Infant class size appeal

[Bluebird1981]

Could anyone give me any pointers on an infant class size appeal please?

Hello. Could you possibly post the below anonymously for me please?

My 4yr old has not got a place in reception at the school they currently attend nursery in. The school is massively oversubscribed, and despite living 0.2 of a mile away we are not close enough. We have been allocated our second choice school, which is an outstanding rated very popular school but we are devastated.
Our child has had a horrendously difficult last two years thanks to some tragic family events and significant parental ill health (death of sibling, near death of parent). They unsurprisingly have developed anxiety, struggle with change and are under a private CAMHS consultant. The school, our gp and the psychiatrist all agree that a change of setting would have significant effects on emotional and psychological well-being - to the extent that they have mentioned we may want to consider applying for an EHCP as a way of making sure they could stay at their current school (assuming it was granted and named their current school).
I am aware that infant class size appeals are extremely difficult to win, but where I think we may have a case is that the school / LEA broke the school admissions code. Essentially the school website and prospectus list medical conditions as a criteria used to decide places of oversubscription, meaning he highly likely would have got a place, but this criteria was removed from our local community schools in 2018, so both the prospectus and website are wrong, meaning health is not taken into consideration. Clearly this breaches the admissions code that says admission criteria must be clear and prospectuses up to date, and in honesty if I had known before applying for nursery there was any chance of not getting a place in reception I would have chosen to leave them in Private nursery for a further year as I was already aware by that point how much they struggle with change.
I have approached the LEA who have essentially said ‘sorry the info was wrong and confusing’ but offered nothing further. I have asked to speak to the director of education and if they dont help will lodge an appeal. Does anyone have any pearls of wisdom, know good education solicitors or have any personal experience?
If you’ve made it this far - we’ll done and thank you!!

@prh47bridge

Yes this was bad practice, but I'm not sure if it would count as a mistake that cost your DC a place. It might depend on the layout of the form. Were you able to apply for a place in an exceptional medical/social need category, and did you do so?

If there was no provision on the form to do so, they might conclude that the time you should have raised the issue before submitting, thus giving you more time to go down the EHCP route, rather than only finding out now.

Do you still have copy of prospectus and website with the wrong info (screen shots)?

Decisions you made about nursery places wont come in to it, but I can see how that must rankle

The 2021 Admissions code does require a community school to publish their admissions criteria on their website. However, this omission on it's own is unlikely, I think, to offer grounds under ICS, assuming the criteria themselves are lawful and the correct ones were applied in the admissions process.

When applying, was there any indication of a social/medical criteria? If one existed, you would have had to tick a box to apply under it, and attach the relevant proof. Presumably you didn't do this, so you knew from application that you were not applying under this criteria?

Whilst I appreciate your frustration, and the school are definitely at fault for not keeping documents up to date, I doubt there is a case here under ICS. Assuming the admissions criteria themselves are lawful, they don't seem to have been incorrectly applied, and no mistake seems to have been made that cost your son a place.

If you are close, I would assume you are high on the waiting list, so fingers crossed that you get a place that way soon.

Thanks so much for both of your replies.
You’re both right in that I realised when applying in January that the criteria on the application form was different to what was published on the school website and prospectus. By that point however my child had already been in the nursery at that setting for 4 months. I did anyway document on the application some medical info, but there wasn’t the option to submit specialist reports (which I have from Educational psychology, CAMHS and gp) all explaining why he should not be moved.
I didn’t overly worry that their info was incorrect and misleading as living 0.24 miles away we would have got in every previous year on location - so although I was annoyed I didn’t think we’d actually not get a place.
obviously now I’m in a position that I have had a child with additional needs, who no one feels it is in their interest to move settled in a nursery that I would not have put him in had the published admissions criteria been correct on the website or prospectus. Whilst I appreciate that having a nursery place doesn’t equal a reception it is beyond unreasonable that my son should have to suffer another move because of incorrect information.
I am going to throw everything at the appeal, we have legal representation and reports from numerous specialists but I’m also realistic that this may not help.
I do have screen shots of the published admission criteria on the school website and I also have their prospectus, which incidentally is still online and still incorrectly listing medical need as an oversubscription criteria.
in terms of waiting list I don’t think we have too much chance, we are only 4th on it.

My view is that it is worth a try on the basis that there were two sets of published admission criteria. I suspect it won't work, but you won't know unless you try.

The reality is that if there are issues about admission criteria then the general rule of thumb, certainly in the 4 LA that I do admission appeals in, is that what is detailed in the LA admission booklet and application form is taken as the "correct admission criteria". Given that you knew that on the "correct admission criteria" there was was no medical admission criteria I do not think you have a case at appeal, no matter how irritating the omission was.
The other fact you need to know is that if there was a medical criteria there are usually very few applications that are sufficiently compelling to agree to accept the application under that criteria. Whether your application would have matched the criteria is open to conjecture even if there was a medical criteria.
You also are making the point that your child should not move because of the upset that will be caused. However even if you had got a place at your first preference it would still have been a move from nursery provision to school provision. The case would be stronger if the nursery was an integral legal part of the school, so one thing you need to establish is whether the nursery is actually legally part of the school or just a private concern with a site on the school site.
Sorry I am being negative here but I think you need to understand that whilst I agree with PRH that you should appeal as you have nothing to loose, you actually have a low chance of success.
I have ignored anything to do with infant class size regs because if you did win your case your result would trump the regulations.

If you have support to make an EHCP needs request, then I would crack on and do that. They have to process the EHCP within 20 weeks, which means that the final EHCP would be issued by 12/09/22 (there is an exception to the timescale i the school is closed for more than 4 weeks, but that part of the school year would be past the information gathering stage so wouldn't affect you) and if successful, your child could start at the school at about the time they would have done anyway. You can apply for an EHC Needs Assessment yourself.

The difficulty is that there hasn't be a procedural error on the part of the admissions authority. There is a documentary error, which is unfortunate, but the issue the appeal panel considers is whether the admissions criteria have been impartially and correctly applied, which they have. It will weaken your case further that you say you had an idea that something was up when you saw the form. If you had contacted the LA and they had said 'yeah, just put the information down anyway and we'll sort it', or if the HT of the school had sasid 'oh yes with your DS's issues, you're bound to get a place!' then you could claim that you had a reasonable expectation of a place. However, you saw the issue and decided that on balance, you'd get in on distance.

Nothing at all useful to add but I am so sorry for your loss.

If it comes to it, a good transition plan with lots of visits and a chance to see and meet the teacher outside of the usual settling in sessions will be beneficial.

Thanks for your reply. Whilst I agree with your point my argument is that I would never have moved him from private nursery to the school nursery has I known the admissions criteria on the school website and in the prospectus was incorrect. So by the time I was applying for reception and realised the info may be incorrect it was too late and my child was already settled.
The nursery is an integrated part of the school. They attend assemblies with the infant school, they have lunch with the reception class, and crucially for my child the reception teacher also teaches several times a week in nursery to cover the nursery teachers admin time and to make sure that from day one children in nursery are well prepared for reception.
In terms of the medical criteria, whilst I appreciate it is conjecture our educational psychologist who has been involved in numerous similar cases has no doubt he would meet the threshold to need to stay.

Thanks for your reply.
we are certainly going to apply for the EHCP and have the support of his nursery teacher, his educational psychologist and his gp. The slight difficulty though is that part of the EHCP says is should be used when the school can’t meet his needs….well they can, but moving him will no longer need his needs.
in terms of procedural error our solicitor has said that as part of the admissions code the school website should be up to date and that the LA needs to ensure that the prospectus is published and correct. He has said that the fact that both were wrong would be an argument to say that there was procedural error (in applying the admissions code)…..wether or not this would be valid I do not know as I’m sure solicitors have a habit of telling you what you want to hear.
I did see the issue, but by that point it was too late, my child was settled and I knew that there was no way that my application would suddenly be assessed differently to others. It’s such a flipping nightmare situation

Thanks so much. I’m hoping it won’t end up being a loss but I am also realistic that our chances are slim.
I absolutely agree though and through gritted teeth will do everything to try and make his transition as smooth as possible. I have already started to introduce the idea that there is more than one school out there and so far it’s not going down so well. We have an appointment with his educational psychologist next week and will start working on the best ways we can support him if the worst happens and he has to move.

I agree with others here. There hasn’t (as I see it) been an error in the admissions process which has cost your child their place, which is what the panel will be looking for. The panel is likely to take the view that the out-of-date information about the (lack of) admissions category for social/medical need is regrettable but it didn’t cost your child a place. I don’t doubt that you would have chosen a different nursery if you had known that your child wouldn’t get a place at the school, but that argument doesn’t really provide what the panel will be looking for.

Your best hope, I think, is to reframe your argument, so that you focus not on the “error” argument but on the other possible argument in an ICS appeal - that the refusal was so unreasonable (in the legal sense) that it should not be allowed to stand. You could argue here that, because of their anxiety, it would not be reasonable to expect your child to go through the upheaval of moving to another school. You mention that you have supporting evidence for that. I don’t know what the panel will make of it; ICS appeals are hard to win and the panel here may take the view that very many children have had a very difficult time in the last two years and all schools will be able to provide support as they settle in.

Be careful in picking a lawyer. If you need a lawyer at all (which is debatable) you need a specialist in education law, not a specialist.

I’m so sorry for your loss.

Do you know what number you Are on the waiting list? I’m guessing pretty high up at 0.2 is nothing in distance. It might be you get a place of others don’t take up their offer.

Is the EP you are meeting with someone you have paid privately as well as the psychiatrist?

I think the bit where you state that you were already aware of their needs when you chose to change her nursery and send her to a school nursery doesn’t bode well for your appeal.

Hello
No the EP plus obviously our GP are nhs. Out of interest why? The reason we have a private CAMHS consultant is the over year long wait locally

You misunderstand me - I had no idea when I sent him to the nursery. The info has been out of date for 4 yrs! We didn’t need to submit any medical info at nursery application, as wherever he was going was a new setting and would have meant the same upheaval, plus his needs have worsened over the year. The criteria only became apparent when I tried to upload medical info for the reception place

Thank you
sadly only 4th and it’s a school that historically everyone takes their place at

Plus the fact that you said your child settled well into the school nursery by the time you completed the application - so that’s 12 weeks. No time at all.

You won't win on those grounds, I suspect your solicitor is rubbing their hands with glee though whilst they count the £££s. They aren't going to retract an offer from another child or increase numbers, but if you find out where he is on the wait list then if it's high chances are you'll get a place, lots do.

Thanks so much
I think you may be right, and I think I will try and reframe it that the incorrect information and the fact we then chose there for nursery based on that add to the unreasonableness of making such an emotionally vulnerable child move.
whilst I appreciate how hard the last few years have been on many our little boy has lost a sibling, very nearly lost a parent (and consequently had months of one parent in hospital), and in a separate event had to live. In a hotel for a month because of a house fire, which he witnessed. Unsurprisingly he has developed significant anxiety, has high attainment academically but is emotionally and communication wise well below his peers and hugely struggles with change (just one member of staff being off in his class room causes absolute meltdown). Where he is he has lunch with reception, has teaching several times a week from the reception teacher and is use to all of the communal areas of the school - something that really can’t be replicated moving him.
we have evidence from everyone we can think of, EP, GP, CAMHS and even his current teacher who all say a move will be very damaging to his emotional and psychological health and will likely severely impact his development

My point is, you changed your child’s nursery place knowing that they experience some difficulties in settling in as a result of some experiences they went through when very young. Were you advised to do that? If so, by whom? I would think that for a child like yours it would have been better if they’d stayed in their first nursery for as long as possible ie until starting Reception, to be better prepared for change.

is your child young enough for you to consider them deferring for a year? And if so, would they be allowed to remain in the school nursery for that time?

It was 19 weeks at time of application (mid Jan), and he had since the June before starting in the September been too settling in sessions, spent lots of time at the school and was very familiar. He wasn’t as settled as he is now, but yes he was settled to a point where I would never have chosen to move him

They certainly wouldn’t retract an offer (nor would I expect them to). They could however if they feel that procedural error has taken place or if the decision was perverse make him an excepted pupil and admit him.
Ive no doubt the solicitors are pretty happy at this time of year, but if they help in any way, even if it’s spotting a detail I didn’t then it’s money we’ll spent. I accept we could easily lose but fortunately but money isn’t an issue if I do have to cause him huge upheaval I would prefer to feel I’ve done everything in my power to try and avoid it

I don’t have anything to add but just wanted to say I’m so sorry for your loss and hope it all works out for your little one and all of you.

Apply for an EHCNA ASAP. The only legal test for an EHCNA is a) has or may have SEN, and b) may need SEN provision to be made via an EHCP. If DS’s are as you say you have more than enough evidence to meet the threshold.