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

Hi I was in a similar situation to you s few years ago. I found admissions to be s nightmare however rang the headteacher of the local school who was fantastic. He showed us round and said he would do everything he could to help us get s place. Admissions were saying there were no spaces but headteacher rang us and let us know there was, we emailed requesting hat place and they did reply within 15 working days which they are required to do (we didn't know this, the headteacher told us) and so we got place on a technicality. We are in Wales so not sure if this the same elsewhere. So my advice is speak to the headteacher. Good luck x x

Sorry should say they didn't reply in 15 days

Prh that last post was helpful thank you.

Few things spring to mind though:

If the admissions have to consider if any children in applications are excepted children or not before responding, then do you know why they may have asked me to submit appeals at the same time as applying as 'we know the answer will be no since there aren't any spaces at the schools'. At that time too when I had this conversation, they did not know anything about the circumstances - for all they knew our daughter was in LAC or witness protection or anything, yet they were advising I would get a no and to submit appeals. Could this be procedurally incorrect?

Wpild I need the above in writing from them that it was not their responsibility to consider whether she was an excepted child? Even though my appeals are already submitted, when they eventually come back to me with the 'no' for each school they said I would get, if this refers to excepted children but our child isn't considered one would this be sufficient to discharge their duty? Likewise if they don't mention excepted children in their no letter, just the fact they are all full at 30 children, could this suggest they haven't even considered it?

Having re-read, I think your problem is that you don't have an address in the area yet. So the LA currently has no obligation to you.

You have applied for 3 schools, and told they are full. If they had a place, they would have to give it to you regardless of where you live, but you would then have to negotiate to hold it over until Sept; most LEAs would want you taking it up within 2 weeks.

If either of the schools at 1.6 or 3.7km actually have a space, it has to be offered to you now, and you would need to negotiate a delayed start (or commute to the new school for the next few weeks). If you turned that offer down, the LEA would have no obligation to find you another place.

However,if there are no spaces; but given your child doesn't live in the relevant LEA yet, currently they have no obligation to you. Once you have an address in it's area, it will need to decide whether to treat your child as an excepted child, or invoke FAP; but as yet it doesn't have to.

You are of course entitled to apply for a school place whenever you like from wherever you like, but if a place doesn't exist, the LA doesn't have to start invoking any special measures until the child's permanent address is in it's authority (although some will accept concrete evidence of a move in advance if you have it - do you? the fact you are reconsidering the move suggests not?)

So that is the issue now. Until the child lives in this LA, it has no obligation to find you a place. No Appeals panel is going to give you a place under ICS rules when you don't even live in the area and the LA haven't yet had the requirement to invoke FAP or deal with her as a potentially excepted child as you don't have an address in their area.

I'm sorry you feel we're not being sufficiently gentle. I think that, generally, if a poster comes along and says 'I'm going to appeal on these grounds' and several posters say 'oh that's not going to work...' Then the OP says 'oh no! What can I do?' the thread tends to feel very supportive even though the trend is towards 'you can't possibly win this'.

However, if a poster says 'I'm going to appeal on these grounds', we all say 'that won't work....' and the poster says 'but you clearly don't realise how special/amazing/unusual/ my circumstances are and nobody has ever been in this situation before so I'll win, then we all say 'but we see hundreds of appeals with exactly those grounds and they lose -every single one. It can't possibly win!' and the poster says 'Aha!!!!! But my LA is being unreasonable.' and so on.... it seems that we're being very unkind, but we're actually trying to stop someone from spending a lot of time in crafting a case that is built on a foundation of sand that will get washed away by the very first wave of questioning at appeal.

We don't want your appeal to fail. But it will. It is 99.9999% guaranteed to fail. The 0.0001% is there in case you have a panel who are willing to break the law, a clerk who is willing to stand by and let it happen, and a LA that are unwilling to appeal a clearly illegal ruling by an appeal panel.

Prh is the expert, but my understanding is that a procedural error that doesn't end up changing the outcome won't get you a place. So if the LA says the distance to your house was 720m and actually it was 690m but the closest admitted was 650m, you won't win an appeal, though you may move up the waiting list, I guess.

On a separate point, the LA suggested that in good faith to shorten your wait for appeal...

Mummytime, in relation to your comment:

"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."

Sorry I'm not sure what you mean by this. In previous years at all of the schools there have been years when they have far less than 30, they certainly do not have 30 each year. I know there's space in the year above. In my neohew's year at one of the schools they had to mix with another year as there were only 18 in his class.

Shiraznowplease I have been in contact with the head at all schools. One in particular has been very helpful and gave me advice which I mentioned in my original post unfortunately admissions were giving conflicting advice about which doesn't help. Because there's 2 others which have enquired about the place which they expect to come up any time between now and September, the head can't call anyone to let them know of a space as it could be seen as favouring one over the other two - ie which number does he call first! So it's a case of whoever calls the soonest after that child giving notice of leaving, they will get the place. He said to call every week or every day if I wanted! He was very helpful as he would love to take more kids on but his hands were tied. None of the schools operate waiting lists unfortunately and the head of my preferred one (with family ties) won't even show me round (even though I know parts of the school) since there are no spaces.

If I may answer the point regarding excepted children, it isn't as distinct as it sounds in this thread. All it means is that the admissions officer would get the application and follow a decision tree:

1. Is there a space at x school in x year? Yes - award place. No: step 2.
2. Can the child be considered an excepted child?

a) does the child have a statement/ EHCP naming the school? Yes - award place. No: 2B b) is the child a LAC/ formerly LAC? Yes - award place. No: 2c. c)....

If they get to the bottom of the excepted child list without answering yes, the child is not excepted and therefore can't be awarded a place.

But the letter you would get would not state that it had been considered. You would get a letter stating that the class is full and that ICS regulations prohibit a class size larger than 30.

"Because there's 2 others which have enquired about the place which they expect to come up any time between now and September, the head can't call anyone to let them know of a space as it could be seen as favouring one over the other two - ie which number does he call first! So it's a case of whoever calls the soonest after that child giving notice of leaving, they will get the place. He said to call every week or every day if I wanted! "

Is the LA the admitting authority? You should get on the waiting list with the LA. If you were to find out that a child was awarded a place who had lower priority than your child, that would be grounds for successful appeal even if the class size would go above 30.

PatriciaHolm we have never been asked anything about our address but I mentioned it to admissions and they said we should put our new address in the applications in the notes section. So We do actually have an address in the new area we just don't physically live there yet. Also, re dates, they said that our application for a place couldn't be effective until at least the first day back in September as it must be at least a term in advance. So we put the date required as first day back in September and they said we can then liaise with a school directly so she would have to start sometime between beginning of September and the day they break up for October half term. If we were wanting the place from after half term we would have to wait until schools go back in September.

Lougle please excuse my ignorance on this but I have been in contact with the admissions department within the district's council. Is that different to the LA? How would I know if the LA are the admitting authority? Both the schools and the admissions have advised me there are no waiting lists...

I wonder if those two have moved to the area in this school year or have been enquiring since the start of reception.

To complicate the situation Lougle has outlined even further ;-)...

Admissions Authorities do still have the right to refuse to admit an excepted pupil. The Admission Code does not say they have to admit a child in one of the excepted circumstances, just that they can.

However, if they choose to do refuse to do so despite acknowledging that the child falls into the excepted camp, the letter refusing admission needs to say that. Rather than just saying "admission is refused due to ICS" it would need to say that the child did fall into one of the excepted categories, but admission was refused due to prejudice to the school".

However, as I said above, the issue at present is that the child doesn't have an address in the local area, so the LA has no obligation to find a place yet. When the child does move, then the whole FAP/excepted child stuff may come into play (or may not, if one of the 2 suggested schools has a place by then) but it doesn't now.

"PatriciaHolm we have never been asked anything about our address but I mentioned it to admissions and they said we should put our new address in the applications in the notes section. So We do actually have an address in the new area we just don't physically live there yet."

That is very odd. Are you moving within the same LEA? (if you aren't sure, PM me and I will take a look at it for you.) Normally the first thing Admissions need is some evidence of address if you are moving into the area.

As I said above, if the schools have a space, they have to give it to you wherever you live.

What kind of evidence do you have of the new address? At present, I suspect they aren't taking your new address into consideration because you don't live there, so they don't have any obligation to find you a space.

"Also, re dates, they said that our application for a place couldn't be effective until at least the first day back in September as it must be at least a term in advance. "

They are not allowed to say that. You are entitled to apply for a space at any time, and they have to deal with it in a timely manner. They are not allowed to state that you have to apply a term in advance. LAs often try this for in-year transfers within the same LA, but again, they are not allowed to insist.

If you applying through LA won't they be keeping waiting lists? If others are also after places until there is a successful appeal , a vacancy would be allocated to whoever meets the admissions criteria in highest order of priority. Until you have moved , for example, anyone applying from a closer address to your present one is likely to be offered the place ahead of your dc. It won't be first come, first served.

I don't know their situation to be honest as obviously the head couldn't confirm, or even remember!

So they only need to mention the excepted child issue in their letter if they did consider it, decided she was one but nevertheless refused to allow her a space due to prejudice to the school? So basically i can't see any way of proving or disproving that they have correctly followed procedure re considering if she's an excepted child before refusing/confirming she hasn't got a space. Is this right?

Have they told you there is a vacant place at the village school (the one you dislike) 1.7 miles away?

Sorry, this is getting a bit confusing. Can I clarify a couple of points?

You say you have an address. Does that mean you have identified the house you will be moving to but haven't yet bought it? Or will you be renting it? What stage in the buying/renting process are you at?

Are you currently at a commuting distance from that location? If you were offered a school place tomorrow, could you take it up, or is it too far right now?

Surely even if it is accepted that more than 2 miles is an 'unreasonable distance', there is a school place well within that?

Of course - the situation is a little complicated, but basically we have just sold our house here in the last week which is all going through and is with solicitors now. We were waiting to sell ours first before we put any offers in on houses in the new area, however now we're in the right position, there are absolutely no suitable houses in the new area so we are still actively looking, but it's only a relatively small area and we would not consider a different area or further afield. The market in this area moves very fast and houses sell before they're properly on the market. Thankfully, my in laws who live in the exact same area as where we are moving have offered to move out of their house temporarily and they will move in with my father in law's mum who lives just round the corner whilst we find somewhere and it all goes through to completion. So this is the address we have put as our 'local' address in the new area. As such, we don't have any 'evidence' of this per se, only of our sale which doesn't help. I can get something in writing from my in laws but not sure that would help.

If we were offered a place tomorrow then yes we would commute with her if this enabled us to get her in.

The little village school out in the sticks - I am still waiting for them to get back to me to confirm whether they have a space or not. Admissions at the council said they may do but I should check directly, however they're so understaffed (receptionist only works a few hours a week and no one answers the phone when she's not there) so I'm reliant upon the head being able to call me back when not teaching.

Is the LA the same as the admissions at the district council? That's who I've been speaking to as well as the schools directly and who I mean when I refer to admissions. They've said they don't have any waiting lists.

Fairuza that's the issue, if this little school out on country roads etc has a space it is 1.7m away but it's the road conditions/seclusion that concern me to say it's almost worse than being 2m away due to how you get there. If there is not a place there (waiting to find out) then admissions have informed me there's not a space in any of the schools (which I knew anyway - there's 6 in the immediate and surrounding area) and the next closest is 3.7m away.

1.6 miles is never going to be an unreasonable distance though, even if the roads aren't great. I can't really see how 3.7 miles is an unreasonable distance either, seeing as the LA would provide transport.

Are you moving within the same council? (and yes, the admissions at the local council are essentially what we mean by LA/LEA! Some schools (Academies) are their own admissions authority though, so you would need to deal with them directly normally, unless they have asked the LEA to deal with their waiting lists - which doesn't seem to apply here).

If the school 1.7 miles away has a space, then that is what you will get offered. It's up to you to then appeal other places, but it would be straight ICS assuming 30 per class; there would be no argument about reasonable distance.

Right. Now I understand.

As it stands, then, you don't have an address in the new LA that you are living at, so you are applying from your current home address. It makes no difference except that if there were two children vying for the same school place, your child is likely to be further down the list because of the distance.

Could you full in an application form for the little school and get your in-laws to drop it in and get a receipt for it? Once it's date stamped, you'd have proof of your application. Then if you found out that a child was offered a place after your application was received, you could challenge it on the basis that you applied first and were not informed of a place (if it turns out a place was available but not allocated, of course!).

That's right - different council/LA.

I see what you're saying about the little school but this is part of the issue - it's such a small school (48 kids across 7 year groups), out in the sticks etc etc that we would not want her to go to this school as much as we don't want her going to the one 3.7m away. Also, my cousin sent her 3 girls here and she really regrets it as the girls all hated it - also had concerns about the teaching given the huge range of ages/ abilities etc they had to cover in each class. My daughter is a big character and I think she would find it very constraining in a school so small. Not that it has any weight attached to it but it would also be completely impractical for getting her there and back and no prospect of wraparound care like the others. So I'm kind of hoping they don't have a place as then at least the closest one is 3.7m away which is better for my appeal. I know you all say I don't have a chance of winning but honestly we can't even contemplate sending her to either of these schools for various reasons so I'm not losing out in any way by saying that.

OK; so you are moving LA, but you don't have a confirmed address in the new LA (confirmed meaning rental contract or exchange of contracts).

So the new LA has processed your application, as it should do, but at the moment has no obligation to find you a place.

If the school at 1.7m has a place, it should be given to you.

If it doesn't, and the other schools you have appealed for don't either, then you can appeal.

But the excepted circumstances do not apply to you at present because you have no provable address in the area. Your child does not live there, so they do not, now, have to deal with her as a excepted child moving into the area. So any appeal based on that, whilst you don't live there, will fail.