Help with appeal (in year application)

[oznog]

Hello- I'd love some help and advice on my reception place appeal. We are moving to a new area and have not been able to gain a place at any of the 3 local primary schools. (school one: full no places to offer. school 2:full infant class size limit, school 3: unwilling to admit out of year group). Anyhow we are questioning how the school can be full. it has a PAN of 45 for reception and employs 2 teachers and 2 TA's for the classes. Year 1 and Year 2 are both 2 form entry with 60 pupils. When I looked around the school I was told there are places in year 1 currently and it could be an option to try and transfer my child there next year (as a year one student). I am still awaiting council info on net capacity and number on roll currently. But I am struggling with how they can currently have a 45 intake (assuming this is a class of 23 and 22) and not be able to take one more. I would also like any general advice on preparing my appeal statement.
Basically the reasons for wanting this school are

• its walkable (anything the council allocates will be over 2 miles away)
• we are new to the area (so have missed out on normal admissions round) but importantly need a local community school to get involved with our new area/make friends/meet people at the school gate etc

-follow the ethos of the school and think it is the best fit to what our child is currently experiencing

• we very much want our children to go to a non faith based school (potentially the one allocated over 2 miles away would be non faith but the other 2 in walking distance (and our catchment is faith)
• can any points/leverage be made for the fact that the school is our 2nd nearest school but we are not in the catchment for it?! this has alot to play as children without siblings already in school and not in catchment are further down oversubsctiption criteria-- basically i'm asking can a case be made that we are closer than some children admitted/higher on waiting list but penalized due to being in a different catchement (to a faith school we do not want)

You quoted directly from their prospectus - google it and it shows you the prospectus, hence the school.

I'll try and break down the numbers after dinner, if others haven't got there first - it can seem confusing.

if it is ICS what is a reasonable distance?
") children who move into the area outside the normal admissions round for whom there is no other available school within reasonable distance; "

Normally up to 45 minutes travel time. Depending on your area, that could be quite a distance. Dd1 goes to special school 10 miles away and it takes around 20 minutes.

i've also found this newspaper article which mentions building work (alongside the increased admissions in prospectus) "the number of spaces at &%&%& Infants from 45 to 60 which has been made possible by remodelling and extension work. "(9/2012). So they have increased capacity- but what would make this only a temporary thing? If it is purely physical space in the reception area can an argument be made that with 45 there is a class off 23 and of 22- why not just one more for two classes of 23?

ok no joy then on the reasonable distance thing/alternative school. It does seem to be if I'm to have any chance it needs to be 1)not ICS (which also my letter clearly says it would be for school 2 but not for school one- and as I say I queried verbally multiple times on the phone) and 2) I must determine if there is a way to question the 'fullness'.. Is this possible?

If it is not ICS, then you need reasons, the stronger and more specific the better, as to why this school is the best one for your child.

Basically a non-ICS appeal comes down to balance of prejudice. If you can show that the school could easily take another pupil - which you might be able to on the size thing, there are some figures around about sizes of classroom for x numbers of pupils - then that is good but not sufficient. You also need to show why this school is a specifically good fit for your child. It can be something about the facilities, the extra-curricular activities, the physical layout... pretty much anything as long as it is specific to your child. It could be 'they have a gymnastics club which is coached by a trained cioach, and this is something my child shows aptitude for', it could be 'my child has specific difficulties with language, hence deferring entry, and there is a member of staff with specific expertise'. It can't be 'their results are better'. Bizarre as it seems, while differences in music provision is fine to mention, it is assumed for admissions purposes that the general standard of teaching and learning in all schools, for those in special measures to outstanding schools, is the same....

Ok, so numbers.

The law says that infant (YR, Y1, Y2) class sizes cannot go above 30 save for certain exceptions. That means that any class where the majority of the children are in years R, 1 or 2, must be 30 or under.

The situation at the school in question is:
As at Sept 2015
2012 - PAN 45 (Now Year 3)
2013 - PAN 60 (Now Year 2)
2014 - PAN 60 (Now Year 1)
2015 - PAN 45 (Now Year R)

So, currently, if full, the school has 165 children in YR-2 (45+60+60). So the isn't strictly infant class size, because to accommodate those 165 children, in classes of no more than 30, there would have to be 6 classes (30 x 5 = 150...15 left over).

However, you have to take into account future class size. Let's look at next year:

As at Sept 2016
2012 - PAN 45 (Now Year 4)
2013 - PAN 60 (Now Year 3)
2014 - PAN 60 (Now Year 2)
2015 - PAN 45 (Now Year 1)
2016 - PAN 45 (Now Year R)

If full, the school would have 150 children in YR-2 (45+45+60), so should be able to operate with 5 classes (30 x 5 = 150). However, if they take your DS, other than if admitted on appeal, he would take the number up to 151, which would mean that the school would have to employ another teacher.

If your DS was admitted on appeal, then he would remain an excepted pupil until such times as he wasn't in an infant class any more, or the numbers fell back below PAN.

Unfortunately, the fact that there could be a future breach of ICS makes this so much more difficult for you. Rather than arguing that the benefit to your DS outweighs the difficulty (prejudice) to the school in admitting him, you have to show that:

-The authority made a mistake (and that mistake led to you being denied a place that was rightfully yours)
-The authority was 'unreasonable' (that means 'so perverse that a reasonable person could not have reached this decision')
-The admission arrangements were unlawful.

I can't see that you'd be able to argue any of those. Sorry. ICS appeals are horrible and several panel members had refused to sit on such appeals in my LA, because they found the severe limitation on their power to admit distressing in some cases, when ordinarily such cases would have easily won a prejudice appeal.

This was what I in effect said earlier in the posts.
The problem for me and for OP is that the school and the LA seem to be making it up as they go along to some extent. They can exceed the PAN of 45 - this is what they did in 2013 and 2014. However that was for two years only.They cannot put up the PAN just to suit themselves. They could I suppose again decide to exceed PAN in year 1 but in that situation they have absolutely no possibility of defending an appeal now in reception.

But then there is the suggestion that building work has taken place to allow the expansion of the year groups to 60. In that case the PAN of the school should be higher as it in effect has at least one more classroom than previous.

Somebody does not understand future prejudice and is telling you it is not an infant class size case, when it is, based on the information you have given. That creates an interesting problem at appeal as you have been advised it is not. Have you got that in writing?
If you have already appealed I would wait and see what the papers you will receive before the appeal actually say. If the LA admission authority and the LA legal people have done their job then they will have realised that it is infant class size but my suspicion is that because of the messing around that they will not recognise the mistake until the appeal hearing or maybe even not at all. You need to prepare the best possible case in writing based on it being a normal prejudice case.
As an admission panel Chair my reaction to this situation would be to call an adjournment whilst we made sure of the facts. I think I would not want to go further without getting appropriate legal advice but at the end of the day without any more info my gut feeling is that the admission authority presented a case which was the wrong case and as such are unlikely to be able to prove prejudice and therefore lose the case. However all panels are different and they may well receive legal advice that is different.

Thank you for all your useful help and for taking the time to break down the numbers. I guess I will have to wait until they send their case and documents through to see what is going on with numbers and net capacity. They have 6 classes currently. Why would they want to reduce their numbers and go to 5 classes? (especially in regards to 2012 facilities improvements?)

Hmm...that raises an interesting question, Admission. Does an ICS appeal become an ICS appeal because the LA present it as such, or does it become one because it fits the criteria of being so?

If the panel reviewing the papers spot that it's ICS, then they surely would have the obligation to treat it as such? In which case, the appeal would have to be rescheduled to allow time for the correct papers to be drawn up.

I'm not sure that a panel could ignore the ICS regs just because the LA made a mistake?

I have not got the not infant class appeal in writing. It is only in the advice in my rejection letter school one

"Unfortunately, the Reception year group is full and there are no places available to offer to XXX. I appreciate that this will be a disappointment to you, but the local authority [LA] as the admissions authority has a responsibility to make sure that schools do not become overcrowded. To admit further pupils to the year group would prejudice the provision of efficient education and the efficient use of resources.

Parents not offered a place at their preferred school have a right of appeal to an independent admission appeal panel. The panel is completely independent of the LA and the school who have no say over the panel’s decision.

If you wish to appeal, please complete the enclosed form SA5 giving reasons for your appeal and return it by 13 October 2015. To help you, I have also enclosed an information sheet [No 5] which gives guidance for parents about appealing. If you need any further information, please contact me.

School 2:
Primary School is also full in the Reception year group and there are no places available to offer to XX Again, I appreciate that this will be a disappointment to you, but the governing body has a responsibility to make sure the school does not become overcrowded. Under current legislation they also have a statutory duty to ensure that all infant children are taught in classes of 30 or less.

As this school has voluntary aided status, the governing body is responsible for admissions and decides who should be offered a place in line with its admissions policy. I have enclosed an appeals information sheet which I hope you will find helpful.

Parents/carers not offered a place at their preferred school have the right of appeal against the decision not to offer them a school place. Information about the appeals process is enclosed. The decision to refuse a place for XX at the above school was based on the legislation that limits infant class sizes to 30 pupils. Admission appeals panels have limited power to uphold an appeal in this case. The panel is completely independent of the LA and the school who have no say over the panel’s decision. You are advised to read the attached information on appeals before deciding whether to appeal.

If you wish to appeal against the decision to refuse a place for your child atXX Primary School it should be sent to the Clerk of the Governing Body at the school address. You must explain why you feel your child should be admitted to the school in the very limited circumstances allowed. "

I have already sent my appeal letter in and believe the appeal is scheduled for mid October.

So what is likely to happen? I'm really spinning round in circles now!?

You'll get an appeal bundle through the post, which will set out the LA's response to your appeal. This bundle sent to the panel prior to the hearing.

In my LA, as soon as we received the bundle, someone would email the clerk and say 'er....isn't this ICS?' so we certainly wouldn't wait until the morning of the hearing to clarify. However, we wouldn't then expect you to switch your argument in the days leading up to appeal. You'd have to be given enough time to process the situation and respond accordingly.

I'm not sure that a panel could ignore the ICS regs just because the LA made a mistake?

The critical thing in this case is what decisions have been made by the governors. Have they decided what will happen in future years? If not, on past LGO decisions the appeal panel must assume that there will continue to be 2 classes in each year even if they think that is completely unrealistic. In that case this would not be an infant class size appeal. If the governors subsequently decide to reduce the number of classes it would be that decision that caused class size prejudice, not the earlier decision to admit an additional pupil. On the other hand, if the governors have already decided to remove one class next year or the year after this should be an infant class size case. The point is that ICS rules are about what will happen if the pupil is admitted, not what might happen depending on decisions that have not yet been taken.

So what happens if the LA makes a mistake and presents an ICS case as an ordinary prejudice case? My view is that in that situation the panel must deal with it as an ordinary prejudice case. I base that view on the Admission Appeals Code paragraph 4.2 which says that infant class size rules apply "where an admission authority refuses to admit a child on the grounds that the admission of an additional child would breach the infant class size limit... Decisions on appeals for infant classes where the refusal was for any other reason should be made in accordance with the two stage process in section 3" (Section 3 describes the process for ordinary prejudice appeals). It therefore follows that if the authority refuses to admit the child on other grounds the appeal panel must deal with it as an ordinary prejudice case even if the authority has made a mistake and should have refused admission on ICS grounds.

someone would email the clerk and say 'er....isn't this ICS?' so we certainly wouldn't wait until the morning of the hearing to clarify

Interesting. If I was representing the parents and discovered that this had happened I would use this as the basis of a complaint to the LGO/EFA if they lost. I would argue that it is not the job of the appeal panel to help the admission authority prepare the correct case, that this had clearly disadvantaged the parents by turning an ordinary prejudice case into an ICS one and undermined confidence in the panel's neutrality. Of course, that would only help the parents if the LGO/EFA was willing to recommend a fresh hearing AND direct the admission authority to submit an ordinary prejudice case to that hearing. The LGO might be willing to go that far but I would be very surprised if the EFA would.

4.2 does suggest that you should hear the appeal on the basis on which the refusal was given. Also, I can see the argument that if they are operating 6 classes you can't assume they want to drop to 5.

I'm still awaiting more information from the school- but it seems they will be making their prejudice case based on floor area arguments. However when I was at the school this week on another matter I asked about the YR1 thing and was told by the person working the desk that there are no current plans to change the setup of the school/classes and that there most likely would be 15 'spare' places in year one at the start of next year (only 5 have been taken in this year but will probably fill up by end of the year).
Then today I have been sent historical data on the PAN and I must say.. its very confusing.. can anyone see any sensible pattern here?
columns are:
Year, PAN, September Reception Intake, Reasons for admitting over PAN
Total no. on roll in School for last 5 years only (as at January in each year)

2005
58 47
2006
58 32
2007
53 35
2008
53 57 Increased PAN
2009
53 35
2010
45 45 119
2011
45 30 129
2012
60 59 108
2013
60 51 132

2014 45 47 1 successful appeal, 1 Looked After Child 139
2015 45 47 2 successful appeals 163

Sorry that's horrible to read- let me see if this is clearer

Your biggest problem from that data is that the school is already 2 over PAN. That means that even if you're no.1 on the waiting list, 3 children would need to leave before you'd get a place.

Your appeal will have to be compelling to convince a panel that a school which already has two extra children in the year group should have to take yet another one.

Ah Lougle, there is an interesting point. In fact 2 children have already left since term started so they are back down to 45.(This was part of my discussion this week with the school office worker and is also reflected in the data I was given when I phoned up last week about numbers in each year group) Can this help my argument?

The data you have posted is not the same as you quoted in earlier posts.
From the data above this says that

Current reception has a PAN of 45 and they have 47 in it, so 23/ 24 in classes
Current year 1 has a PAN of 45 and they have 47 in it, so 23/24 in it
Current year 2 has a PAN of 60 and they have 51 in it., so classes of 25/26

On that basis if the appeal is for reception year the classes are no where near the 30 maximum and the same for year 1. In year 2 there are currently 51 and in theory this could increase to 60 as per the PAN and up to that point the school must admit. If they got to 60 this year and there was an appeal this year for a year 2 place then this appeal would be an infant class size case.

However if you assume (which you must) that the PAN is going to stay at 45 and assume (which you must) that the school is going to have two classes in reception, year 1 and year 2 then no appeal can be an infant class size appeal because no year group can exceed 30 in a class without significantly exceeding its PAN.

For the school to argue infant class size appeal then they would have to show that they only have 5 class rooms available. This would then mean that longer term they are going to have 2 reception classes of 22/23 and three year 1 /2 classes of 30. But they simply can't do that when they currently have 6 classes and are using all 6 classes. They would have to provide a very, very good reason to show that they reducing to 5 classes.

The fact that there have been successfully appeals for both reception and year 1 prove that their current system has been in place for at least 2 years and that appeal panels have not been convinced of the prejudice to the school.

The 15 spare places is a red herring in all this. The school cannot just magic up an extra 15 places when they want to. Year 2 has a PAN of 60 and therefore the school has by law to admit to 60 but when year 2 moves to year 3 and year 1 moves to year 2, it does not mean that year 2 has more places, the PAN stays with the cohort as it moves through the school. The PAN next year in year 2 will be 45 as it is now with the cohort in year 1.

I am not sure how they can make a case based on floor areas if they have 6 classes which are of a size for 30 pupils or have been in the past. What exactly are they saying?

The initial rejection from the school to my mind was in correct. They somehow believe that it is an infant class size appeal whereas the data says it should not be. The decision to not admit should have been based on the school having exceeded the PAN and other factors, that is a normal prejudice case.

There is something very wrong here in somebodies understanding of Infant Class Size legislation or in our knowledge of the school and probably the best think is to wait until the formal papers come out and we can see exactly what the case is being based on.

No, admission, I don't think it's the school. We, on this thread, were pondering if it could be ICS, but the school has considered it (correctly) to be a prejudice appeal.

The only thing I can think of is that the school would argue that when they had 57 in YR they used their bigger rooms for the 28/29 split. Now those children are in Y2 they are still in use. The current YR are using the old nursery space, which is two interconnected rooms, making the usable space less than normal because one wall is sacrificed for the connection. Therefore, it doesn't have the same space as the other rooms.

Do you have room size data yet, oznog?

Ok- I've got the admission papers in the post so now need to turn around my appeal submission. From what I can tell they have enough space but are using some creative counting (i.e. only counting each classroom but not the adjoining art and design space or corridor between the rooms.
classroom s are 52.94m and 43.12m in between these is an area labelled art and design 19.4 and corridor 10.39. to access theses areas there is a different cloaks/circulation/teaching area of 37.11.
The school statement is only counting the 95 square meters (the 2 classrooms not the interconnected space- which was definitely part of what was being used when I looked around. as the space to be used and stating that a child in 3-5 should be provided with 2.3m (I have figures for a class of 30 at 49m and they claim they should be providing 103.5 for 45. (from my calculations they are already providing 114.56 would is listed (in my book-is this right) as sufficient for 60.

Other arguments they make include how they struggled with a reception class of 50 LAST year (they had originally planned to have one class of 30 and a mixed reception nursery of 15R 20 N -to get around class sizes )but were forced to have two classes one of 30 and one of 20 and employ a separate reception class- they claim that they effect on continuous provision (sand tables, stack etc) had to be removed and the effect was a crammed environment- and thus a detriment to pupil's education. This year they site needing space for autistic pupils and 1to1 work and having to do this in the cloakroom- which is a very bright open space overlooking the play area and a generous 38.69m. They have 8 of the 45 YR children with SEN support and 2FTE teacher and 1 FTE HLTA. They are arguing that they are still reeling from the effects of last year's oversubcription and keen to get back down to published numbers (which they currently are)
From what I can tell they have space- am I interpreting wrong?
The papers also confirmed that it is space for 60 in YR1 and YR2 with. With a net capacity of 157 and an indicated admission number of 52. However their admission is 45. Interestingly the capacity based on classbases is 179.

Would this be best continued via PM?

It's best to keep it open so people can contribute as they see fit.

I don't think it's creative counting not to include shared spaces. The class space is the space used for whole class teaching. Think of it logically: if they can't get all of the class in the room at the same time, they can't teach the class as a whole. Nobody would want their child sat in a shared space while the rest of the class were taught.

I have known panels to take into consideration the shape of a room, if it is argued that an l-shape makes some areas of the classroom inaccessible during whole class teaching.

It's hard to know if the space for children with ASD is generous. It depends how many children need to use it at any one time and if course 1:1 means an adult for each child so more space needed. It doesn't sound great to be using a cloakroom for this purpose and that indicates that they are tight for space.

8 children with SEN support is not easy to decipher. If that was 8 children with statements/EHCP it would be very high. But if it's 8 in total whether needing a little help or lots, it's not a far cry from national average. Either way, they have their hands full.

The details I have state 0 for Statement/EHCP and 8 for SEN support in YR. this year

What is the suggested space for pupil or per class of 23? (as that will be my argument? 2 classes of 23)
one classroom states it has 30 basic workplaces and 3 resource workplaces
the other classroom states it has 26 basic workplaces
the connected space is rated for 4 resource workspaces
and the cloaks/corridor for 1 resource workspace

I see what you are saying about getting everyone into the same class but surely if their statement says " We have relocated nursery to XXX so that all the Reception children can work alongside each other in an environment that has free flow access to the outdoors"- surely this means that all that space should be counted as the used space for YR? Physically this is the space inbetween the two classrooms.