3(19). Trouble is, as previously explained we are really restricted which schools we can apply for as all the local ones (with the exception of one) that are walking distance have waiting lists. One school that does have one place is 1.3 miles away, it is not my favourite school but we do need to consider it as 1.3 is walking distance but it would probably take the best part of thirty minutes one way with my DD(4) and DS(3, at the end of July). Ideally, if space permits, we would like DD and DS to go to the same nursery/school. Which means for the first year my husband would be doing the walk 6 times a day, which is quite a lot of coming and going. The LA did also tells us that we are not guaranteed the place as they know of other families applying as well, just depends on how near they are or other criteria, hence, they may get the allocation over us.

The other option that again is not exactly ideal as they already have a waiting list of 2 but is lower than the current lists is a school in the next town, 2.5miles away. Potentially this maybe a slightly easier journey in that we live next to the train station and the school is also by the train station. However, the train fare would be nearly £8 per day which we really can not afford, I know it may not seem that much to some people but it is too much for us. Question: if we put this as one of our preferences would the LA still cover the transport costs or does it only apply if you don't get any of your preferences so therefore they give you the nearest school and pay if it is over 2miles? Without being difficult this is not actually one of preferences as it is too far but we need to consider all options now we do not have a place at all.

I am still keen to apply for our first two original preferences despite the waiting lists as I actually don't know what alternatives to put because there are no real alternatives. I was going to replace the third choices as we are so far down the waiting list but I am not sure if I should pick the walking school or the train school. My initial thoughts are that we would choose the train school as despite the train I think it would be easier to get to but it really depends if the train fare would be covered.

Alternatively, don't change any of the preferences and hope that a lot of people come of the waiting list. That way if we did not get allocated any of them and we got the next nearest available school which I am sure would be over two miles as no where has spaces then the transport would be covered.

Any thoughts please.

This is driving me nuts!!!

prh47bridge Fri 20-May-11 23:25:16

To start with the transport question, they must provide free transport if the school is more than 2 miles walk away unless there is a place available at a school nearer to your home. That applies regardless of whether or not the school was one of your preferences.

I would be wary of changing your preferences. Given the amount they have messed you around so far, I wouldn't put it past the LA to remove you from the waiting lists as soon as they receive your new application. To be honest I'm not sure why they want a new application from you. They have your new address and your original application.

Personally I agree with Admission that you now have leverage. Make it clear that you know the rules. Quote paragraph 1.50 of the Admissions Code at them. Tell them that you look forward to putting your case before the appeal panel. I wouldn't be surprised if a place magically appears at one of the local schools. If they are stupid enough to actually let this go to appeal I would expect any panel to be horrified at the way you have been treated. They have penalised you for applying on time by allocating a school 15 miles away, withdrawn the offer illegally and left you with no place at any school for your daughter with no apparent plan to come up with a place. Appalling.

chopchopquick Fri 20-May-11 23:43:10

Thank you prh - I was actually about to log on and submit our application again with our three original preferences as I was scared it may complicate things further to change them and especially under duress.

Monday could be an interesting day.

admission Sat 21-May-11 20:57:14

Chopchop,
Appreciate the post saying that you have resubmitted the original preferences, It will be very interesting to see whether a place magically appears.
However if it does not I would be very concerned about the school involving a train journey, because even if it is the nearest school with a place, I suspect that the LA may not be very keen to pay the train fare. Most appeals for transport costs are around safe walking routes and I would suspect therefore that trains may not count. Before you decide to take that step I would very carefully check out the LAs view on transport costs.

chopchopquick Sat 21-May-11 22:04:28

Hi Admission

No, I must have confused you, the train school was not one of our original preferences but we were so far down the waiting list that it almost seemed a waste of a preference for the re-submission. We were only really considering the train school as it may have been easier to get to than another walking distance school that is the other side of town. We then discounted it as we were concerned that if we did get a place at the train school and didn't get the costs covered we knew we could not afford the train fare and couldn't take the risk. I got a little fed up in the end and stuck to my original preferences, all local schools under a mile away.

It does cross my mind if the LA will then re-instate the original offer which we don't really want but I will still appeal regardless and thankfully I actually have an email from the lady at the LA telling me they were withdrawing the offer so this could be useful.

I was also digging out my original paperwork to the LA telling telling them about the change of address etc. I had a letter to acknowledge the first time I sent over the tenancy agreement. I then had a phone call a week later to say that they knew we had sent "something" in but they had lost it and I had to re-send it on email. Of course, this is probably irrelevant to the case but plus the fact they again sent me a letter this week to my old address really makes me question their entire working practices.

Gosh, where would I be without the help of the people on this thread!!! I feel fortunate that I was able to come on here and seek out this help and I pitty the people that are in similar genuine appeal circumstances but just don't know where to turn and end up not bothering as they feel that situation is beyond them, its been awful.

puffylovett Sat 21-May-11 22:21:31

Hi chopchop
I'm subbing on to your thread, because we're in a similar situation and it's been a real eye opener for me. We haven't been badly treated by our LA like you, and we've actually been allocated a school in the town that we are moving to, but it's going to be 3 miles away from our actual new address (if we ever manage to get in there but that's another story in the Property section lol) so we're appealing for a place in the local school.
I don't fancy our chances at all, but the timing may be on our side as we'll be treated as a late applicant I think.

It's been possibly the most incredibly stressful situation ! Being stuck on the market for 2 years trying to sell. Having to make a judgment call on schools, not knowing where we would be living, then selling right after the 31st Jan, then finding a house and realising all the schools on our preference list were miles away ! then being allocated a school we didn't want, then finding out we wouldn't be moving as soon as we'd hoped.. my eyes are practically rolling in my head with stress and I've resorted to wine, but hoping it will work out in the end.

I hope your appeal goes well and you manage to get a place at your local school, it sounds like it would really help your situation smile

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