In year application - do LEA have to offer place if dd not 5 til end June?

[Ihatemakingpackedlunches]

We are currently abroad & are returning to the UK at the end of May.
There are no reception places at all in our borough at present, though I understand that one may come up before we move.
In past conversations with LEA they said they would go over 30 in reception if there was no school with a place within a 2 mile radius. However now they have said that as she does not turn 5 until end June, they are not obliged to offer her a place anywhere until September when she will be in year 1. The though of having her at home for half a term is not great - can they really do this??!!

You could appply to a nursery or pre-school for half a term? They will be following the same curriculum as Reception.

Thanks for the suggestion, but thinking a nursery with children who are a school year below her will really not be the right environment for her as she is already in reception & reading well and also I imagine she will find it babyish - but its something I hadn't considered so will not dismiss and have a good think....but my main questions is, are the LEA actually allowed to not offer a place anywhere?

I am not 100% sure to be honest. If you had applied in the normal round, then there is no doubt that you would legally have to have been offered a place in the reception year somewhere. That is not necessarily at a school you would prefer but they have to offer a place.
So if you apply anytime in the academic year then i would expect that you would also have to be found a school place. When the LA talks about going above the 30 if there is not available place within 2 miles that is definitely the in-year fair access protocol that they are talking about.
Most LAs would not expect anybody asking for a place in June to be looking to start till September and I think that the LA official is confusing appeals with the requirement to provide a school place.
So whilst I can't put my hand on the right legislation I think that you should be offered a school place but I would err on the side of moving back into the UK ASAP to avoid any comments about when you need / want a place.

Thanks for the replies. Well we have filled out the forms, but the LEA won't actually allocate places until we are back in our house, which is end May.
So we will have to wait until then.

They have said that they don't like not offering a place, but will have no choice - but surely there is a choice if they can push a class size over 30 for a reception child who is already 5, then they can do it for another reception age child, even if they are 4.
Otherwise surely if they run out of places in the normal application rounds then they could refuse any applications on this basis, as no one would be 5 yet!

The LEA say that as soon as we arrive back end May they will allocate places if available, which would still leave her witha good half term left of school. They have the completed forms already, but they will not actually offer places until we are back. According to the LEA, even if it was January, if there were no places and dd was not 5 yet, they would not push class size up and tell me to wait til september when she would be in year 1.

They can't do that, it's in breach of the in year fair access protocol. If I moved from Essex to Devon now, and wanted a place in reception for my child, they would have to give me an offer of A school, even if it wasn't the closest one, even if ALL the reception classes had 30 in. My child would be counted as an 'excepted child' for the purposes of the ICS, until the end of reception. The LEA's problem is that for THIS years' reception, they still have to either split the class or hire an extra teacher for Y1. That will change for the September 2013 reception intake, but really the LEA don't want to have to pay for another teacher.

If they take your child at the start if Y1, then your child will be an 'excepted child' for the whole of that year, and the LEA are hoping that one child will leave the school in the course of Y1, which would mean that they wouldn't have the cost of the extra teacher in Y2.

This is, however, in breach of the in year fair access protocol, the LEA HAVE to offer your child a reception place SOMEWHERE,

Thanks for all the replies - but from talking to the education consultant that my husband's work provides, if your child is under 5 then the fair access protocol does not apply - as they do not legally have to be in school. Whereas it is illegal to push up an infant class size over 31. Saying that the LEA have now come back to me to say they will try their best to find my dd a place and will consult with head teachers as to if they can go over the 30 limit.

I think that there is confusion here, this is my take on the situation.
Your daughter is 5 during the current school year and as such should be admitted to a reception year class from as soon as you are in Devon. It is the parent's prerogative to defer entry till the child is 5 not the LAs. You could currently have your child in a school where you currently live if you were in the UK, it just happens you are abroad and therefore do not have a school place.
You are an in-year admission and can ask for a place at any school you wish. If the school is full then you have the right to appeal. Because you are in-year the LA also has a duty to find you a school place and if that is not possible locally they can then bring the Fair Access Protocol in operation. One of the parameters for this is "children whose parents have been unable to find them a place after moving to the area, because of a shortage of places." and you are potentially definitely in that group.
Your educational consultant is correct in saying that the infant class size regs cannot be broken but the PAN of a school can be exceeded if an admission is based on a fair access protocol. So the LA saying they will consult with schools about going over 30 limit of a class is rubbish, they know they cannot do that unless they employ another teacher because of the ICS regs.
Not sure why the educational consultant says fair access protocol does not apply to under 5s because any child in reception year could be under 5 but be appropriate for fair access protocol admission if there are no spare places.

my understanding is that a reception place has to be offered by the LA from Sept 2011 if a child will reach 5 in that school year. that was a change from prev admissions code - never had to look at it for in year applications but can't see why that would be different?

I'm really not sure on the legislation on school places for under-5s but we were in a similar position last year, so thought I'd share our experience. We moved in the February so only halfway through the school year. Although we got offered a place, we declined as it wasn't a very good school, was the other side of town and we wanted to hold out for one of our choice schools. That place was soon taken by someone else so we were in a position of there being no places anywhere in our town. I think because our daughter wasn't five until the end of May they weren't in any hurry to use the fair access protocol. It wasn't until the summer holidays that they started to panic and try to get us in somewhere. As luck would have it places came up in both our second- and third-choice schools so it didn't come to fair access protocol. It may be that they know that there is likely to be movement of school places during the holidays so they are trying to delay placing you. To be honest, I'd rather wait and get into a chosen school rather than just any school. It's only a few weeks so just do a bit of home tutoring - to be honest, we didn't do much more formal work than reading - and treat it as an extended summer holiday/settling back to the UK period.