Problems with infant class size appeals - please help

[Lucca]

Dear All - apologies in advance for the enormous length of this post, but I didn't want to drip-feed info.

We are in the middle of 3 appeals for my eldest DS who has been allocated a reception year place which it will take 30 mins to travel to by car (unsurprisingly this was a non-ranked allocation...)

The 3 schools we applied for were our 3 closest schools, but we missed out on all of them. We don't have an issue with the quality of the school we have been allocated, but (a) I am a long-term sufferer from post-natal depression, and my recovery will be impacted by having to spend 2 hours a day commuting, plus social integration difficulties (having recently moved to the area at the end of last year) - all factors likely to prolong my PND; (b) my son suffers from frequent vomiting & migraines caused by a dairy allergy - this means it will be difficult to bring him back from school by car if he is sick and there are other issues if we have to pick him up from school once he's started being sick (eg how this will impact on his younger sister once she starts school - if we have to go to collect my son early when he is being sick, will we also have to take our daughter out of school early?).

We are appealing against each of the 3 schools that we didn't get into. Each one is an infant class size appeal... I understand that puts us into a v difficult position... We had the first appeal yesterday (don't know the result yet, but not feeling optimistic), the next one is on Monday and the third on Wednesday... (Also seems a bit pointless since we have to go through the same set of issues with the same panel each time...)

What also makes things difficult is that we did not mention any of these issues when we were applying for places. The reason for this was that in any previous year, we would have got into our nearest school by a country mile (almost literally - we are c.500m away - in all previous years the cut-off point has been over 1000m). It literally did not occur to us that we would not get in, so why would we mention our medical issues... The 2nd furthest away school to which we applied is similar. However, this year due to the bulge in children born in 2008 and an unusually high number of siblings, we didn't get into either...

My concern is that some of the very helpful people who have posted in other threads have indicated that in an ICS appeal, if the LA did not have the information when they were making the decision, then the reasonableness of their decision cannot be challenged (their decision must have been reasonable on the basis of the facts available to them). I'm surprised by this, since I can't see how anyone would ever be able to show that a ICS decision was perverse... I would be grateful if anyone could clarify why an appeal panel is prevented from saying "if the LA had known this, then it couldn't possibly have made the decision it did make...

What further aggravates me is (i) in our town it turns out that every school is heavily over-subscribed (apart from the one that we have been allocated on the outskirts of town); (ii) there was going to be a bulge in the number of children applying for reception year places this year. It seems to me that the LA should have warned people that this year was a bulge year; that all schools in the area are heavily over-subscribed; that if you have medical issues that you don't raise at the very outset, then you will have shot yourself in the foot because you won't be able to raise them later. If the forms had these types of issue flagged prominently, then we would have raised our medical issues with the LA...

We do qualify for free transport to school, but I don't feel happy putting my 4 yr old DS in a taxi with a stranger ....

Any thoughts and tips would be enormously appreciated, and apologies for going on at such length and being so over-wrought...

Thanks all...

Are you sure it is the same appeal panel for all three schools? Whilst there is nothing wrong with that, I would not normally expect to find exactly the same people making up the panel for three separate schools.

As Tiggytape says, the panel can legitimately decide that the LA was wrong to ignore your medical condition because no reasonable person would have done so (and, indeed, appeal panels do sometimes make that decision), but that clearly only applies if you have given the LA the necessary evidence. It cannot be unreasonable for the LA to ignore your medical condition when they didn't know about it. The only question in an ICS appeal is whether or not the LA has got it right. If the LA has done nothing wrong the appeal panel cannot interfere. If they were allowed to admit children on the basis of additional evidence supplied to the appeal that was not available to the LA we would probably find that people applying to popular schools who thought they may not get in would deliberately hold back something in the hope of strengthening their case for appeal.

You will occasionally come across a sympathetic appeal panel that admits a child even when the rules say they shouldn't so you may strike it lucky. but to be honest I think your best chance is to get a place from the waiting list.

By the way, if you do use the free transport the "stranger" will be CRB checked and it is likely to be the same person most days, so he/she will be no more a stranger than the Reception teacher.

Thanks Tiggytape and prh47bridge for your quick responses... Do honestly appreciate it, because it's good to have an injection of reality and know where we stand...

1. In terms of challenging the way in which the LA measured the distance, we raised the fact that the LA does not publish the exact point in the school from which the distance is measured. They use an 'as the crow flies' method, but simply state that the measuring point is the school's "address point" without specifying what that actually is... So we don't know whether that's the middle of the school, or the school gates etc - depending on what point is used, it could alter the measurement by say 10m (and we failed to get into our 2nd choice by 1.5m...!). We don't know whether they use a consistent point for all schools etc. This appears to be in breach of the School Admission Code.

We didn't raise this until actually at the first appeal hearing (late I know, but to be fair I sometimes feel as if we are placed in a difficult position - understanding the rules and regs takes time for a lay person). The representative for the LA did not know what the measuring point was, or whether they use consistent measuring points across all schools (understandable, given we raised it so late)...

The Panel declined our suggestion that the hearing should be adjourned, and said that the LA would look into it and sort things out if it turned out there was a mistake... We feel a bit nervous about how this will play out, because we would be happier if the Panel was reviewing it...

1. We are 2nd on waiting list for our nearest, and 14th for the second nearest... There's been no movement on the list since the original decision was made, but I guess we just have to see what happens...

At this point we will take any school that is closer than the one we have got, but we are only allowed to go on the waiting list for 3 schools, so there's a risk that we could miss out again by picking the wrong 3 (ie if there is no movement on the 3 we pick, but we might have got in somewhere if we picked a different 3...) Feels like there's a lot of randomness to how it works.

Sorry to whinge so much - appreciate that lots of people are in the same or much worse positions... And appreciate you taking the time to respond...!

The address point is defined by the Ordnance Survey. They use their digital map databases along with over 27 million addresses in the Royal Mail's Postcode Address File. I have never found a definition of exactly where on the property the address point is placed but a lot of LAs use it and I think it is accepted that it provides a consistent method of measurement. As long as the LA has used the method stated in its published admission criteria it is difficult to argue that they have got it wrong unless that method is perverse - measuring to a gate that no-one can use, for example.

It is unfortunate that your LA only allows you to go on three waiting lists. A year or so ago I would have said that they couldn't limit you like that but unfortunately the Schools Adjudicator has since surprised admissions experts by deciding that LAs can do this. In my view this goes against the principle of encouraging parental choice and reduces this part of the system to a lottery. Unfortunately there is nothing anyone can do about it until either the government changes the Admissions Code or someone goes to judicial review and the courts decide that the Schools Adjudicator got it wrong.

Hi lucca, I can't really comment on school appeals but was a bit concerned about your comment about your ds having frequent vomiting and migraines due to a dairy allergy.

I say this as a mum of a 5 yr old DD with a severe dairy allergy. She is on a complete exclusion diet when it comes to dairy and we are always careful not to touch or kiss her after eating anything with milk in without washing first so that she doesn't react. Barring a couple of accidents last summer (where she unfortunately ended up having an anaphylactic reaction :() we have been able to keep her safe.

So I am just a bit concerned that you may not be accessing the appropriate support from the medical teams if your son is having frequent reactions?

Also, the LA may argue that all schools should be able to handle a food allergy so may not want to take that into account in your appeal.

Good luck though with your appeals though, it must be tough not getting your child into your preferred school

My understanding of the address point system is that it is a specified point in the middle of the house in question and also the school, It is very accurate if the datum point is used and is very difficult to see how it can be challenged. The bottom line is that the measurement has to be as it is specified in the admission criteria for the school. So you should look and see whether the admission arrangements for the schools are all the same and that they match what the LA says is happening.
I am somewhat shocked that the panel allowed the presenting officer to get away with not knowing how the distance are measured. Part of the appeal decision making is whether the admission process was carried out correctly. If the panel said that they leave it up to the LA to correct any mistakes that is completely wrong. It will not get you a place in the school unless you believe that there was a mistake made over the measurements. If you do believe that then I would contact the Local Government Ombudsman to discuss your concerns.
I have some concerns over the figures you are quoting. Whilst I am quite happy to accept that you might have lost out in not being allocated a place by 1.5 Metres for your second preference school I find it quite difficult to understand how you are now 14th on the waiting list for the school, or am I misunderstanding?
You should not be getting the same panel for your second and third admission appeals. If this is the case then I would actually object at the hearing to it being the same panel as this is clearly not best practice. OK you might see one panel member twice but hot all three on each of the three appeals.

I'm coming late to this discussion, but my view is:

The point about how the distance is measured is unlikely to get you anywhere - as has been explained, it's from a fixed point determined by the Ordnance Survey. As such, the approach will be standardised across schools even though the actual point won't be (I heard of cases in the past where it was measured (for example) from the Head teacher's office or a school gate, but that was in the days before this electronic measurement was widespread). In any event, they will have used the same point for all the applications for that school.

At an appeal I heard recently, a child had missed out on a place by a very small distance indeed but was now about where you are on the waiting list, because there had been a flurry of late applications from children living closer. It would be well to double-check how you came to be 14th in case there has been any error, as your LEA does not allow people to join so many waiting lists so presumably there are fewer late applications going into the mix.

It's plainly stated in our LEA's starting school booklet that all applications under medical and social criteria should be supported by appropriate documentation. Your point (I know) is slightly different, that you didn't think you would need to raise the social/medical considerations because you were confident of getting a place under the distance criterion, but the LEA is likely to argue that it is up to parents to mention anything that they think may have a bearing on their child's admission to school.

Unfortunately, many parents turn up at appeal with evidence of social and medical considerations which weren't mentioned on the initial applications. Usually, the best that the panel can do for them is refer the case to the LEA's decision-making body for social/medical cases. If they agree that there is evidence that one school is better able to meet the child's social/medical needs than other schools, that will move the child into the social/medical category on the waiting list, but it won't immediately get them a place. If ever I get around to writing the MN Guide to School Admissions, it will say in bold capitals mention any social/medical considerations upfront, because if you don't the LEA can't be blamed for not taking them into account and the best you can hope for is moving into a higher priority group on the waiting list.

Thanks all for the responses... Quite a lot of points to respond to, so apologies if I miss any out...

1. mintyneb - thanks for the concern, and sorry to hear about your DD's allergic reactions - our situation isn't as severe, although we do know one family who are in a similar boat to you - very difficult... We have been referred to a consultant for our DS (and also our younger DD, has has something similar)...

1. phr47bridge, admission and PanelChair - thanks for the comments about measuring distance etc - The 2010 Admission Code states: "Admission authorities must explain clearly how distance from home to the school will be measured including the points at the school and the child?s home from which distance is to be measured (for example, the main school gate, the front door to the home, how flats will be treated)." The brochure published by the LA simply states that they use the "address point" for the school and the house, but does not give any indication of what the so-called "address point" is.

We made the point that, based on the LA's relevant brochure, it is impossible for a parent to verify whether the distances have been accurately calculated, because you don't know what exact points are which are being used for the measurements.

Of course, just they haven't given a clear explanation of how the distance was calculated, it doesn't mean that they got our distance wrong or calculated it in an unfair way, it's just that we can't check it. That's why we suggested an adjournment, but the Panel said no, the LA will correct things if they got it wrong.

The other point we raised is that if they use inconsistent measurement points for different schools, then that seems unfair. There should be a consistent approach across them all. (Otherwise you could find yourself in a situation where your 2 closest schools just happen to use different types of points, which puts you further away from both...) The rules have to be fair. The Panel did indicate that they agreed with this point. I guess I'm concerned that the Panel should have adjourned so that the LA could explain what's going on, and thereby enable the Panel to reach a decision on it once they've heard the LA's explanation...

1. admission - thanks for your point about speaking to the Ombudsman if necessary... I did get the impression that the Panel were pro-LA (at one point in the group hearing, the Panel Chair started rolling her eyes when someone else was making a point...)

The letter from the LA did not discuss what qualifying measures they could have taken, and when I asked the LA rep whether they had looked into hiring additional teachers etc, I got little mileage from the Panel... I was surprised by this, because I'd read somewhere that the LA is supposed to discuss what qualifying measures they could have taken, so I thought the Panel would back me up on this... But maybe that doesn't apply for ICS appeals... (All gets confusing sometimes...!)

1. In terms of being 14th on the waiting list for the 2nd closest school, I think it's because it's not our closest school, so we are category 6, whereas people for whom it's the closest school rank ahead of us as category 5...

1. In terms of us not having raised our medical/social issues when we first applied, it's because it literally did not cross our mind that we wouldn't get in. It seems that there was a baby boom in 2008 which has caused this unusual position - we feel like we've been penalised for not knowing about this... Would the LA have known that there was an extra bulge of kids coming down the line? If so, why didn't they take qualifying measures or warn people etc... Also, why couldn't we then raise these issues in time for the continuing interest list (which has now been run twice) - it's not like we were trying to play the system in anyway - apparently we can raise them now, because the continuing interest list has finished and we will be treated as an in-year application... Anyway, I'm guessing that not many of you may agree with me on those bits, but sometimes its good to get something off your chest...!

1. Tiggytape and others - thanks for the good advice about the waiting list and arguing that we should be able to go on the waiting list for more than 3 schools/in a higher priority category - sounds like this is what we need to do...!

Thanks again for all your time on this.

Even if you knew exactly where the address point lies on your property and the school, you would not be able to verify the calculation. LAs use expensive software to calculate distances. This is far more accurate than anything available to you. If they are using straight line distance they are almost certainly correct unless they have measured from the wrong property. So many LAs use address points without saying where this falls on your property that I suspect most appeal panels and the LGO would find that this meets the requirements of the Admission Code.

Qualifying measures are only relevant in ICS cases. The current Appeals Code does not require the admission authority to specify what qualifying measures they can take. Even if they did, it wouldn't help you. You may be able to show that they can cope by rejigging the classes or changing the way staff are deployed but the panel cannot make a decision on that basis. They have to assume the school will stick with the current class structure and staff deployment which means the only qualifying measure they can take is to employ an additional teacher.

Even if there is no baby boom, you may find that there is a rush of siblings applying for a particular school, for example, reducing your chances of getting a place. The LA cannot know about every factor that may affect your chances of getting into a school. That is why you should always submit any evidence you have that would get your child into the social/medical category. However, I do think you have a case for saying that you should have been allowed to raise these issues for the continuing interest list. I cannot see any justification for the LA's refusal to do so. If you would have got a place through the continuing interest list if they had taken your social/medical issues into account I would raise that at appeal.

Lucca,
You said that you missed out on the second preference school by 1.5 metres. That is a very small distance and I would expect you to have been, with that small distance, the 31st applicant if it was a 30 intake. To now be 14th on the waiting list just does not sit well with me, That means that something like 13 applications have been received that are higher on the admission criteria order than you. Its certainly possible but it seems something that needs careful checking.
The rules around infant class size regs have changed but it is still necessary to confirm that there are no measures that the school could take to avoid breaching the infant class size regs without prejudicing the provision of efficient education or efficient use of resources. Obviously the main measure is the employment of a further school teacher. i would expect the presenting officer to say this and say that there was not sufficient funding to allow this to happen. In some respects it is a fig leaf situation in that it is only necessary to say that not prove it beyond reasonable doubt.
It is quite possible that in your preferences that you choose that the distance would be measured differently. All community schools would normally have the same admission criteria but faith schools, foundation schools and academies are their own admission authorities and therefore can set their own criteria. So one could be to the address point on the building, the other to the front entrance of the school. The important thing then would be to confirm that this is in deed what has been measured.
There is no reason why you cannot raise the medical issue now. This may move you up the waiting list if the LA agrees with you but it will not get you a place. If the LA will not accept the idea of you being considered under this criteria then suggest that they think about somebody moving house - they would certainly use the new address and there is no difference.

Hi there, just a quick post to update everyone who helped us last week. We weren't successful in our appeals. The council (rightly) pointed out that we hadn't furnished them with any information regarding our medical and social issues when we applied and therefore their decision can not be considered to be unreasonable.

We weren't entirely surprised but where there is life and all that.
Anyway a big thank you to all those who took the time to read my posts and reply. It was very much appreciated. x

Oh dear.

Has the LEA accepted that there is a medical/social need based on your son's allergy and your PND and moved you into that category on the waiting lists?