Primary School Appeal Question

[Jester1]

Hi,

I was looking for some advice.

I've got an appeal for a reception school place coming up. I've received the appeal statement from the LEA that states one of the reasons we were refused a place was "..Section 86, on the grounds that compliance with the preference would prejudice the provision of efficient education and the efficient use of resources, by failing to limit all infant classes to maximum of 30 pupils" (standard infant class size prejudice I presume?).

However, the school has a two class reception entry that is normally 22 & 23 (they have a PAN of 45). They have gone over the PAN this year and have a two class entry of 24 and 24. However, this is below the infant class size limit? The infant class size limit, as I can see it, will only come into play next year (Sept 2011) as they have mixed aged classes. As they take the 48 reception places - make one year 1 class of 30 and combine the remaining 18 with a year 2 class of currently 13. My questions are:

1. Can they claim infant class size prejudice this year, when they won't go over the size limit until the reception class moves to year 1 in September 2011?

2. They also claim with the current year 1 class with only 13 - "the school is legally required to fill these places should any applications be received (e.g. 13 + 2 more pupils + plus the other class of 30 makes 45). Therefore, its not likely that these places will remain available." This will impact the class size when combined with this years reception class, when the move up a year in Sept 2011. Is this a fair statement for the LEA to make?

Thanks in advance for help and guidance.

They are not claiming infant class size prejudice this year. They are claiming future class size prejudice, i.e. that admitting your child will cause a class to go over 30 children at some point in the future. They are allowed to do that. Indeed, they have to do so. They cannot assume that a child will leave between now and September 2011 and, unless one does, they will be breaking the law if they admit your child. The panel also cannot assume that any children will leave.

The second statement is factually incorrect in that the legal requirement to fill places up to PAN should applications be received only applies to the normal year of entry (i.e. Reception). However, that argument is unlikely to help you. Firstly, whilst the legal requirement only applies to Reception, it is expected that the PAN will normally continue to apply as that age group moves through the school. Secondly, even if you could convince the panel that the LA doesn't have to fill all the places in Y1, the panel would have to consider the situation should Reception in 2011 be full. In that case admitting your child would still cause class size prejudice, although it wouldn't happen until September 2012.

With a PAN of 45 and, I presume, 3 classes covering Y1 and Y2, this is an infant class size case, I'm afraid. I can't see any argument for undermining the LA's case in the information you have posted. That means you need to show that the LA made a mistake and that your child should have been admitted. If you can't do that you may still get lucky with a sympathetic panel but that is a long shot, so you should be realistic about your chances of winning.

Thanks prh47bridge that's a very clear explanation.

Okay, one of my other points is based on lack of planning from the LEA. We are approx 0.6 miles from the school and children in our street used to attend the school. However, approx 200 houses have been developed on an estate that surrounds the school. I admit that most of the houses existed when children from our street went to that school. But, over the 10 years these houses have been built no additional school provision has been provided in the local area. The last distance of a child to obtain a place this year is now only 0.3 miles, only just off the estate. We are 20 something on the waiting list.

Any advice on this would be appreciated.

A number of LAs seem to have problems planning for adequate primary school provision. We heard a few months ago on Mumsnet of a London council that had a large number of children without a place at all as they simply didn't have enough places in the local schools.

I am sorry you find yourself in this situation. This is one of those factors that may get you some sympathy from the panel, particularly if the allocated school is a long way away and/or they feel that the LA has been badly remiss in its planning (or lack thereof). However, if they follow the rules I'm afraid it isn't grounds for a successful appeal.

If the panel decide this is an infant class size case the rules are that you can only win if you can show that:

• the LA has made a mistake and your child should have been admitted (e.g. putting your child in the wrong admissions category or measuring the distance to your house incorrectly), and/or

• the LA's admission arrangements are contrary to the law or the Admissions Code and your child would have been admitted if they'd got it right, and/or

• the decision to refuse admission was unreasonble. The bar for this is very high - you basically have to show that they have acted irrationally.

Even if this wasn't an infant class size case the LA's lack of planning isn't really a relevant issue for an appeal. The decision should then be about whether the prejudice to your child through not attending this school outweighs the prejudice to the school in taking an additional child.

Although I've been negative about this, I wouldn't give up. Panels do occasionally decide to admit children when there were no valid grounds for that decision. You should still go and make the best case you can.

There is (I think) a lot of force in the argument that LEAs ought, at the very least, to attempt to provide sufficient places to enable every child to attend their nearest primary school. But there are a lot of factors which militate against that - not all primary schools (of course) are under the direct control of the LEA, many (such as the one of which I'm a governor) are on such small sites that expansion is impossible. Then there are the costs of expanding schools and, probably, of decommissioning the schools which currently take children from a much wider area and also the element of parental choice/preference - around here at least, many parents have lobbied to keep small schools small and don't welcome expansion (which, according to your POV, is preserving the character of the school or NIMBYism).

All this means - in my view - that if you want to start a local campaign and lobby councillors for the expansion of your preferred primary school, you may well attract a lot of support but aren't guaranteed to succeed. In any event, this does not give you any grounds for appeal - even where LEAs in their admissions criteria give some weight to the school being the nearest to the child's home (our LEA does not do this but a neighbouring one does), it still does not guarantee a place at the school if it is over-subscribed and places are filled by higher priority applicants. The panel cannot order your child to be admitted on the basis that children from your street have attended the school in the past or that it's your nearest school - as prh47bridge says, the scope for winning an ICS case is very limited.

I wrote that before seeing PRH47bridge's latest post but agree with all she says. Give it your best shot - you may get a rogue panel which exceeds its remit and allows your appeal when strictly speaking it shouldn't!

Many thanks for the input from both of you.

If the reception class actually had 45 in the year group, then this would be a very simple case of future infant class size, with in September 2011 the 90 in years 1 and 2 being spread over 3 classes. It does not matter whether the pupils are there in year 1 it is the fact that the school should admit up to the Published Admission Number. PRH makes a valid point that the admission number is only relevant to the year of admission in theory but in practise the reality is that no LA or appeal panel will admit if there is potential future infant class size issues.

The problem is that the reception year does not have 45 in it, it has 48 and therefore in effect the future infant class size prejudice has already been breached (48 + 43 = 91). To me the key issue is who breached the 45 limit and why.

If it was an appeal panel or the LA because they realised that a mistake was made in the admission process, these 3 pupils are excepted pupils for this year but if there is no movement in pupils then in September 2011 there will be 91 in the two year groups and the school will have to employ a further school teacher and one class will have 31 in it. You could then argue that as the ICS Regs are going to be breached, why not breech it with an extra pupil. Whilst any parent would see this as reasonable, I believe most panels would not, as we are told that previous admissions due to mistakes are not a reason for further admissions on appeal.

If however the LA had made a bad error of judgement and for some reason admitted 3 over the PAN (possibly to get in all siblings or something) without realising the future ICS Regs situation then they have created the situation, it is not a mistake. The ICS Regs will be breached next year and therefore under those grounds why should an appeal panel not allow an appeal to admit because the LA has already set the precedence of admitting over the PAN and breaching the ICS Regs.

You are going to have to try and establish the reason for the 3 being admitted over the 45 PAN and hope that the LA have dropped a clanger and now they are hoping that no one will realise it was their mistake. I can more or less guarantee you that the presenting officer will say the 3 extra were admitted under appeal. What you need to do is to push to establish when and why this happened. Was it really at appeal because of a mistake or was it the LA being cavalier in their approach to the PAN.

I have been in a similar position where this did happpen and the admission authority did admit over the PAN so they could take all in a specific admission category. The panel had a very difficult decision to make and it could go either way, admit or not admit.

Admission thanks for an interesting view on this.

I understand that one of the children that took them over the PAN was statemented and the other two were through appeal. Do this have any bearing?

Another point that might be relevant is that had gone to 49 and another child has since dropped out, taking them down to 48. So if they've accepted 49 before is there an argument to say they should be able to do it again? Just a thought?

The statemented child had to be admitted even if the school was full. They have no choice about that. Having said that, if they knew about this statemented child before places were allocated they should have taken him or her into account and only admitted a further 44 children unless the school has a special needs unit which this child will normally attend.

The others being admitted through appeal, if that is genuinely what happened, should have been the result of mistakes. It is possible, as Admission suggests, that they weren't really admitted through appeals but were due to the LA being cavalier with their approach to the PAN. I think you should ask about this in the appeal and push the LA for the precise nature of the mistake. If they have been cavalier about PAN it may persuade the panel to admit.

If it was up to 49 at one point there must have been yet another child admitted over PAN. Another appeal or some other reason? Again, worth probing.

Saying that they were up to 49 before and therefore they should be able to go there again isn't really an argument. Once the school has gone over PAN they should not replace anyone who leaves until they get back down to PAN.

As Admission says, you can put all of this forward and point out that they are, as things stand, going to breach ICS regulations anyway. The panel shouldn't admit on that basis but you never know, especially if it turns out that the LA hasn't been sticking to PAN properly.

AS PRH says the actual number admitted at appeal is no basis for your appeal, no further pupils can be admitted under normal circumstances to the year group until it has dropped below the PAN. Also appeal panels are specifically cautioned in the regs about pupils being admitted as SEN as a reason to admit more pupils.

Your best hope is to push to establish the reasons why 3 pupils were admitted under appeal and hope it was a mistake by the admission authority.

Do not just accept a bland statement that they were admitted under appeal, which regretably some panels will do. You need the presenting officer to know the date that they were admitted, that it was through an admission appeal panel and the general nature of the reason for admissions - that is that a mistake was made in the initial allocation of places and the panel therefore had to admit. If the panel admitted 3 for other reasons, this is a mistake by the panel and the clerk, in them not realising that ICS regs were appropriate. The reason I say this is that some presenting officers are more knowledgable than others and it could be they are making a bland statement assuming they were previous appeal panel decisions rather than having full knowledge.

If the Chair tries to shut you down on the subject, then I would suggest that you ask for the information to be made available as you believe that the 3 were admitted by the LA, not an appeal panel - you have nothing to loose by saying that. It would be a brave or foolish Chair who would then continue to deny you the info. If that happens you do need to state for the written record of the appeal hearing that you were not given the opportunity to say everything that you wished to - that will guarantee that a referral to the LGO will result in a new appeal.

Of course if all was done correctly it will not make any difference as the most likely outcome is that your appeal wil be unsuccessful.