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In year appeal - no spaces in area

(81 Posts)
Yonyon8 Fri 24-Jun-16 23:00:57

Hi everyone, I realise this is similar to a thread posted only this morning as well as others on here previously (apologies) but the particular circumstances don't quite fit and I'm really struggling, despite spending pretty much all week researching. Any help much appreciated.

Basically we are moving back to the area my husband and I grew up in - our parents and siblings etc all still live in the area and would share school collections/drop off for our daughter, who is currently in reception due to go into Y1 in sept. The problem is there are 3 schools in the immediate vicinity all of which are full for her year group (not for others) and the next closest 3 in the wider surroundings are also completely full for her year group. This is an unprecedented year and never before have all schools been full for a particular year group. The closest school potentially with a space (yet tbc) is 1.6m away into the countryside along windy and hilly single lane country roads with no pavements or lighting in places - this school only has 48 pupils in the whole school. The next closest is 3.7m away in a nearby village.

I have spoken to the council admissions dept and they said because they have verbally told me all schools in the area and surrounding are full, I can (and should) make my appeals immediately after submitting my applications for the closest 3 schools. I did this yesterday (submitted applications immediately followed by appeals). I also waived my right to notice of the hearing so as to speed up the hearing.

We are due to move in the 6 weeks holidays at some point and quite honestly, if we can't get a place at one of the 3 closest schools (any of the 3 we'd be happy with), then we would seriously rethink the move as a whole as we decided to move in the first place for a better area in which our children will grow up and go to school. It would therefore defeat the object if she had to go to a school in one of these neighbouring villages that I mentioned above.

I'll be honest admissions have not been a great deal of help practically speaking, nevertheless I submitted my appeals based on the argument my daughter should be an excepted pupil by virtue of the fact we have moved into the area and made an application in year (outside the usual admissions round) and no other school can offer her a place within a reasonable location. I used the rule about under 8's not being expected to walk more than 2m to school as a benchmark to say these 2 schools are not within a reasonable distance (because of sheer distance and/or access issues mentioned above re country roads etc).

Howver - technical question but should the ground for my appeal be based on the fact there has been a mistake (ie admissions or whoever didn't apply the exceptional circumstances and classify my daughter as an excepted child), or is the ground for my appeal actually that my child is an excepted child? I know that's a technical point but I'm trying to be as accurate as I can and don't want to lose on a technicality.

In terms of the practicalities, I see a lot of parents talk about waiting lists. None of the schools I have talked to have admitted to having a waiting list. They say they don't have them. In addition, admissions have given me conflicting information eg saying I should ask one of the 3 schools (who expects to have one place come up in sept) to phone me as and when that space comes up so I can call admissions and apply for that place. The head at that school said they shouldn't tell me that as they have 2 others contacting him about that same place and it's unfair for them to call anyone so it's a case of whichever family call him at the right time (ie straight after the other child gives notice of leaving) that will get the place. That's only one example but admissions generally don't seem to know what's going on in their schools, I actually had to push them to confirm which schools were the closest to my new address which had space instead of me calling each one myself (which I did for the closest 6 anyway).

The final point is that one of the 3 schools (my preferred one - nephew went there, my daughter went on many occasions for shows, sports days and to pick him up regularly, plus my cousin works there) the head there said it would be interesting to se how they dealt with my appeal since it's the first time the 6 schools in the wider area have all been completely full for this year (my nephews year only had 18 in!)

Can anyone offer any advice whatsoever? From what I've read it seems it might be dealt with slightly differently to a regular infant class size appeal made during normal admissions round, since it is in year and I am relying upon my daughter being an excepted child due to no school in reasonable distance.

I'm driving myself literally mad reading so many regulations, statutory instruments, guidance notes and mumsnet articles (luckily I'm a solicitor so I'm used to reading legal documents - but it's far more stressful when you're family's future is affected!)

Sorry it's so long but wanted to be as specific as I can.

Thanks in advance

prh47bridge Sat 25-Jun-16 00:23:06

The first point to make is that 2 miles is not some kind of limit for school allocations. If your daughter is allocated to a school further away than that it simply means the LA must provide free transport. The point at which the journey becomes unreasonable for a primary school child is when it is more than 45 minutes travelling in each direction. If the council provide a taxi or similar that can be quite a few miles.

Your argument is that there are no places available within a reasonable distance and therefore your daughter should be admitted as an excepted child. It isn't a mistake but you disagree with the LA's decision.

Don't overthink this. You won't lose on a technicality. Admission appeals aren't like that. It is not a court of law.

Schools are only required to operate a waiting list for the first term of Reception. After that they can choose not to bother. However, it gives rise to ridiculous situations such as the one you outline where it is pure luck who will get the place. Point out to the head that, with 3 families interested, it makes sense for them all to be notified when there is a vacancy. The admission criteria will then determine who gets the place which is much fairer.

Although it is an in year admissions case the infant class size rules will still apply. There is no difference in how the case will be dealt with other than the fact that you can argue that your daughter should be treated as excepted due to the lack of school places nearby - that argument is not available for cases in the normal admission round.

Yonyon8 Sat 25-Jun-16 07:48:43

Thanks for your reply. Sorry I should have explained, the 2 miles I referred to was at the suggestion of an education law helpline I called - they suggested that reasonable distance could be 2 miles as that is in the other guidelines as to suggest children under 8 shouldn't be expected to walk more than that so it could be used almost as an indicator of over 2 miles being unreasonable.

We would be walking our daughter to school - this is an important part of her routine and we would definitely not be happy sending our only just turned 5 year old on her own in a minibus or taxi.

The whole situation just seems ludicrous that there are no spaces whatsoever for the first time ever in the 6 schools in the wider location that can offer her a place and we would miss out for that reason. I'm sure amongst all children admitted there would be some which are from the next town or even further they just wanted to get their children into a school in this area because it is a nice area and with moving back into the area now with a child we are severely disadvantaged. Just seems so unfair but unfortunately I don't think being unfair comes into it. I'm not even appealing because we didn't get her into our first choice school like many do, we simply can't get her into any of the closest 6 so it's much more than that.

Must admit it's a very stressful situation and I'm very anxious about the whole thing. We want to cause the least amount of stress and disruption to our daughter as possible.

If anyone else can offer any nuggets of wisdom or experience of their own similar situation I would be so grateful.

mummytime Sat 25-Jun-16 08:17:42

prh47bridge - probably has far more experience of the admissions and appeals process than any helpline you phoned! I would ignore their advice at your peril.

Admissions for school are not based on: your child's routine, how happy you are to send them in a taxi/minibus (which will have been properly vetted not just some randoms).

It is going to be an infant class size appeal - you only tend to win those if there has been a mal-administration of the admissions process. You are very unlikely to win because of the school journey if it is less than 45 minutes.

Remember a help line probably wants to be paid by you, so has an interest in offering false hope. The admissions gurus here answer questions out of the goodness of their own hearts, and will give you advice which may well not be what you want to hear.

DetestableHerytike Sat 25-Jun-16 08:30:34


So what that people applied to the school from a town further away? At the time of reception admissions, they fitted the criteria for the place and got in. Their children are now settled, they have their own arrangements with friends and family just as you are planning.

In a sense, you have done similar - you are applying from further away (though I note you plan to move, you might not if you don't get a space).

So why is it unfair?

Anyway, as you note, fairness is irrelevant; there are objective rules.

PRH is the expert but I don't think you have much of a case to get in vs ICS rules and you may just have to ring the waiting list school every hour come September (it seems ridiculous that they aren't doing it by priority but be aware that if they did, they would base the distance on where you actually lived, not your plans to move)

Didiplanthis Sat 25-Jun-16 08:32:29

It does sound really stressful and very bad luck that the schools are full. The year my dd started school was the only year in the history of the school (>100 years !) my preferred school was over subscribed and we didn't get in and each year since it had been very undersubscribed. I agree with previous posters that I don't think you should pin any hopes on the 2 mile thing - that is just the distance the LA have to provide transport if they allocate a school further away - I know this as we get it - We get a milage allowance as there is no public transport also there is no safe walking route either - we are up fast rural roads with no footpath. I doubt they consider your preferences of how to get there in an appeal, it would be an ICS appeal - she would class as an excepted child - they are looked after children, SEN or one of a multiple birth when another multiple got a place. I think they will consider the village school 1.6 miles away suitable and have fulfilled their requirement to have offered a place. The waiting list thing sounds odd - they must have some kind of system for oversubscription - although it may not have been something they have needed before if it is a very atypical year. Good luck with all your appeals though.

Didiplanthis Sat 25-Jun-16 08:34:16

Sorry that was wouldn't be an excepted child !

Yonyon8 Sat 25-Jun-16 08:39:21

Right, some very blunt comments there. Not saying I wanted false hope or sugar coated advice but it just seems ridiculous.

In reality we will be moving during the six weeks holidays and if we do not get a space at one of the 6 local schools we will commute our daughter to her current school 35 minutes away everyday until we get her a space in one of those schools as I absolutely refuse to upset her by moving her to a brand new school come September which we have no intention of her staying at then moving her as soon as we can get a place at one of the 6 schools. We would just have to put up with the (hopefully) short term disruption for the sake of our daughter not going through unnecessary disruption. Surely someone will have some sense in this sort of situation?!

DetestableHerytike Sat 25-Jun-16 08:48:09

But what do you mean by sense, OP?

All the parents at these 6 schools (though I note that you might not move unless you get one of your preferred three) want them too. They are full. Unless someone moves away, you will not get a place. Looks like one space might come up soon in that way and it's worth you finding out how much general movement there is.

6 schools within 1.6 miles or less is loads.

In the meantime, the LA will offer you the 1.6mile school if the space arises and isn't obliged to find you an alternative if you turn it down.

If you are prepared to commute back for 2 years then that's fine (in year 3 ICS falls away so you have a better chance of getting in). But be realistic that is a very likely outcome.

DetestableHerytike Sat 25-Jun-16 08:57:52

I'm sorry to be harsh and it's a shame with timing that the schools are fuller than usual, but you do need to be realistic.

Yonyon8 Sat 25-Jun-16 09:49:05

I mean sense as in the fact that this is the first year there has been such demand - there has always been space in at least 1 of the 6 schools. It is more than a 1.6m radius.
The tiny school (48 pupils across all 7 year groups and family members went and hated it) is 1.7m away along tiny country windy hilly roads with no lighting or pavements. My daughter would be extremely upset at having to go to this school for a variety of reasons (not influenced by me) and I place a huge amount of weight on my daughters wishes and the impact on her. What happened to looking at whether more prejudice would be caused to one of the wchools accepting one more child to a class through the excepted child rule/fair access protocol or the prejudice to my child in not being admitted to a school within a reasonable distance of our new home close to friends etc and within reasonable access?? I'm sure the prejudice to my child is far greater. I have also spoken to senior teachers and they have confirmed that the difference between teaching a class size of 30 or 31 is that there is no difference. They still teach the same curriculum and deliver the same teaching methods (came from their own mouth, not mine). My child is currently in a class of 31 with one child being an excepted child and there is no problems at all on her class or no playground politics as a result of there being 1 more child.

I didn't post on here to get into a debate, nor did I expect to have all thoroughly positive responses. I was hoping for some helpful comments about how I could argue for my child. At the end of the day I'm just doing what in sure most of you would do. And again, I'm not disgruntled because I can't get her into an 'outstanding' school, just a school somewhere close to where we are moving which I don't think is too much to expect.

If anyone has any other helpful comments that may positively help my appeal (which I am still going to go through despite your comments) I would be grateful.

PatriciaHolm Sat 25-Jun-16 10:39:26

The "more prejudice to the school" argument doesn't apply for an individual child at ICS unless it becomes clear at the first stage of the appeal that it's not actually ICS (eg questions to the admissions authority reveal the school has a spare teacher floating around- unlikely).

The only grounds you can win on are that the admissions criteria were illegal and cost you a place; the admissions criteria were incorrectly applied (say they measured your distance from school incorrectly), or the decision not to admit is legally perverse.

What the LEA must do is find you a place. They do have the power to order a school to go over PAN through the fair access protocol, but that is only likely to be invoked if there are no schools within about 45 minutes travel time that can take your daughter. Given you don't want the place until September, they won't activate FAP until then as who knows what will happen over the summer in terms of places arising. And even then the school could be no nearer than the one you already have.

There is always a chance you will get a sympathetic panel, but Im sorry, I think your chances are very small (I sit on appeals panels).

lougle Sat 25-Jun-16 10:44:13

I don't think people are trying to put you off, but you need to realise that prejudice goes out the window in an ICS appeal. It's irrelevant.

As for not being happy to use's just tough. My DD has SN and had to have a SN minibus from the age of 4 because her nearest suitable school is 10 miles away. It's just the way it is.

Cantsleepwontsleep123 Sat 25-Jun-16 10:50:10

We did this move last year
They offered us a school 4 miles away
We were offered a taxi service for our son ( then aged 4 as this was for reception )
I refused the school and stayed on waiting lists.
Luckily a place came up in October for him at our local school however I do have freiend who did the same as you, but did end up commuting all the way through to year 3 when they then won on appeal.
Honestly, they won't care if your daughter likes the dark windy road or not.
You've decided to move and they have offered you a school - end of sad

Yonyon8 Sat 25-Jun-16 10:55:02

PatriciaHolm please can I ask in relation to your second paragraph - which of these grounds would our appeal fit into - ie arguing the only thing I can that our daughter is an excepted child due to no school within reasonable distance??

As far as I'm aware the ground re administrative error such as calculating distance incorrectly etc would not apply since we are making an in year appeal not within normal admissions round therefore we weren't (and couldn't be) considered along with all other children who applied for a reception place back at the start of 2015 for their child to start reception that September? Sorry if I'm not understanding correctly just need to ensure I do understand for our hearing and have cited the correct ground(s) for appeal.

prh47bridge Sat 25-Jun-16 11:22:19

that is in the other guidelines as to suggest children under 8 shouldn't be expected to walk more than that so it could be used almost as an indicator of over 2 miles being unreasonable

To be precise, the law specifies that LAs must provide free transport for any child under the age of 8 allocated (as opposed to the parents choosing) a school which is more than 2 miles walking distance from home. I have lost count of the number of parents who have tried to use this to argue that allocating a school more than 2 miles from home is unreasonable. I have yet to come across an appeal panel that accepts this argument. I would treat any advice from a helpline that suggests you can successfully argue that 2 miles is too far with great caution.

The 45 minutes figure I gave comes from the government's Home to School Travel and Transport Guidance which states, "Best practice suggests that the maximum each way length of journey for a child of primary school age to be 45 minutes and for secondary school age 75 minutes, but these should be regarded as the maximum". Most appeal panels accept this guidance as authoritative and, other than in special cases (SEN or disabilities, for example) will only regard a journey as unreasonable if it is longer than this.

Saying that you intend to walk your daughter to school won't change this. Indeed, it is likely to hinder rather than help your case. The panel will feel that you are trying to blackmail them by saying that you won't accept free transport and therefore the distance is unreasonable. Even if they accept that you mean will and aren't trying to force the issue, they simply cannot take your desire to walk your daughter to school into account.

Surely someone will have some sense in this sort of situation

I'm not sure what you think is sense. The local schools are full. It doesn't matter why they are full. The fact is they are. Since there is a legal limit on infant class sizes they cannot make space for your daughter other than in specific circumstances. It does not sound like those apply here. So your plan to commute to your daughter's current school until a place becomes available is sensible.

I would still recommend going ahead with your appeal. You never know. Something may emerge in the hearing that changes the outcome or you may get a panel that is willing to bend the rules for you. But you need to be realistic.

DetestableHerytike Sat 25-Jun-16 11:41:45

OP, you are a lawyer (as is at least one of the experts, not me, who has replied)

You must sometimes be in a position of advising clients that their case is very unlikely to succeed or that their common sense interpretation of the law is unfortunately not in line with one the courts might make.

I agree it's worth trying as you never know, but do think hard about how long you could manage the 35 minute commute to your current school (which of course is within the 45 minute reasonableness test prh mentioned). If you haven't yet committed to moving, might it be worth staying where you are until your DD is going into year 3?

DetestableHerytike Sat 25-Jun-16 11:45:10

Sorry, when you said there was a school that you felt was too far away at 1.6miles (windy road, 48 children school), I assumed the other six were closer.

DetestableHerytike Sat 25-Jun-16 11:52:00

Patricia, prh - as this is in year and the op has waived her right to notice, is the appeal likely to be held before the summer holiday?

Yonyon8 Sat 25-Jun-16 12:21:35

I think that the issue of the LA providing transport is an entirely separate matter here. The exception to the 30 kids per class rule which I'm relying on here states that the child moved to the area in year and there are no places within a reasonable distance. It does not go on to say ...and the LA is unable to offer suitable transport. If those drafting this legislation would have intended for it to be relevant to this exception they would have included it as such. The fact they didn't speaks volumes.

Also, please don't try and tell me That adding 1 more child to a class of 30 makes a material difference to the teaching. I don't believe that for one second. I realise there has to be a cap on class sizes but on exercising the exceptions there has to be an element of common sense. From personal experience the additional child which moved to my daughters current class as an excepted child made no difference whatsoever to the staff resources or teaching. I have asked this question of her school.

As stated previously I would be grateful
For positive comments and advice as I know people have previously succeeded.

DetestableHerytike Sat 25-Jun-16 12:37:30

You and I might think that adding one child makes no difference to the teaching, but that isn't what the law states. It's not an argument the panel can accept unless

Tbh, if the school that might have a space in September had been allowed to take that view, the two other families waiting for the space might have joined in reception, making the class size 32 already!

I am making positive suggestions that I think might be more workable, like postponing the move. Sorry that they aren't what you want to hear.

DetestableHerytike Sat 25-Jun-16 12:39:04

...unless the reason for the exception is, well, exceptional, like previously looked after child.

<sorry, didn't finish my sentence above>

lougle Sat 25-Jun-16 12:44:33

I think you are missing a fundamental truth here, and as you are a lawyer I can only assume it is because you are so emotionally invested that you are overlooking it. It doesn't matter if the class in question could comfortably cope with another one, two or even three children. Hey, the teacher may have some really cool games they'd like to play that work best with 35 children. The fact is that the is a legal limit on infant class sizes of 30 children. They are not allowed to exceed that limit under any circumstances unless the child meets the criteria for exception. Yours does not.

So no matter how much you think your child deserves a place, you can't expect to get a place on the grounds of prejudice because this is not a prejudice appeal. You can't expect to get a place because you don't like transport arrangements.

meditrina Sat 25-Jun-16 12:52:46

"Also, please don't try and tell me That adding 1 more child to a class of 30 makes a material difference to the teachin"

No one is saying that. They are saying that it is irrelevant to appeals under ICS.

"It does not go on to say ...and the LA is unable to offer suitable transport."

Your LA has not said it is unable to provide suitable transport. You do not wish to have your DC use the totally normal options for free transport. That is not the same thing, and not a winning argument.

Stopyourmessingaround Sat 25-Jun-16 12:53:22

Unfortunately, as others have said, this appeal, and the appeal panel, is limited by the rules on ICS so there isn't really much to positively comment on. This is why you are not getting the 'positive' comments you are hoping for. Unfortunately your child is not excepted, and fair access protocol cannot be triggered, because there are places within a reasonable distance. Our perception, as parents, of a reasonable distance is not the same as a local authority's/governments. We were faced with the same situation going into year 1 and our allocated school was 40min taxi drive away (deemed perfectly acceptable by the council for a five year old to face on her own but not by us). I've recently gone to appeal twice for KS2 and would strongly advise that you go in fully acknowledging, rather than trying to fight, the rules by which the appeal panel have to abide. Any argument of your child being an excepted child etc when they are not will only get the panel members' backs up. I know it's not the advice you want but I think your best and only hope is, given the circumstances of three other families vying for a place, to put pressure on the school/local authority to start a waiting list based on admissions criteria and hope that you're top of the list. I know it's two years away but if you're still in the same situation at the end of year 2 then your chances of appeal are so much greater.

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