In-year primary appeal

[ServiceChildMum]

We are currently posted overseas, moving back to the UK next month to our own home and my husband will be living at his base- we wanted to settle children. I have successfully got a space for my boys in my preferred school. My daughter (year 1) was refused because of the limits of resources and capacity of the school.

I am aware in the SAC and how, as a Service child, she can be an 'excepted pupil' at the Head's discretion. There is quite a hefty wait list. I have appealed, awaiting a date. Main arguments being sibling support whilst other parent is away etc. this will be her 4th move in 6 years, and the pastoral support which is mentioned in Ofsted/SIAMS reports. It's a voluntary aided school.

I would really appreciate any advice moving forward for the appeal, in terms of capacity, I believe there is a child who uses a walker, therefore this may come up in their counter argument.

I assume there are already 30 per class in her preferred school? In general where there are already 30, you can only win an infant class size appeal if there has been an admissions error - either wrong application of the rules, or the rules themselves break the law, or a totally unreasonable decision.

It isn’t a “balance of harms” argument like appeals for KS2+. You would technically need to show some sort of breach of the rules.

I note that under the admissions Code section 2.21, admissions authorities are required to ensure their arrangements for service children “support the Government’s commitment to removing disadvantage for service children” and they have to publish such arrangements in their composite prospectus.

Has your local authority set out its policy/arrangements for returning service children - can you see it anywhere in the school admissions section on their website? If not then that’s a potential breach, although possibly not good enough to win an appeal. If they have done, have they complied with this policy in your DD’s case?

I suspect your best argument is that not putting your DD in the same school as her brothers will “disadvantage her as a service child” in breach of the Code requirement I’ve quoted. Children who don’t move around will generally get a place in the same school as older siblings, the only reason she hasn’t got this is due to being a a service child, therefore to remove that disadvantage she should get to be with her siblings.

You could also make an argument about multiple moves, again this is a specific disadvantage that happens more for service kids, therefore the council has a duty to remove this disadvantage by putting her in the preferred school now rather than when she reaches the top of the list.

Ps I am NOT an expert - I am an appeal panel member but would need help from a clerk on this on. So I may be wrong.

@prh47bridge is an expert and hopefully will be along to add to / or correct what I have said.

I think this should be fairly straightforward.

Under the Admissions Code, children of UK service personnel admitted outside the normal admissions round are excepted. Any attempt by the school to argue that this is an infant class size appeal should therefore fail. It isn't because, even if there are already 30 pupils in the class, admitting your daughter will not push the class over the limit as she won't count towards that limit. It is up to the admission authority (the school or the LA depending on the type of school) to justify why they have not admitted your daughter as an excepted pupil. Given that, as @minipie says, paragraph 2.21 requires admission authorities to support the government's commitment to removing disadvantage for service children, I think they will struggle to do this.

As this is not an infant class size appeal, you don't have to show that a mistake has been made in order to win, although I think there is a reasonable argument that failing to admit your daughter as an excepted child is a breach of the Admissions Code (and that is an argument you should make). You can therefore also win on the balance of prejudice - by showing that the disadvantage to your daughter from not being admitted outweighs any issues the school will face from having an additional pupil. The arguments you've set out and that @minipie outlines will do for that.

Let us know what the school's case says. I think there is a decent chance they will try to argue this is an infant class size case. If you get a decent panel and clerk, it should be possible to deal with that.

Thank you @minipie and @prh47bridge these are really helpful comments.

As it's a voluntary aided school, Service children do not feature in the oversubscription criteria. There is a paragraph about Service families which says "In the case of UK service personnel and Crown servants, an official government letter (MOD, FCO or GCHQ) letter declaring a relocation date and new quartering unit address or private residential address to establish distance from xxxxx school". This is the only part on the school's admission policy, so it;s regarding address rather than arrangements for returning Service personnel as explained by @minipie . Could this be considered a potential breach?

I was expecting it to be an infant class size appeal, so I was surprised when it was resource and capacity based. Is this where I need to ask questions about whether they've gone over PAN before and the impact it has had? I think the other argument may be the child who has mobility issues, can they use that too?

Thank you both.

@prh47bridge is the expert, but in the several in year applications I did for my children (their Dad is Army) at no time did they say they weren't affected by ICS. Even when they were at Service schools abroad they had to follow ICS. What they could do was implement the Fair Access Protocol if there was no spaces available within a reasonable distance.

However we did have an Appeal board agree that my children should be in school together. That was goving my elder child a place at my younger child's school.

I wonder if they are bringing in resource and capacity arguments to deflect any potential argument from you that the refusal to admit was totally unreasonable ? (rather than for a “balance of harm” type exercise).

As the code says schools “may” admit over 30 in case of service children, rather than “must”, their decision clearly is discretionary not obligatory, but it has to be an objectively reasonable decision. If space/resources are limited, that helps show why the decision was reasonable.

However, even if it was reasonable, that doesn’t help them against arguments that they have breached the code eg by not removing disadvantage.

@minipie I wondered that too regarding the resource and capacity. Regarding your last point, have you got any examples of how they may have breached the code? Is it, for example, by not stating the arrangements for returning Service personnel?

i.e SAC 2.21 (d) ensure that arrangements in their area support the Government’s commitment to removing disadvantage for service children.
Arrangements must be appropriate for the area and be described in the local authority’s composite prospectus.

What does it mean 'for the area'? And if they are to be described in the local authority's composite prospectus- as it's voluntary aided, does this mean in their admissions policy?

"For the area" is not defined so it has the normal English meaning - arrangements must be appropriate for the area where the school is located.

The LA's composite prospectus must contain the oversubscription criteria for every school in the area, regardless of the type of school. This should match the admissions policy published on the school's website.

If they've made a resource and capacity argument, they are aware that it isn't an ICS case. That changes things a little. You can still put forward the argument that your daughter should have been admitted and that their failure to do so shows that they are not doing enough to remove the disadvantage for service children. You can also put forward arguments around things that your daughter won't be able to access if she doesn't attend this school. If you can identify things that are particularly relevant to her that she will miss out on, that helps to strengthen your case.

Thanks prh47bridge this is really useful for me too, as is all your advice on MN threads. Apologies if I’ve gone down the wrong path above.

Thank you @prh47bridge I didn't realise a composite prospectus existed, I've found it and the school's does match. I am surprised there is no mention of Service children because it is a county known for having a high number of Service children, although the specific area where we will be will not. Assume I can still put forward the argument that there isn't enough to remove the disadvantage of Service children.

Within my appeal letter, I explained why my daughter needs that school because of sibling (and linked it to Armed Forces Covenant as it talks about mitigating the challenges with transitions by having siblings together) but also the recognised quality of pastoral care at the school, nurture groups, a specifically trained TA etc, as well as the Headteacher having worked within the Service community previously. Do I need to add more information regarding the school itself in terms of extra curricular opportunities etc?

I will update you once I've received a reply with their argument. Thanks for your help.