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!!

I think that’s the best way to approach it. Put the focus on your child’s well-being and how it will be at risk if they have to change schools. I understand that it must be painful to have to rehearse all the trauma of the last couple of years, but you need to explain to the panel that this is something beyond the “child who wants to stay with friends from nursery” argument that they will have heard many times before (and usually doesn’t meet the very high threshold for an ICS appeal).

Ironically the reason I chose to change their nursery place was because locally the vast majority of schools have nurseries and the vast majorities of those that go to nursery then stay at that school (in his classes case 27/30). The whole idea was that with him starting nursery with the rest of the class, with them all settling in together he would find it easier than starting as he may have to now do as a new pupil when all the other children know each other.
Additionally when we moved him he had some emotional issues after some significant parental ill health had meant he’d spent a lot of time without us, but then sadly during this school year he has witnessed a house fire at home, has to then live in a hotel for a month and then lost a baby sister. Understandably his health needs are now significantly worse that at entry into nursery

Thanks so much.
It is so much more than friends / not wanting to move.
Ironically we have been allocated a massively oversubscribed ofsted rated outstanding school that half of our area would have given their left arm to attend. Had he not had such a horrendous time of it I would move him without question, but what he has dealt with over the last 2yrs is more than any child should and sadly it’s taken it’s toll. We are just desperate to try and prevent any further upset.
Thank you again for your advice I appreciate it.

It’s unusual for an EP to work for the NHS. Who make the referral/organised the appointments?

I can see how stressful this is and logically your reasons make sense, but that's irrelevant to pursuing a claim that they didn't apply the criteria effectively, and that's not worth pursuing as you won't get anywhere. The best thing is to try and get the ECHP in place, get on the waitlist for that school and liaise with the professionals to see if they can either help support with the stuff for this school, or to give advice on how to prepare him for the move to a different school. Unfortunately attending a nursery doesn't have weighting, and not sure who advised you it did if anyone but its not true.

In answer to the point about NHS/private: advice from NHS professionals is often given higher weighting, as there is a more consistent standard. A private professional is an unknown entity and can be more likely to take into account parental wishes when writing the report.

Where I work, there are LA funded EPs and it's their advice that usually swings EHCP applications, so would hold some weight at appeal. With the caveat that the bar us high fir ICS.

We were actually referred to them by the school

I can't help with the appeal side of it, but want to suggest that you might minimise disruption to your child by keeping them at their current nursery while you wait to see what will happen with the school place. You can accept the place at the offered school and then defer your child's start until the term after their fifth birthday, or the summer term, whichever is earlier. Then continue at nursery for the time being.

If your appeal is unsuccessful, doing the above would buy a bit of time while you hope to get an EHCP finalised or get a place from the waiting list. Even at fourth on the waiting list, you may get into the preferred school that way.

I would kindly suggest that you start making arrangements now for your ds to settle into his new school in September just in case you don’t win your appeal. The appeals process can be very protracted, especially one as complex as yours, and you may not get a final result until towards the end of term. Then it would give him very little time to get used to the idea of going to a new school.

Start by arranging some play dates with the children who will be going to the same school. Arrange some visits to the new school to meet any key staff, get used to the environment and maybe get him a book bag and a school jumper (I know if he ends up not going this will be a waste of money, but you did imply money was no object). Meet the Senco of the new school so they can be prepared with the handover.

If you’re going for an EHCP, start the process asap and get his current nursery Senco to send in the relevant paperwork. In reality, I doubt very much that he will receive an EHCP before September, and even if he does, it won’t guarantee a place at whichever school you want. The LA have to consult with schools to determine if they are able to meet a child’s needs as written on an EHCP. The outcomes and support required as written will be geared towards his emotional needs, they will not name a specific school in terms of what support has to be in place, rather will identify what support is required in order to meet his needs. Once this is done, then they consult with schools in the LA to see if any can meet his needs, and if they have places available. It’s at that point that a school will be named on the EHCP.

If your child is enrolled in the school he’s been allocated and starts in September, then once his EHCP is completed, any move to a different school will be classed as an in-year admission. This will actually make it more difficult for him to get a place in a school that’s already full, as they will argue that by going over PAN, it is detrimental to the education of the children already on roll.

I’m not sure that it’s possible for a child to stay in a school nursery in this way. I’ve certainly never come across it.

they consult with schools in the LA to see if any can meet his needs, and if they have places available.

Schools consulted, and subsequently named in EHCPs, does not have to be within the LA.

With an EHCP there are limited reasons the LA can refuse to name the parents preferred school. As long as it is not wholly independent the LA must name it unless they can prove:

• The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or
• The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
• The attendance of the child or young person would be incompatible with the efficient use of resources.

The bar is very high, much high than many think. It is more than proving an “adverse effect”, “impact on” or “prejudicial to”. If the LA can not prove one of the above they must name the school even if the school object. Full/no places on its own is not enough of a reason to refuse and ‘full’ is not defined in law, the LA have to prove the school is so full it is incompatible. If the LA refuse because there are 30 in the class, they don’t want to go over PAN and there are no places if the parents appeal to SENDIST it is likely the appeal will be upheld. It is unlikely the LA can meet SENDIST’s high bar for incompatibility for a 31st child.

Pupils with EHCPs placed after the normal admissions round are excepted children.

Absolutely this.
our LA have explained that if an ECHP is granted naming his current school then he will be admitted regardless of pupil number as is an excepted pupil

Just an update
Thank you all so much for all of your comments, many were really helpful. We found out today that we won our infant class size appeal. So unbelievably happy.

Fantastic! Well done.

Well done! That's really good news.

Wonderful news :)

oh I'm very pleased for you! (and him!)