Any advice re: appeal (Infant class size)?

[childrenanddogs]

Hi all,

Bit of a long story I'm afraid, but I'm hoping that somebody may have some words of wisdom for us.

We moved to our area last April, with a daughter who was 6 and a son who was 4. My daughter got a place at our local school straight away as they had space for her, although it's not our catchment school (bizarrely, despite having two schools within a mile - the one my daughter is at is 800m away - our catchment school is 4 miles away!).

However, my son was dealt with as a 'late admission' and didn't get a place at the same school as his sister. In hindsight, we should just have put her in at the catchment school, but as we weren't yet living in the area we had no idea how popular and oversubscribed our local school was, and hadn't expected to have such a battle to get our son in as well.

My son was given a place at our catchment school, and we decided to defer this until Easter (which is the term after he turns 5, so when he legally has to start). We thought that as he'd only just moved to a new pre-school, to start him at a new school last Sept and then hopefully move him to his sister's school when a place became available, would just be too unsettling for him. We were told (wrongly, it now turns out) that we couldn't appeal the decision as he was a late admission and the appeals process had already taken place. So my son was placed on the waiting list for my daughter's school (he was 8th on the list) and we kept hoping something would come available.

We have been in slightly unusual circumstances as we bought a derelict house which we've been renovating, and were living in a caravan in the garden. When October rolled around we decided that living in the caravan for the winter just wasn't feasible with two young children, so rented a room for them and myself in a local house. Prior to doing this we spoke to the council to find out how it would impact my son's position on the waiting list, and were told that if it was in catchment he would go to the top of the list (as he was the only one on it with a sibling at the school), so needless to say we made sure we found somewhere in catchment! The council requested various information from us such as statements from builders, photographs, etc, to show why we couldn't live in the house we'd bought and why we needed to rent somewhere else.

That was all fine (helped by the fact that the house had been declared uninhabitable during two inspections for council tax purposes), and my son was moved up to first place on the waiting list.

In February we found out a place was becoming available so needless to say we were ecstatic and thought he'd finally be able to start school with his sister. But on checking their records, the council informed us that they wouldn't be using our rental address as it turned out the landlord hadn't been paying council tax for us (he'd been claiming the single person discount) and therefore there wasn't enough evidence to use that address.

We gave them what we did have, but because my husband stayed in the caravan (we have a dog and two cats that needed looking after, and for insurance purposes had to have somebody living on site), we hadn't changed addresses on any post so this proof was limited.

So, we are now in the position that the place at the school has been offered to somebody else and we are back down the waiting list at no. 5. They will only use the house we are renovating as the address for my son, despite the fact that their own inspectors have deemed in uninhabitable!

Needless to say, I'm distraught, and the thought of my son having to start at a school that he doesn't know and which is over 4 miles away from his sisters, is filling me with dread.

We're going to appeal on the following grounds:

• that a mistake was made in not using the address we had for the rental property
• that another mistake was made when allocating places last year (we know they gave a place to a boy that is further out of catchment than us, who should have been below us on the waiting list, they've admitted it was an 'administrative error'). I'm sure the council will say that it wouldn't have made any difference to our chances anyway, but I don't see how they can know that for sure. At the very least, it's put us one place further down the waiting list than we should be!
• that it will negatively impact on my son. He is very shy and unconfident, and relies on his sister a lot, so to go to a completely new school with nothing familiar is going to be very hard on him. Add that to the fact that I've got no option but to be 20 mins late every day to pick him up, and that he'll have to be late getting to school, as there is 4.5 miles between the two schools, and I'm really worried about how he'd cope.

If anybody has any advice at all, I'd really appreciate it. I realise that the appeal is a long shot, but feel we have to give it a go for my son's sake. This is all a bit of a minefield for me and we were not expecting to be appealing, so any words of wisdom would be very gratefully received.

Thanks from a distraught and very stressed mother! :)

All I know is that with an infant class size appeal you stand no chance unless you can prove a mistake has been made. Thirty is the legal limit and unless it's clear there was an error then it's extremely unlikely although you might get lucky and have a sympathetic pannel. Unfortunately they do not care about childcare arrangements your work situation, finances etc. I'm not trying to sound harsh at all op but you will have to find undeniable proof in order to win. Even having a sibling doesn't matter in fact parents have been told to stagger being late. I'm sorry you are in such a bad situation a year ago I was going thru school dilemma and had I not got the school I wanted in the second round I would have been appealing myself. But it is hard to change anything because Its a class size appeAl and there are legalities . :)

Thanks for that, that's my understanding too and I know it will be unlikely to get granted a place at appeal. As mentioned in my thread we know they've made mistakes in implementing their admission arrangements though (such as giving somebody a place that shouldn't have got one), so I'm hoping that may help.

It's just all so daunting for me, and the more I read, the more confused I get!

The hard part is proving it. I turned down my school allocation I didn't get any of the ones I picked and have since met people further away from us and the school we wanted and who got in. In our case everyone knew it was the Lea who were putting every possible person into the school ( no one actually picked it) as it was on special measures and they needed children in order to get funding. We all knew it but couldn't prove it. If you can get hold of proof that these errors were made or that the places were fraudulently obtained then that might help and worth a shot anyway as nothing to loose but unfortunately chances are very very slim. :(

To win an ICS appeal you need to show that a mistake has been made and your son should have been given a place. A mistake that does not affect your son doesn't help you. With that in mind I am not convinced that the mistake you say was made last year helps you.

Your best case is that you are living in the rented accommodation and the LA is being unreasonable in using an address that has been declared uninhabitable and where you do not live. You should not be penalised because your landlord is apparently fiddling his council tax. If you have a rental agreement you can use that as evidence. If that has been shown to the LA you should say so. I would also put into evidence anything you have from the LA that accepts the rented address. Have they, for example, written to you there? Did they put the fact you were first on the waiting list in writing?

If the landlord is fiddling his council tax I would expect that he will be unwilling to state that you are living there and there may be no rental agreement which makes things harder but not impossible.

I presume the LA will argue that you are not living at the rented address but are actually living in the caravan with your husband. You should ask the LA's representative at the appeal whether they have tried visiting you at the rented address without warning and what other steps they have taken to find out whether or not you and your children are living there. If they have made their decision purely on your landlord claiming single person discount I would personally regard that as inadequate. I would argue that you are being penalised because your landlord is apparently fiddling his council tax and that the LA should have investigated further before drawing the conclusion that you had lied about your address, especially when they know that the house they want to use as your address has been declared uninhabitable and you have told the LA your situation.

I would also mention that the LA broke the appeals code by telling you that you could not appeal against their initial refusal to admit your son as it adds to the impression that the LA has mishandled your case.

Thanks so much for the advice. We do have a rental agreement, which was submitted to the council as soon as we signed it - in hindsight, I should have known the landlord would turn out to be dodgy as he wasn't even going to give us a rental agreement and we had to supply it! But they've had that and we do also have emails from them confirming my son was first on the waiting list. Their reasoning though is that when they actually came to allocate the place they do standard checks (which is fair enough) and that's where our case fell down due to the council tax and lack of paper evidence of us being there.

Unfortunately they did get their investigations team to turn up to the house, but we weren't there and the landlord said we never had been. I don't quite understand why they didn't come and check the other address as well, and then it would have been quite clear that children weren't living there! The caravan is no longer at the house we're renovating, we sold that on Ebay after getting the rental.

So all we could give them was the rental agreement, my mobile phone bill with the address on (everything else is in joint names so we left it as the address where my husband is), child benefit account address, and a statement from a neighbour saying she'd seen us go in and and out of the rental and my car on the driveway. But they're saying that's not enough evidence to overcome the lack of council tax and the landlord saying we weren't there - obviously because we've dropped him right in it and he's trying to wriggle out of things!

I really appreciate your advice, thank you so much.

My view is that the LA has been unreasonable in deciding you don't live at the rented property. The discrepancy between the rental agreement signed by the landlord and the landlord saying you don't live there should, in my view, lead to further investigation. They could, for example, have asked the neighbours, tried calling at different times of day or watched the house, instead of which the they have simply decided that you don't live there despite the evidence you have provided.

You have, in my view, provided ample evidence to show you live at this address. Present all of that to the appeal and include any further evidence you can generate - statements from people who have visited you at the rented property, for example.

Your case, in my view, is:

• You live at the rented property and have provided evidence to support this
• The landlord appears to be fiddling his council tax
• The LA has failed to investigate adequately, resulting in them incorrectly concluding that you do not live at the rented property instead of realising that the landlord is fiddling his council tax
• The LA is insisting on using an address that is empty and uninhabitable (include the reports from the LA's inspections as evidence)
• The LA has therefore been unreasonable in deciding that you do not live at the rented address
• As you do live at the rented address you were entitled to the place which became available last month
• In offering that place to someone else the LA has failed to implement its admission arrangements correctly

In the hearing, when the LA presents its case, I would ask them how they explain the rental agreement, mobile phone bill, child benefit letter and statement from the neighbour.

If the panel accept that the LA got this wrong you have a strong case.

Good luck with yr infant class size appeal. I know everybody says that they are hard to win, but I'm told that about 15% are won every year, so its still worth the effort!

Can anybody help me with one aspect of infant class size appeals?

I can see that there are limited reasons that you can use to win yr appeal. However, the thing I need help on is what happens if your ics appeal goes through to the second stage, i.e. where they find that you have reasons that would justify giving you a place, but still feel that this would put pressure on the school.

According to the Appeal Code, in this case the panel must compare cases. What does this mean? How do they compare cases - i.e. against which criteria? Appeals code gives no help on this question - anybody know?? does this mean you have to go to yr ics appeal armed with arguments about why you prefer the school just on the (albeit unlikely) chance that the appeal will go through to the second stage??

Any advice welcome!! Thanks in advance& good luck to all appealers!

That paragraph of the new appeals code is poorly worded, so I'm not surprised you are confused.

Comparing cases only happens if there are multiple appeals for the school. The panel decides each case individually. If it then finds that the number of successful appeals is more than they think the school can handle they compare the cases with each other to decide which ones should be given places.

You should always go to any appeal with arguments about why this is the right school for your child. For an infant class size case you also need to show that the LA got it wrong and your child should have been given a place. You will get to present your entire case during the hearing.

Thanks ever so much, prh47bridge - v. helpful.
Just one quick qu. though - I see what you are saying about "comparing cases" only being relevant if there are a number of children who might be given places, but this would be too many.

What I'm still unclear about, though is what "comparing cases" involves.

When you compare one thing with another, there must be some criteria on which to base the comparison. To give a daft example if I said "compare two apples", this doesn't explain the basis of the comparison: however, if I said "compare two apples to see which is the reddest/roundest/largest" this provides a basis for comparision (sorry about the daft example).

OK, so applying this to appeals, to compare two (or more) appeals, a panel must know what the basis of the comparision is - but the Code forgets to provide any basis! It might, for example, be comparing cases to see which parents have the strongest reasons (although NB the Code doesn't actually say this). It might, though, be "compare the cases according to the order of priority when admissions criteria are applied." (although the Code doesn't says this either). It might be "compare the cases to see which children have the reddest hair" (OK, I'm being silly now, but do you see what I mean - in the absence of any benchmark for comparision in the Code, how do panels know how to approach this?). Or is it me who has missed something in the Code (always possible!).

Sorry to ask another qu, but prh47bridge or panel member, you obviously know what you are talking about, so it would be great to know what you think this means.

Thanks again for yr earlier reply.

They are comparing the cases to determine who has the strongest case for admission. This is stated in paragraph 3.9. It would probably be better if that statement was repeated in 4.9 but that is what is meant.

I think that's come across as a bit impatient. Didn't mean it like that - sorry.

Whilst the new appeals code is a lot shorter than they old one there are a number of areas, such as this, where it isn't as clear as it could be. For those who are not familiar with the process it can be a bit confusing.

Thanks prh47bridge, you are an invaluable source of advice! And don't worry, your first post did not come across as impatient - I asked, you answered, that's fine by me! I'm just grateful to be able to iron out the things that I can't understand.

I'm a newbie to this, but I've sort of got the bit between my teeth (as it were). It's a case of AIBU to be p**d off that the Appeals Code seems to need quite a lot of close reading to understand it, plus it seems to leave some questions unanswered, despite the fact that the govt clearly thinks that it has simplified things. I think that a simpler Code would have been a longer one with examples and flow charts included -

In that spirit, and if you still have the energy/interest to answer my queries, there is one other conumdrum in the Code about ics appeals.

The Code says that you may win an appeal if the panel agrees that admissions could have been made without the infant class size limit being breached (4.6).

However, what if the parents argument is that the school could have taken measures to avoid the ics limit being breached (and these measures would have not caused prejudice).

If the school says "admitting one more pupil would take the class size to 31", then, read literally, this seems to block the ground of appeal set out in the Code (4.6(a)) - even if, in fact, the school could have avoided this outcome by timetabling existing teachers differently without much difficulty.

to put the question in a different way, which ground of appeal in 4.6 does a parent use if their argument is that it would be possible to avoid breaching the ics limit by taking certain measures?

Thanks again.

Just to endorse everything prh47bridge has said.

For the OP - the arguments about your child being shy and needing to be at the same school as a sibling won't cut any ice at an ICS appeal. You have to frame it all around the mistake which the LEA (as you will argue) made and the unreasonableness of their refusal to award a place.

Theotherloobyloo - As I see it, you can argue that the ICS limit would not have been breached by (for example) the school/LEA not awarding a place in error to another child and therefore making your child the 1st on the waiting list, rather than the last to be admitted. However, you can't argue that the school/LEA could have avoided breaching the ICS limit by raising the PAN, installing a mobile classroom, hiring another teacher etc etc because the panel has to work with the existing PAN and school set-up. The three-pronged test in para 4.6 is not new.

Thanks, panel chair.

I'm still concerned, though, that the meaning of 4.6(a) is uncertain.

Although you say that the three-pronged test in 4.6 is not new, 4.6 does differ from the old Code (I tracked down the old Code this morning after I saw yr post):

• old Code (paras 3.19) had grounds of appeal equivalent to grounds of appeal found in new Code at 4.6(b)(c)etc. So far, so good - no difference.

However, new Code omits all of the material found in old Code at 3.28 and 3.30 (in summary: panel must admit children up the number that it finds would be possible without ics prejudice resulting).

In replacement for this omitted material, we find a new ground of appeal instead - para 4.6(a). However, 4.6(a) does not say the same as old Code 3.28-3.30 did.

This then goes back to the qu. that I asked in my original post - in effect, is 4.6(a) (new Code) meant to mean something different from para 3.28-3.30 (old Code) or is it meant to mean the same (just using less words)?

I know that I seem to be trying to tie everything up neatly here, but I think that's a fair thing to do - I'm concerned that panel members will be in the same position as I am, and simply be not sure what 4.6(a) allows them to do exactly (for reasons explained in my earlier post). That can't be good - it will end up with panels in different places doing different things. All uncertainty does is keep the LGO busy.

You clearly have a lot of experience in this area (and I am grateful to you and other posters, notably prh47bridge), so it would be v helpful to know whether you think 4.6(a) means the same/something different from relevant provisions (3.28-(part of) 3.30) of the old Code, and why. :)

Thanks again!

4.6(a) means that the panel can admit if it can do so without infant class size prejudice resulting. Paragraph 4.7 then goes on to explain the circumstances in which the panel can still refuse admission - basically if the number of children admitted would cause serious prejudice to the school.

It is ultimately up to the courts to rule if there is a dispute but my interpretation is that there have been no significant changes.

Thanks. Your reading of 4.6(a) obviously makes lots of sense.

However, if 4.6(a) means "without infant class prejudice resulting" then it's a shame that whoever drafted 4.6(a) actually wrote "would not breach the infant class size limit." I wonder why they didn't write "without infant class prejudice resulting" (which would have made the intention clear). The way they chose to draft 4.6(a) just leaves a guessing game for the rest of us. Simplification??

Don't misunderstand me - I'm on your side prh47bridge. This is how I would like the rules to be interpreted.

Out of interest, if a school tried to rely on the narrower interpretation of 4.6(a), what arguments would you use to convince the panel that "would not breach the infant class size limit" is actually meant to mean "without infant class size prejudice resulting"?

As I say. I've got the bit between my teeth now!!
thanks.

The two phrases mean exactly the same thing. Infant class size prejudice results if the infant class size limit is breached. I would guess that the idea of the new wording is that "would not breach the infant class size limit" is more intelligible to the average parent than "without infant class size prejudice resulting".

Any appeal panel that doesn't know that the two phrases mean the same thing has not been properly trained.

Theotherloobyloo - I think you're seeing differences where none really exists. The wording may have changed but the underlying principles remain the same.

Para 4.6a (new code) says The panel may only uphold the appeal at the first stage where ... it finds that the admission of additional children would not breach the infant class size limit. This is (in my view) equivalent to the old para 3.5, which said In the situation where only one appeal is being heard for the school and the panel is not satisfied in the first stage that there would be prejudice if the child were admitted, the panel must uphold the appeal. ....

Both old and new codes allow the panel to admit in ICS cases where (1) the admission would still not take the class/school above the ICS limit, (2) there has been a significant error which deprived the child of a place or (3) the refusal of the place was so unreasonable that it can't be allowed to stand. As I said earlier - and prh47bridge explained rather more succinctly - if it is beyond a doubt that the ICS limit would be breached by the child's admission, then the parent's best hope of winning the appeal is to demonstrate an error or some evidence that the refusal of a place was so unreasonable as to be perverse.

As to your question about how to prove that ICS prejudice would not result then, as I said earlier, arguments that the school could hire a portable classroom, engage another teacher etc etc are not going to fly, because the panel has to work with the school's current set-up and not devise an alternative or speculate on what an alternative might be.

Finally, all panel members have (as far as I know) been trained in the new code. We're all trying to work to a common standard, but each case turns on its own facts and, as prh47bridge says, ultimately only the courts can say whether any panel has got it wrong.

Panel Chair -

I can see why a panel would not accept an argument that e.g. the school should hire a portable classroom/hire a teacher etc.

However, presumably the panel would consider arguments that work within the framework of existing resources, e.g. if school could ensure that time allocated to CPD, SENCO admin, PPA etc takes place after 3.15pm, then this might release enough teacher time during classroom sessions to enable further admissions without ics limit being broken? In this sense, would the panel "consider alternative arrangements" when satisfying itself that the school is meeting the obligation to "take measures"

prh47bridge

I'm still stuck here, as from what I can read it doesn't appear that "the infant class size limit being breached" is the same as "infant class size prejudice resulting".

The easiest way to explain why is to look at the SSFA 1998. It refers to two quite distinct ideas:

(a) the infant class size limit (section 1(6));
(b) the prejudice that arises "by reason of measures required to be taken to ensure compliance" with the ics limit (section 86(4)).

Doesn't the phrase "infant class size prejudice" mean (b)? In other words, ics prejudice is the adverse effect on the school from having to take measures to avoid a breach of the ics limit. This is a different concept from "a breach of the ics limit" - hence my original qu.

However, your reply is interesting and helpful: in yr experience you appear to be saying that, whatever section 86(4) actually says, most panels would treat the notion of "a breach of the ics limit " as simply another way of saying "infant class size prejudice"?

To deal with your question to PanelChair first, no that wouldn't fly as an argument.

I am very familiar with the SSFA. What you describe as two quite distinct ideas are cause and effect. They are completely and inseparably linked. You cannot breach the infant class size limit without causing infant class size prejudice. Equally, if the infant class size limit is not breached there is no infant class size prejudice.

The infant class size limit is no more than 30 children with a single teacher. Infant class size prejudice arises when the school has to do something different in order to comply with the limit. The only way to avoid prejudice is if the school does not have to make any changes at all in order to avoid breaching the class size limit - no additional classes, no additional staff, no changes to timetabling, no redeployment of existing staff, no changes to the way staff work, nothing. So there really is no way round it. If admitting an additional child causes the infant class size limit to be breached it must, by definition, cause infant class size prejudice.

You are attempting to argue that the school can cope by making staff do certain work after the school finishes for the day. Making that change would be infant class size prejudice - to use the language in the SSFA, it would be a measure taken to ensure compliance. So it doesn't matter whether you use the new appeals code or the old one, the argument fails.

TOLL - To reiterate what prh47bridge has just said, arguments about cancelling PPA time during the core school day so that there is greater teacher availability, to teach additional children, just won't wash. That still goes far too far into the management and deployment of the school's resources.

Finally, I really don't see it's a question of panels treating "a breach of the ICS limit" and "ICS prejudice" as the same thing. They are the same thing or, rather, they are the two sides of the same coin: the prejudice arises wherever the class size limit is breached and (say) the school has to engage an additional teacher.

Why are you getting into such abstruse debates about what the code says and what the code means? Are you a parent preparing an appeal? If you are, you really would do far better to look at weaknesses in the LEA's case and the strongest, most compelling aspects of yours - and people here can help you with that - rather than getting into semantic arguments, which the panel are highly unlikely to engage in.

Just a note of thanks, prh47bridge and PanelChair. I take your point 100%, Panel Chair, about an appeal not being the place for semantic arguments. I didn't really aim to get enmeshed in one of those, but I just wanted to be crystal clear in my mind about which arguments were relevant - and I had hit a stumbling block in understanding that (perhaps I was being obtuse!).

Anyway, I think that we have given this topic a pretty thorough airing now, and I havn't got any further qus on it, so this is just a quick post to say thanks for yr explanations which were appreciated.