In year appeal - no spaces in area

[Yonyon8]

Hi everyone, I realise this is similar to a thread posted only this morning as well as others on here previously (apologies) but the particular circumstances don't quite fit and I'm really struggling, despite spending pretty much all week researching. Any help much appreciated.

Basically we are moving back to the area my husband and I grew up in - our parents and siblings etc all still live in the area and would share school collections/drop off for our daughter, who is currently in reception due to go into Y1 in sept. The problem is there are 3 schools in the immediate vicinity all of which are full for her year group (not for others) and the next closest 3 in the wider surroundings are also completely full for her year group. This is an unprecedented year and never before have all schools been full for a particular year group. The closest school potentially with a space (yet tbc) is 1.6m away into the countryside along windy and hilly single lane country roads with no pavements or lighting in places - this school only has 48 pupils in the whole school. The next closest is 3.7m away in a nearby village.

I have spoken to the council admissions dept and they said because they have verbally told me all schools in the area and surrounding are full, I can (and should) make my appeals immediately after submitting my applications for the closest 3 schools. I did this yesterday (submitted applications immediately followed by appeals). I also waived my right to notice of the hearing so as to speed up the hearing.

We are due to move in the 6 weeks holidays at some point and quite honestly, if we can't get a place at one of the 3 closest schools (any of the 3 we'd be happy with), then we would seriously rethink the move as a whole as we decided to move in the first place for a better area in which our children will grow up and go to school. It would therefore defeat the object if she had to go to a school in one of these neighbouring villages that I mentioned above.

I'll be honest admissions have not been a great deal of help practically speaking, nevertheless I submitted my appeals based on the argument my daughter should be an excepted pupil by virtue of the fact we have moved into the area and made an application in year (outside the usual admissions round) and no other school can offer her a place within a reasonable location. I used the rule about under 8's not being expected to walk more than 2m to school as a benchmark to say these 2 schools are not within a reasonable distance (because of sheer distance and/or access issues mentioned above re country roads etc).

Howver - technical question but should the ground for my appeal be based on the fact there has been a mistake (ie admissions or whoever didn't apply the exceptional circumstances and classify my daughter as an excepted child), or is the ground for my appeal actually that my child is an excepted child? I know that's a technical point but I'm trying to be as accurate as I can and don't want to lose on a technicality.

In terms of the practicalities, I see a lot of parents talk about waiting lists. None of the schools I have talked to have admitted to having a waiting list. They say they don't have them. In addition, admissions have given me conflicting information eg saying I should ask one of the 3 schools (who expects to have one place come up in sept) to phone me as and when that space comes up so I can call admissions and apply for that place. The head at that school said they shouldn't tell me that as they have 2 others contacting him about that same place and it's unfair for them to call anyone so it's a case of whichever family call him at the right time (ie straight after the other child gives notice of leaving) that will get the place. That's only one example but admissions generally don't seem to know what's going on in their schools, I actually had to push them to confirm which schools were the closest to my new address which had space instead of me calling each one myself (which I did for the closest 6 anyway).

The final point is that one of the 3 schools (my preferred one - nephew went there, my daughter went on many occasions for shows, sports days and to pick him up regularly, plus my cousin works there) the head there said it would be interesting to se how they dealt with my appeal since it's the first time the 6 schools in the wider area have all been completely full for this year (my nephews year only had 18 in!)

Can anyone offer any advice whatsoever? From what I've read it seems it might be dealt with slightly differently to a regular infant class size appeal made during normal admissions round, since it is in year and I am relying upon my daughter being an excepted child due to no school in reasonable distance.

I'm driving myself literally mad reading so many regulations, statutory instruments, guidance notes and mumsnet articles (luckily I'm a solicitor so I'm used to reading legal documents - but it's far more stressful when you're family's future is affected!)

Sorry it's so long but wanted to be as specific as I can.

Thanks in advance

I'm fully aware what the law says and I'm not saying the schools should just ignore it even if they could.

What this is about is a difference in opinion between whether or not my daughter is an excepted child and I do not see how you can all say categorically she is not an excepted child. In the absence of applicable guidance or definition of 'reasonable' it is a a purely subjective interpretation by individuals concerned.

It's based on admissions and appeals experience.

I'm afraid nothing you have said suggests your DC should be treated as an excepted child. Lots of parents would prefer a school within walking distance, but this simply isn't grounds for a successful appeal.

We had to wait until Y3 to go to appeal despite our dc having SEN. Any earlier appeal of any sort would've been ICS in year or not.
I wonder if you're confusing the idea that an ICS appeal after the initial admissions round can succeed where a decision is perverse and unreasonable. That won't apply here though.

From the admissions code:

"The excepted children are: a) children admitted outside the normal admissions round with statements of special educational needs or Education, Health and Care Plans specifying a school; - this does not apply

b) looked after children and previously looked after children admitted outside the normal admissions round; - this does not apply

c) children admitted, after initial allocation of places, because of a procedural error made by the admission authority or local authority in the original application process; - this does not apply

d) children admitted after an independent appeals panel upholds an appeal; - this does not apply

e) children who move into the area outside the normal admissions round for whom there is no other available school within reasonable distance; - I'll come back to this

f) children of UK service personnel admitted outside the normal admissions round; - this does not apply

g) children whose twin or sibling from a multiple birth is admitted otherwise than as an excepted pupil; - this does not apply

h) children with special educational needs who are normally taught in a special educational needs unit attached to the school, or registered at a special school, who attend some infant classes within the mainstream school - this does not apply.

Ground e) children who move into the area outside the normal admissions round for whom there is no other available school within reasonable distance; will not apply because there is an available school within 2 miles (1.6 miles) that has a space for your child. Even if it does not, there is a school within 4 miles that has a space. In which case the council must provide transport, but it is still within a reasonable distance. Neither of the schools are beyond a reasonable distance so your child doesn't qualify as an excepted child.

If it is of any use, I am saying this as someone who used to sit on admission appeals panels.

In the absence of applicable guidance or definition of 'reasonable' it is a a purely subjective interpretation by individuals concerned.

The definition of 'reasonable' has been tested and been held to be defined as 'a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it'. (Lord Diplock)

Trust us that a decision that a school place 1.6 miles away won't meet that criteria.

It does not go on to say ...and the LA is unable to offer suitable transport

No it does not. However, it does not say "a reasonable WALKING distance" which is why it does not need anything about the LA being unable to provide transport. You cannot limit the distance by insisting on walking. Yes, more than 2 miles would be unreasonable if the child had to walk as, for a young child, that could well take 45 minutes or more each way. However, as soon as the LA steps in and provides a taxi or some other form of transport the distance becomes reasonable.

If the law was meant to be interpreted the way you want to interpret it there would be no point requiring LAs to provide free transport for children under the age of 8 allocated to schools over 2 miles from home. They would all, by your argument, be excepted and could be admitted to local schools. That is absolutely NOT the way this is interpreted.

In the absence of applicable guidance or definition of 'reasonable' it is a a purely subjective interpretation by individuals concerned

I have mentioned the guidance which gives the 45 minute rule. Prior to this guidance some appeal panels considered journeys of up to an hour each way to be acceptable. However, most (possibly all) now follow this guidance and only regard shorter journeys as unreasonable in exceptional circumstances.

I can say categorically that your child is not excepted because within the regulations she is not. You have told us that her current school is only 35 minutes travel time away. That is within a reasonable distance.

The admission authority has made a judgement on whether or not your daughter is excepted and has decided she is not. The appeal panel can only overturn that decision if it is Wednesbury unreasonable. Given the government guidance it is clearly not Wednesbury unreasonable.

As Meditrina says, this is based on admissions and appeals experience as well as an understanding of the relevant law and regulations. This is the way the regulations are interpreted by appeal panels. The LGO (or EFA if it is an academy) follows the same interpretation. If you disagree you can always go to judicial review. However, there again the question will be whether this interpretation of the regulations is Wednesbury unreasonable.

I'm sorry. I know this isn't what you want to hear. But within the regulations you should lose your appeal. That doesn't necessarily mean you will lose. Appeal panels do make strange decisions sometimes.

Sorry, terrible grammar in that last sentence. It should have read that a decision to allocate a school place 1.6 miles away won't meet the criteria of unreasonable.

I'm aware of the Diplock judgment but what I meant was reasonable in this particular context, ie what is considered a reasonable distance and why they didn't just state in that same legislation what that would be.

**The admission authority has made a judgement on whether or not your daughter is excepted and has decided she is not.

Sorry can you please clarify this - how/when have the admission authority already made this judgment?? I haven't had anything from them they simply explained to me that since the 3 schools I applied for are full (30 kids) it would be a better use of my time if I could submit appeals at the same time as the applications in order to get my appeal heard ASAP. They said this on the basis that because they know the schools are full they know they will have to come back and say no because they are bound by law
Only to accept 30. She never mentioned anything about my daughter being considered (or not as the case may be) an excepted child at this stage, she said all of that is dealt with in my appeal?? She said that exceptions to the rule of 30
Kids aren't considered until the appeals stage, so how can they have made their mind up that my daughter isn't an excepted child like you say they have??

Yon

I think PRH meant that there was no exceptional criteria that automatically applied to you eg formerly LAC

with regard to reasonable not being defined in the wording, surely that's very common and it's then down to case law to determine - others have posted above re judgements on distance etc that have been deemed reasonable.

If you were advising a client on this case, what would you do? It must be really hard to take the emotions out of it as clearly family ties are taking you back, but it's best to be clear eyes if you can.

It was the fact she said they have made a decision which I'm not clear on as I don't know when, how or by whom this decision has been made.

I know exactly what you're saying in relation to advising my own clients and whilst I do not profess to know anything about family law matters even remotely related to education law I can't help but think as these are strange and unprecedented circumstances for the area (ie in all previous years in history at least one other school in the area has had space), this must have some bearing in the current situation and the outcome of my appeal. The drafting of the guidance is not so strict so as not to allow any room for even an element of discretion and perhaps some of you would argue generous interpretation so as to view my child as an excepted child for the current year in the particular area given the unprecedented circumstances. So yes I am probably arguing more than I would if I was not personally affected, however I remain of the opinion that it is not so black and white taking the circumstances at face value (emotions aside) and I will remain of that opinion despite others' advice.

"I can't help but think as these are strange and unprecedented circumstances for the area "

They might be for your area but they certainly aren't for the nation. For many years now, schools in many areas have been full, parents haven't got any of their top six choices even with a standard application, children have been left without any place at all as LAs scrabble to add a bulge class at the school that will be least badly affected.

In the context of that, can you see that your circumstance is not likely to be "exceptional enough" just because it's the first time your area has had a full school year?

It's an extremely common situation. Happens in my town all the time. The fact that it hasn't happened in your particular geographic area (to your knowledge) is irrelevant.

May well be irrelevant as some of you are saying, but the fact that I'm pretty much alone on this situation should be distinguished. In areas in London I can see how such circumstances would be commonplace, however the LA's presumably deal with this by bulge classes in certain schools as someone has mentioned. However in my situation they simply wouldn't do this as it would not make sense. That's why I think the fact it is unprecedented in my area and I am on my own (from what admissions have told me) should be a consideration in my appeal.

It's sad and ironic that having come on here for help and advice and thinking that I would be greeted with helpful comments and sympathetic ears, I actually feel like I have been taking part in the hearing on here.

In addition to all the factual expert advice, I think there is something else you aren't considering op. Your dd might be only one more, but throughout the country there are countless 31st children, some schools will have dozens of them, all with reasons as good, or even more compelling than yours. And however sympathetic appeal panels may be, you can't let every 'just one more, 31st child' in to a school'. Hence the reason they have strict criteria.

I also wonder if perhaps there is some confusion about the criteria for special circumstances/ exceptions. I'm not sure of the correct terminology, but the one where eg a social workers child shouldn't be in a class with dc involved with the sw, or police officers dc with dc from a case, witnesses protection etc. That often gets misinterpreted at initial admissions by parents as journey to school, family circumstances etc, so is it possible it's that exception (whatever it's called?) you think you can appeal under op?

OP a LOT of posters have taken the time to give you their very well informed views of your daughter's school situation.

The fact that you disagree with their views doesn't make it sad or ironic.

You can whine "it's not FAIIIIRRRR" as much as you like but it doesn't change the law.

Ironic? Sad?
If you wanted a bit of fluffy "Oh hun that's terrible. You should deffo tell them your dd should be with family" then you came to the wrong place.
Having been given sterling advice on here by the same crowd offering you advice I can only advise you to take what they say on board. We were the only winning case on our appeal day.

You don't see it now, but the comments are helpful, many by knowledgable people (a coup,e of whom are serious experts in this field(0).

The bottom line, no matter how little you want to hear it, is that the circumstances you describe are extremely common. That it has not happened before with this particular set of schools is simply not relevant. Whether there's one, three or ten of you who have moved into the area when the schools are full is also simply not relevant.

People who move to an area where the schools are full have the basic choice of: accepting a school a bit further away (plus normal LA transport), seeking a private school or home educating. You are lucky in that your previous school is within a reasonable distance.

If there is a school with a vacancy and you turn it down (eg the 1.7 mile away school you dislike) that ends the LA's obligation to find you a place (or to provide free transport to any school more distant than that one).

As you do have a distinguishing feature to your circumstances - an existing place in a school at a reasonable distance - the. I agree with previous posters that your best bet is to continue there, and press with the other affected families you mention for waiting lists to be maintained for longer than the required minimum.

Lurked...no the only exception I think is relevant is the one about children moving to the area in year.

I'm not just sat here whining it's not fair I've actually spent considerable time looking at all sorts of websites, legislation and he like trying to find any little snippets of information that may be of assistance in our case, rather than just sit back and accept the fact there are no spaces. Again, I'm sure most of you would do the same in the same situation.

I wasn't expecting people to respond 'oh I'm so sorry hunny etc etc' but there's a vast difference between that and the nature and tone of responses I have received. As part of my research I have reviewed a lot of mumsnet posts and many have been very informative and polite even if they did provide bad news. But for some reason my post has not received the same reception. Don't get me wrong I appreciate the expert input, honestly I do, I'm just disappointed at the way in which it has been delivered.

how/when have the admission authority already made this judgment

When you apply they will consider your application and decide whether or not to treat your daughter as excepted. If they decide she is excepted she will be admitted. If, as I expect, they decide she is not excepted they will arrange your appeal. So by the time you arrive at the appeal hearing the admission authority will have decided that the distance to the nearest school with places is not unreasonable and therefore your daughter is not excepted.

Contrary to what the LA has said they must consider whether or not a child is excepted whenever someone applies for a place at a school that is already full and admitting the child would breach infant class size limits. In almost all cases they will decide that the child is not excepted and will refuse admission. In a very small number of cases they will decide that the child is accepted and will offer a place.

It is absolutely not the case that only the appeal panel considers whether or not a child is excepted. The admission authority must make that decision. All the appeal panel does is consider whether the authority's decision is reasonable.

Having said that, if you can get the LA to put in writing that they do not consider whether or not a child is excepted that is something you should use at your appeal. It shows that they are not operating in accord with the Admissions Code. I still don't think you would win your appeal but it would give you a slightly better chance. I doubt that the appeal panel will be too happy with an authority that does not even think about whether or not children are excepted.

You are getting help and advice. I'm sorry it isn't what you want to hear. I wish I could tell you that you have a case but I have always been honest with posters on Mumsnet about the strength of their case.

When has anyone not been polite?
You decided everyone was harsh when they told you you didn't have a case. That was just plain speaking.

People have even told you to go ahead and try to appeal; because the appeals panel could make a freaky decision.

At no point have you come up with information which would significantly affect the advice. Although the only one I can think of is if you could come up with a medical reason why your DD needs to walk to school.
The only other factor to consider is: for the school's you prefer does ICS apply in every case? Is there anyway you can argue that class sizes are not always 30?
That would lead to a much more likely winnable appeal.

OP you called the first few comments "blunt". I've re-read them and all I can see in them is understanding that it's stressful but clear facts about your position.

I think your emotional state is causing you to perceive unkindness where there really isn't any.

If that's directed at me re comments not being informative and polite, I agree that my first couple of posts were a bit blunt, which I apologised for in my third post. You put my back up initially with your comment about people from further away towns having a space, which I felt was implicitly critical of such people, who, like you, are just trying to do the best for their kids.

I've also expressed sympathy a couple of times as to the changed local position; so have others. you seemed to want information more than a support thread; apologies if I misjudged that.

Though it doesn't feel like it, you are in a better position than many who move as you have six schools you would be happy with plus you can still access your current school. Therefore you have a good chance of getting through without home ed until a suitable place comes up; it is worth looking into local mobility ie how many kids move away each year from each school, typically.

...to give you some idea of how long you might be on waiting lists.

OP you're not getting the rough ride you think you are. You're getting brilliant and sound advice.

I used to work in this field. I dealt with hundreds of in year applications each year. Literally hundreds. And they all felt exactly like you do. And I'm really sorry, but your grounds are not grounds. To say anything else would be giving you false hope.

I hope a space opens up for your daughter soon.