Appeal hearing - please help

[lucyb162]

I have submitted an appeal application for our catchment school, after being allocated a school much further away. The catchment school was very oversubscribed in this year and 16 children in catchment did not get in. My appeal is based on 2 things - (1) that the school's admission criteria are not lawful and (2) that the distance criteria have not been correctly applied with regard to an apartment complex.

I'm comfortable explaining my first argument, so I won't go into that here, but I am having some trouble with my second argument. The crux of my argument is that: the school calculates distance as the crow flies using postal address information. Within the catchment area is an apartment complex consisting of 9 'blocks' located around a central square, therefore some of the blocks are further away from the school than others. However, using the postal address system, all of the apartment blocks in the complex appear at 1 point on a map, which is a point closer to the school than the majority of the physical apartment buildings. The furthest 3rd of the blocks are further away from the school as the crow flies than my house. The issue we have however is that I've been unable to find out how many children from these apartment blocks have been allocated a place this time (although I've been given numbers 'on the grapevine'. I've been told I can't request this information under a freedom of information request as it contravenes data protection rights. My appeal case, including this argument, was submitted 22nd May and yesterday I received the case for the school, which contains no reference to anything to do with either the distance calculation for the apartment blocks or the number of children admitted within them. I'm now at a loss as to how I will actually argue my point when I'm unable to prove or disprove whether my daughter would have got a place had the school applied the correct distance calculation.

Can anybody help??

Just out of interest, which criteria do you believe is unlawful - LAC or sibling?

mrss1980 sibling

The oversubscription criteria look fairly standard to me. The only possible challenge I can see is around the catchment area. That appears to be an area bounded by Manchester Road, Timperley Brook, Sinderland Brook and the canal along with an area east of the canal which is shared with Willows. The school is pretty much on the northern edge of that area. If the area to the north of Sinderland Brook is more deprived than the catchment area there would be an argument that they have artificially excluded it. They state their catchment zone as a list of roads so they would clearly have got it wrong if they managed to exclude a road within the area but I haven't managed to identify any issues. Overall, their core catchment zone has clear natural boundaries and the bit shared with Willows also makes sense so I'm not convinced there are any grounds for a challenge to the catchment area.

You may, of course, have noticed something I have missed. If you want to PM me the details of what you think is wrong with the admission arrangements I will be happy to give you an opinion.

However, it currently has 2 full time head teachers, so efcould it be argued that one of those head teachers could be used to negate the infant class size legislation issue

No. Even if they have enough rooms available, the appeal panel cannot dictate how the school deploys its staff or organises its classes.

I have to say that it is not clear if your argument regarding the measurements for Romana Square is true. I would be very surprised if they are using the postcode. They should be something more accurate than that. However, I would agree that it is a problem if they are using a single seed point for all 9 blocks.

Regarding short term renting, the appeal panel will take the view that any evidence should be supplied to the LA or admission authority so that they can investigate and that the appeal panel should only step in if the authorities have failed to act. As admission says, it is not up to the panel to investigate individual cases. Your best argument here is that the school, unlike many others in Trafford, does not require parents to submit any proof of address and therefore is not taking reasonable actions to detect fraudulent or deliberately misleading applications.

prh47bridge there is no issue with the actual catchment area, other than that the school is, on an increasing basis, not serving it. The school prioritise siblings out of catchment over catchment children with no siblings, which is the reverse of the rest of the schools in Trafford. There are various cases and statements from the office of the schools Adjudicator which support trafford's position over the school's.

With regard to the apartments, I don't know what they're doing, only what I've found, so I will have to ask the question. I do know that a fairly large volume of children from these apartments get in each year and that the number of in catchment children not getting a place has steadily increased in the past 3 years (16 for September 17 as it currently stands), but that children from these apartments are still getting in and that my house is more or less exactly the same distance from the school as the further most blocks.

Do you have any advice as to what makes good arguments in the 2nd stage of the appeal process?

Thanks

Whilst the Schools Adjudicator has criticised giving priority to out of catchment siblings in this way it is not illegal. If this was referred to the Adjudicator they would consider if the policy strikes a fair balance in the circumstances of this particular school. I would be surprised if you can persuade an appeal panel on this point.

For the second stage of the appeal you need to look at things this school offers that are not available at the allocated school and that are particularly relevant to your child. If, for example, your child is musically gifted and Park Road has lots of extra-curricular musical activities that is worth bringing up. That is the kind of thing the appeal panel is looking for at stage 2. You need to make the best possible case that this is the right school for your child. Note that the arguments need to be about what is best for your child, not what is easiest for you, so arguments about child care and transport difficulties are unlikely to help.

You need to be a bit careful with the catchment siblings argument - this recent decision from the OSA says that Nottingham was wrong to remove the preference for siblings out of catchment -

https://www.gov.uk/government/uploads/system/uploads/attachmentdata/file/587824/ADA3202ADA3245ADA32466andADA32488HighOakhammPrimarySchoollNotts311Jan2017.pdf

It is essentially a locally determined argument; the judgement does go into depth about how local places were allocated. It is not as simple as saying that priority for out of catchment siblings is unreasonable.

Are you absolutely sure they use postcodes for these flats? It would be surprising if they do, rather than more discrete GIS points.

patriciaholm no, I'm not certain, all I have to go off is what I've put in various messages above, that it seems from who is getting in and who isn't to the school, that they're using the postcode points for the apartments, but I don't know this for certain and I've run out of time to obtain this information before my appeal, unless Trafford responded very quickly, which is unlikely given how long it has taken for replies to previous information requests.

prh47bridge my argument is not so much that the sibling rule in general is unlawful, more that by going against the criteria for the rest of trafford, Park Road have effectively created a 'bubble' in their catchment area whereby children with no older sibling are struggling to get in but have no priority in any other school. I have several adjudicatoe case examples where this is backed up by Adjudicator decisions and a statement by the Adjudicator supporting trafford's policy decision when it was made

I am afraid that the argument around siblings will not have any effect on the panel, as the school is an academy and can set any admission criteria it wants providing it is legal, which it is.
I am not sure whether the two head teachers are full time or whether it is a split position so many days a week. However it really does not matter as the school can organise itself in any way it wishes. There is also another teacher employed to carry out PPA and that also will not have any issues for the panel.
You need to attack the situation regarding the flats in part 1 on an assumption that your are correct, though I cannot believe for a school that is outstanding and over-subscribed it has not come up before. Throwing in whether there is short term "letters" is another possible direction to take but the panel will not take that into consideration in their decision because it will be for the school as the admission authority (and the LA) to investigate if this is happening. It might just help to suggest to the panel that the admission authority which is the school is not paying enough attention to what is happening with the flats. I would also ask the school, as they are the admission authority, when they held their meeting to approve the list in admission criteria order. They had to do this, probably in January and if you can show that they did not really consider properly the list generated by the LA, it again just questions the way the allocations have been made. It also fits into the question of how did they carry out the random allocation of places if the distance to all pupils living in the flats is the same.
You need to understand that the school with an intake of 30 is going to be an infant class size case, so everything rests on you showing that there is an issue with the flats over the distance criteria. You can show what a wonderful school it is in part 2 and how much it will benefit your child but as an infant class size regs case it will not matter.

admission why is that the case when admission criteria have to not disadvantage any group of people and in this instance children with no older sibling are being disadvantaged as those with sublingsbhave priority both within Park Road and for the school that they are in catchment for, whereas children with no older sibling have priority in no school:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/552420/ADA3180_3181_Lowbrook_Academy_RBMW_2_September_2016.pdf

The requirement in the Admissions Code is that the admission criteria must not unfairly disadvantage children with disabilities or SEN, or children from particular social or racial groups. There is no general requirement that they must not disadvantage any group of people. Such a requirement would be impossible - any admission criteria disadvantage some people simply by giving priority to others.

Any criteria that give priority to siblings inevitably disadvantages those who do not have an older sibling at the school. In this particular case the school is trying to help those who got an older child into school through distance then moved further away from the school. They are entitled to do that. The fact that other schools in the area do something different does not affect that. It might be possible to persuade the Schools Adjudicator that this is sufficiently unfair to justify forcing the school to change its admission criteria but your chances of persuading an appeal panel are, in my view, vanishingly small. And to be honest, any decision by the Adjudicator that prevents a school having this kind of criteria may be susceptible to judicial review.

prh47bridge I am somewhat confused as I have found a number of OSA cases supporting what I have said:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/555018/ADA3215_Stanbridge_Primary_School_South_Gloucestershire_22_September_2016.pdf
www.gov.uk/government/uploads/system/uploads/attachment_data/file/294982/ada2490_tithe_barn_primary_school_stockport_-22_november_2013.pdf
www.gov.uk/government/uploads/system/uploads/attachment_data/file/540608/ADA3210_St_Mary_s_CofE_Primary_School_Surrey_22_July_2016.pdf
www.gov.uk/government/uploads/system/uploads/attachment_data/file/299263/ada2493woodlea_primary_school_surrey_28aug13.pdf
www.gov.uk/government/uploads/system/uploads/attachment_data/file/303788/ada2346_and_2347_montpelier_primary_school_ealing-1_august_2012.pdf
www.gov.uk/government/uploads/system/uploads/attachment_data/file/552420/ADA3180_3181_Lowbrook_Academy_RBMW_2_September_2016.pdf
www.gov.uk/government/uploads/system/uploads/attachment_data/file/295125/ada2408_rush_common_primary_school_oxfordshire-21_june_2013.pdf
www.gov.uk/government/uploads/system/uploads/attachment_data/file/304814/ada2204_west_bridgeford_infant_school_nottinghamshire-_28_september_2011.pdf

Key paragraph in photo below

If my reading of that excerpt is correct, what it is saying is that the children in that case are doubly disadvantaged because they don't get in the first time because there are only 30 places, they are oversubscribed and they prioritise all siblings, so many places are taken up by out-catchment siblings; then later, because the first child didn't get in, when the next child needs to apply, they don't get a place because they don't have a sibling link.

lougle I'm reading it as the children with no sibling at the school are disadvantaged because they don't have priority at the catchment school, but neither do they have any priority at any surrounding non-catchment schools. This is in contrast to the siblings out of catchment who have priority in both their own catchment area and the non catchment school. This is exactly the same situation as we find ourselves in.

This is the full document, which gives the full background etc, if you can be bothered to read through it all (don't blame you if not!)

www.gov.uk/government/uploads/system/uploads/attachment_data/file/552420/ADA3180_3181_Lowbrook_Academy_RBMW_2_September_2016.pdf

Which is why our council abolished sibling preference for those in catchment so catchment is after Sen and looked after children and purely on distance. Siblings do get preference out of catchment but if you get first in then move you aren't guaranteed a place for second, plus those living next door a school aren't refused a place over a sibling out of catchment.

Admission and others, just a query about addresses being used by short term letters.

Is it acceptable, in an appeal, to raise an enquiry about what steps they take to determine whether short term letting to obtain admission is taking place? And can this be used as a reason to grant a place?

Whether this is happening seems amenable to investigation - for example by, in this case, comparing the % of children in the school who moved address between the point of application and the end of Reception who live in these flats vs the % for children whose admission address was elsewhere, for the last few years. However, that requires the school (which knows current family addresses) and the LA (who managed the admissions process and knows the address at that point) to compare the information that each holds and get it to the appelant.

If an admissions authority is seen not to have taken sufficient care over this, can this be used as a reason to admit a child who may have just missed out and might reasonably have been deprived of a place? Or does it have to be that a specific child who has obtained a place this year has to have been shown to have committed fraud and have their place removed before the next person on the waiting list gets a place?

Thank you lucy, I've read the full judgement and I see your argument now. It would explain why my local secondary has split their over subscription criteria into 5: in-catchment sibling; in-catchment; out-catchment sibling; out-catchment but attending feeder school; out-catchment distance.

Equally, there are a number of OSA judgements supporting the opposite - that it
Is reasonable to prioritise siblings out of catchment - see the decision I linked to earlier, and the below, for example.

https://www.gov.uk/government/uploads/system/uploads/attachmentdata/file/574993/ADA32399ParkLaneePrimaryanddNurserySchoollCambridgeshire55Dec16.docx

In reality, I suspect it is vey unlikely that a panel will be happy to make this sort of decision. The OSA only makes them after extensive investigation and having access to lots of data that the panel simply won't have. Most panels will consider that the fact that the criteria are legal is all they can decide on - and they are.

In terms of short term lets, it is a valid question to ask - how do the admission authorities ensure that addresses are not being employed fraudulently? Again in reality what you'll almost certainly be told is that the AA check using council tax registrations, and that they are confident in their checks. Unless you have concrete evidence otherwise this is going to be a hard argument to sustain.

cantkeepawayforever
My take on this would be that you would have to show that fraud has been committed and a place removed in order that somebody else was then admitted.
Having said that in my locality my LA is very aware of some homes / flats near to oversubscribed schools which seem to very regularly change hands just in time for school admission dates. These dwellings are red-flagged and as soon as somebody applies from them the LA will look very carefully at the circumstances. I know that in quite a few cases the parent has been told that they will not be allowed to apply from that address and must use another one which they own. Obviously if there is no second address the eventually the LA does have to accept the address for admission purposes.
I would be confident that in many LAs similar things happen, so that many issues are headed off before any places are allocated.

That's the thing, isn't it, PatriciaHolm? My question would be why this school? The problem arises in that specific case because only that one school prioritised siblings from anywhere. But it wasn't illegal to do so, and if all the schools had done so, it wouldn't have caused the problems it did, so why should that one school be held responsible for the fact that every other school decided not to? In that case, the adjudicator felt it should, but that's not to say in every case it's so.

patriciaholm the link you have most recently posted supports my viewpoint? I looked through hundreds of OSA cases and found none that went the opposite way from the cases I posted.

perhaps I won't be able to convince the panel of the same, but to me the evidence seems fairly compelling, but then I've never had the experience of being in a school appeal and have no idea of the current viewpoints of the panel or their familial situations which could impact on their take on it.

If anybody could help me put together a list of pertinent questions to ask if the admission authority at the hearing, Id be very grateful, you've already given me quite a few in the posts below already, which is great

Lucy,
You bring up an interesting school adjudication which I must admit I have not seen before. In the case of Lowbrook the issue was very much that with a PAN of 30 and the admission of siblings being a priority did disadvantage those with no siblings but in catchment, whereas with a PAN of 60, the SA was in effect saying they would come to a different conclusion because of the extra places. That then produces an interesting problem because you can therefore have an illegal or legal admission criteria depending on the number of pupils who havesiblings, which will vary from year to year.
This is very much moving away from the previous mantra that siblings should go to the same school and therefore be given priority. It almost begs the assumption that there will now be complaints to the SA where this has happened saying that the sibling is being disadvantaged. It also to some extent flies in the face of logic that as a parent you cannot be at different schools at the same time. So there will never be an admission criteria that will satisfy everybody.
Given the detail of the Lowbrook case, you might think that it would aid you but I would say it would not. At the time where the places were allocated the school had what they considered a perfectly valid admission criteria, in fact they still do. They have done exactly what they were expected to do. Only if the SA had set a judgement on your school would it be reasonable to say the panel did not get it right in the allocation of places. Until somebody with the legal authority (and that would be the SA or EFSA) made a judgement the admission criteria is legal. The judgement was Sept 2016, so would not have been available for a period of time after that. If you raise it at appeal, then it might be a perfectly reasonable belief that the school should now reconsider future admission criteria in the light of the Lowton judgement but as patriciaholmes says there are also a number of the judgements that do not go against sibling priority, so it is to me a consideration no more than that unless the SA wishes to come out and make a more definitive statement.

lougle surely the point is that the school has to consider the arrangements and how they affect the children who wish to go to their school and who should be eligible to do so, which includes taking into account the arrangements of the arrangements in the surrounding areas, so as not to 'accidentally' cause a disadvantage, which in my case appears to be the case. Park road, it should be noted, decided their sibling criteria in 2011 and have not deviated from it, despite an increasing issue of oversubscription year on year and despite Trafford changing their policy in 2013 because of oversubscription problems generally within the area. That feels to me like a lack of responsibility for their actions (or lack of) by the school.