ICS appeal/ has anyone won on miscalculated route?

[ICSappeal18]

Hello everyone, I'm hoping that the good people on mumsnet might be able to offer some tips here.

We have an infant class size appeal coming up and we're appealing a place at a 1-form entry primary school on the grounds that the admissions authority didn't calculate the shortest safe walking route from our home to the school in question. They've calculated a route walking along main roads which places us further away than the last accepted child on distance.

Our case is that there is a council maintained, lit, surfaced footpath at the other side of our road which places us closer than 5 children accepted on distance, and as such, the council should have used this to calculate.

All the evidence/judgements online I've read states that Councils are only allowed to consider safety for walking to school, in terms of road safety. In this respect, it appears the admissions authority would be unable to claim that the footpath is unsafe. Also because it is a council maintained footpath, they can't claim that it is unknown.

Their own distance clause is worded, "safe walking distance from the home front door to the main entrance of the
school as calculated by the Local Authority)"

I'm worried that even though we feel that our case is very strong, the admissions officer might come up with some other excuse which denies our appeal.

Has anyone here won a similar appeal or sat on a panel and can offer us any tips, arguments or advice?

I was wondering whether there are any laws or judgments which force LAs to update their routes? I've read some cases online where the LAs have said that they will add such footpaths to future routes, but that would be completely unhelpful for us, so what I want to try and do is prove that they know about it and that they were legally responsible to include it.

They use GIS data. Is there any legal requirement to keep this updated?

It seems grossly unfair to expect first-time parents to think that they should contact an LA before application deadlines to ask if they are using x or y footpath.

Any help would be greatly appreciated!
With thanks

[prh47bridge]

If they simply say "safe walking distance" I would expect the panel to agree that this footpath should have been used. It is clearly safe from the description you give. Contrary to whatever you have seen online, they can argue that a path is unsafe if, for example, it is poorly maintained or unlit but that doesn't apply here.

Most LAs using the shortest safe walking route to measure distance say rather more about what routes are allowed. If, for example, there is a footnote saying that they only look at routes along roads I would expect you to lose. So the big question is what routes they say are permissible. If you are unsure, feel free to PM me with the name of the council involved and I will take a look.

Don't worry about laws, judgements or legal responsibility. An admissions appeal is not a court of law. The only question the appeal panel will look at is whether, under the published admission arrangements, the council should have measured along this footpath.

Note that, if the panel finds that the footpath should have been used, they will want all the distances remeasured taking this footpath into account to find out if you would have got a place. It is possible that this footpath also brings other people closer to the school. You should only win your appeal if you would have got a place had this footpath been considered when calculating distances for all applicants.

[Wooddie]

I have been on a number of appeal panels where the walking route has been successfully challenged and won with the type of footpath you are describing.

You may find the councils home school transport policy helpful as it describes what is a reasonable and same walking route for the allocation of passes.

I suspect that the issue is that the footpath has not been added to the measurement software which the council uses. I understand it is a manual process so some councils only do this annually which does not help appellants. It may be because the council education team is unaware of the path as it has not been an issue in school allocations before.

In addition to convincing the panel that the safe walking route should include the path, the panel also needs to work out if you have missed out on a place. This may not be the case if other families are also affected by the failure to use the path in measurement and enough live closer.

Also very helpful if tis raised well ahead of the appeal so all the information for the Local Authority is available on the day of the appeal.

[ICSappeal18]

Thank you both for your messages and ideas.

The relevant transport policy wording is here:

c) Measuring Home to School Distances
The distance is measured from home to the school gate nearest to home by the shortest available walking route measured using the Sefton computerised mapping system.
In order to accurately measure Home to school distances, Sefton Local Authority uses a computerised measuring system called “SCANA” which incorporates Map Information
and uses Local Land and Property Gazetteer data . The system uses recognised routes known to the Local Authority at the time of measurement, which are considered suitable of being used by a child ( accompanied as necessary by a parent/carer)
The Local Authority uses shortest walking route as a method of measuring distance to the nearest qualifying school in order to allocate school places and to issue travel passes to eligible children.
The term ‘walking route’ is a complicated one. It is the shortest avai
lable route on foot from the pupils home, measured from the property’s address point to the nearest school gate. It is not
necessarily the nearest route by car, road or bus. Websites such as Google and AA Route Planner may give driving and walking distances, however none of these websites measures home to school
distances by the definition that is used by the Local Authority.
When considering whether to pay transport costs, we will consider the age of the pupil and the nature of the route or alternative routes, along which he or she could reasonably be expected to walk to school, accompanied as necessary by a parent or guardian. If we consider that a child
cannot use a route on their own, we will take account of whether or not there were any circumstances, which prevented it being reasonably practical for the child to be accompanied.
However, we will normally consider a route which involves any of the following features as being
suitable for a child to use if he or she is accompanied by a parent or carer
.
1)
Crossing any main road (for example, a dual carriageway or trunk road) where there are one or more of the following:

A school crossing patrol

A pelican crossing

A pedestrian crossing

Traffic lights

A pedestrian footbridge

A subway

A police officer, traffic warden or other responsible adult (for example, a parent or teacher)
2)
As long as the road is maintained by the Local Authority; all unclassified roads (that is, roads
which are not A, B or C roads) are regarded as being safe to cross even if there are none of the facilities named in 1
3)
The presence of a pavement in a built-up or rural area
4)
The presence of street lighting on a route in a built-up or rural area
5)
As long as the area is maintained by the Local Authority; the use of appropriate passageways which are properly paved and lit
This policy applies throughout the year as public lighting is altered to meet the changes in daylight hours.
We will not normally consider a route which involves any of the following as suitable for a child to
use.

Any pathway not maintained by the Local Authority e.g. privately owned land

Paths on canal banks for a child of any age

Footpaths in rural areas will not be regarded as being safe without detailed investigation

A road system on the approach to a motorway

[ICSappeal18]

Also just to add, having scoured through the admissions 18-19 booklet, there is no reference to parents needing to question the admissions authority on whether a specific footpath is or is not included.

The footpath in question has

[ICSappeal18]

one street light in the middle of it and it runs along a train line. However, it has a very high steel fence and the council have already confirmed that they maintain it. I've submitted a FOI request for various infos such as how long they have maintained it for and what the maintenance schedule is. I'm thinking that they cannot therefore claim not to know about it.

Also, LA uses ROSPA (School Transport document) to determine safe walking routes. Under "Safety of Route", this includes:

"Pavements and footways" and the rest is to do with transport.

I found the detailed ROSPA "Assessment of Walked Routes to School" which lists all the cases which have set precedent and the correct guidance for a local council to assess a walkng route. This is as follows:

Points to Consider
The whole route from the child's home to the school should be assessed at a time children would normally be travelling to and from school. When assessing the safety of a potential walking route, the following points should be considered.

• When assessing the safety of an “available route”, only the potential risk created by traffic, the highway and topographical conditions should be considered (1).
• Each case must be considered on its own merits. Where possible the assessment should be carried out on foot.
Using on-line street imagery may indicate a route is hazardous, however a site survey may also be necessary. Even if it suggests a route is not hazardous a site survey must still be carried out.
Note: you should be aware of how old the imagery is as it may not show recent changes to the route.
• It is assumed that children are accompanied as necessary by a responsible parent or carer (2).
• A footway, roadside strip of reasonable width and condition, a public footpath or bridleway will all normally be assumed to provide an available route for that part of the journey (3).
• On a road with light traffic flow a verge that can be stepped on by a child and accompanying parent when traffic is passing can normally be assumed to provide an available route. This is known as a “step off” (4) .
• It is assumed that the road will be crossed to use a footway or road side strip (5).
• Many available routes may lie along roads that have neither a footway nor verge. On these roads the width of the carriageway, traffic speed and type of traffic (e.g. frequent long or heavy goods
vehicles) as well as visibility/sight lines that may be affected by sharp bends, high hedgerows or other obstructions must be considered. It is likely that if a route is found to be lacking in ‘step offs’
then it is also likely to have issues with adequate visibility – the features that affect the availability of ‘step offs’ often impact on visibility – hedges, gradients etc. However, there may be exceptions to this.
• Where roads need to be crossed, the availability of crossing facilities such as central refuges, pedestrian crossings or traffic signals should be taken into consideration. Where no crossing
facilities exist the risk assessment of the route should include consideration of each road crossing, bearing in mind traffic speed and flows, sight lines etc.
• The road casualty record along the route.
• A written record of the assessment should be kept.

[ICSappeal18]

So, according to the long ROSPA documentation, three main points here for summary as I see them:

1. Children are expected to be accoompanied by an adult. The adult is responsible for their safety.
   
2. Only road traffic is to be taken into account when assessing whether a route is dangerous
   
3. They provide a flowchart to assess a walking route. The very first option is: Is it a "Continuous Adequate Footway"? If yes - then the route must be classed a "non-hazardous walking route"

[ICSappeal18]

We haven't sent our documentation to the appeals panel yet as we are waiting for there's first. We have prepared it but don't want to be caught out by something we didn't know about. So as soon as we receive their submission, we will read it and either amend our own or send it immediately. I know some people on here have written that the LA conceded an error and offered them a place ahead of the appeal, but we feel that if we show them all our cards ahead of appeal, they might try and change their story.

The school allocated was one we always said no-way to i.e. pollution, bullying, lower aspirations etc. so our little one is enrolled in the next available school which is nearly 7 miles away. The school we are appealing is the closest school to our house.

[prh47bridge]

The critical bit is that they use routes that are "known to the Local Authority at the time of measurement, that are considered capable of being used by a child (accompanied as necessary by a parent or guardian)". As they maintain this footpath they can't argue that they don't know about it. Given that it is surfaced and lit an argument that it can't be used by a child won't fly. So my view, based on the information you have given, is that you should win your argument that they should have used this footpath. As per previous posts, that means they will need to remeasure all applicants taking this path into account to figure out whether or not you should have got a place.

[Wooddie]

Once you have the information from the Admissions Authority, it is important that you raise the issue ahead of the hearing so that it is possible for the check whether or not you should have got a place to be done. Their case should say how the places were allocated and the Panel will have that documentation. Appeals panels make their decision as soon as the last hearing has finished and need to have all the information they need. An adjournment of the hearing to get it can cause lengthy delays which affects other appellants and the panel etc and is best avoided if possible.

[PatriciaHolm]

I can't add much to the above, it does sound as if this path should be included.

However, I would suggest raising it as a query before appeal. if you wait till appeal, you would need to raise it at part one (the schools general case) as it is relevant to all Appellants. If the panel agree it should have been included then the appeals will need to be adjourned to enable the council to recalculate all applicants distances, not just yours. This could easily allow other people as well as you to have a shorter distance and you can only win at appeal on these grounds if you were denied a place because of the error. If it turns out they should have used the path but it mean now there are also others with a shorter distance and you still wouldn't have a place, you won't win. It's not something the panel are going to be able to determine on their own.

[ICSappeal18]

Thank you all for our support and advice. I'm busy preparing our statement and will inform the LA this week ahead of submitting it, that we are contesting the footpath and that they might want to recalculate using it ahead of the appeal.

[ICSappeal18]

YOUR support and advice...I meant

[admission]

You do need to make sure that you submit your evidence well in advice of the hearing. There is no advantage in holding off to see what the LA are saying as you can always contest what they have said at the appeal hearing.
What you need to be asking the LA to produce now is the safe walking route that they have used to come up with the measurement. That may either then lead to you asking the LA to measure via what you consider the nearer safe walking route or if they are using the same walking route as you, how exactly have they got to their figure.
Having been involved in plenty of similar cases in the past I would also say that a key document for you is a photograph showing the street light and the paved area so that there is no possibility of the LA saying they do not believe it is a safe walking route. A Google map showing the proposed route and where you know others who got a place have a home will help to convince the panel that there has been a mistake made.

[ICSappeal18]

I just wanted to update the group here as to what happened and thank everyone for their advice.

I sent the LA an e-mail saying that as we were preparing the appeal, I wanted them to be aware that they had given no reason for excluding the footpath and that it fulfilled every criteria under all the publicly available guidance. I indicated that the likely outcome of the appeal would be that they would need to recalculate all distances and so could they please do it before the appeal.

I wrote that I had read other LAs had conceded errors and offered the child in question a place at the contested school.I received a nice e-mail back saying that they would investigate and respond fully afterwards.

A week later I received an e-mail saying that they agreed the footpath fulfilled all criteria and that it would be added to available routes from now on. The second paragraph then said that a place had become available at the school and that it was being offered to my son and that the school had already been informed.

So we are delighted which is an understatement. Thank you to everyone who posted here. You were all a great help!

[prh47bridge]

That's good news. Well done.

[admission]

Good stuff, congratulations but why did the LA have to say "oh a place has become available." they should just have offered a place because they had made a mistake, not dressed it up.

[TeenTimesTwo]

I guess the OP's child could now have become first on the waiting list following recalculation and a space has occurred so they get it?

[ICSappeal18]

Yes that is correct TeenTimesTwo. We were no. 2 on the waiting list but the e-mail stated that because they had recalculated using the footpath, we were now no .1...and that a place had become available. It is around the time when private school allocations are made and accepted so it is possible that someone who had accepted a place at this school , chose to go private and therefore released their space.

[TeenTimesTwo]

That's lucky. (It is a nice way for the authority to keep the mistake quiet from the other appealers though...)