Admission appeal, alleged LEA mistake - raise at stage 1 or 2?

[screwtape]

I have never posted anything before so I apologise if I don't phrase things quite right. I have an admissions appeal coming up in about a week and would very much like some advice if anyone can help. I really really think that the LEA has not followed its admission arrangements as they were published and I have been trying to talk to them to raise my concerns. After weeks and weeks of phone calls and emails from me the admissions team have taken legal advice and say that they have followed the admissions code. Obviously I don't agree.. however, my question is whether I have to raise this at stage 1 of my grouped appeal or stage 2, (which I understand is about my child?) I just don't want to miss the opportunity to say what I think has gone wrong, by raising it too late and the panel disallowing it.

You must raise this at Stage 1. If the Chair thinks that it is straying too far into your child's personal situation then they will say so and you can then bring it up instage 2. It is important that the Chair of the Panel makes that call rather than you.

If you do not bring it up at stage 1 and then bring it up at stage 2, there are two potential outcomes. The panel may disallow the situation but much more likely is that the panel will have to adjourn the hearing because they will have to inform all the appealants if they believe that it might have relevance to anybody elses appeal.

So for instance an appeal because the LA did not keep to the specified timetable would have potential relevance to all appealants and be in stage 1. A situation where the LA has not given you a priority that you should have had in the admission criteria would be more likely to be dealt with at your personal stage 2 time. Though again that might apply to more than one applicant.

Can you say what you believe the LA have failed to follow, as we might be able to advice you further?

My child's application for our preferred junior school failed because the LEA say it is not the nearest school to our home. They assess nearest school in terms of straight line distance, but also say in the composite prospectus (and on-line when you apply) that they don't count primary schools, or VA schools if they don't give priority to local children, as a nearest school. While I agree that the school designated as nearest is closest in terms of metres, in counting it they have not applied the exception they published. Even in the written statement of the local authority appeal papers these exceptions to the nearest school assessment are not mentioned.

I have put my concerns in my appeal statement - is it possible that the panel may have formed a view about whether this is relevant to other cases in advance of the day?

Hello,

Would the LEA be Surrey? I have had awful problems with them over junior admissions for September 2010 admission.

I agree with Admission that you should raise this at stage 1.

The panel will read your submission before the hearing but they should not make up their minds until they have heard all the evidence.

My immediate comment on the brief details you have given is that you need more information. Based on what you've said so far, you haven't shown that a mistake has been made.

I believe you are saying that the LA gives priority to applicants applying for the school nearest their home. They didn't give you that priority for the school you wanted because, in their view, it wasn't the school nearest your home. That left you without a place so they allocated your child to a school with places available.

Let's call your preferred school A and your allocated school B. It could be that there is a school C which, under the rules, is the nearest school to your home for the purposes of the admission criteria. The existence of that school C would stop you from getting priority for school A. Since you didn't get a place at school A, they then allocate you to school B as it has a place available. It happens to be the nearest school to you physically but that is purely coincidental.

I hope I've managed to make myself clear there. Not an easy concept to get across. However, you need to ask the LA which school they class as the nearest school to your home for the purposes of the admission criteria. If it turns out to be the allocated school but that is a primary or VA school which doesn't give priority to local children, that confirms that they have made a mistake mistake. However, if it turns out to be another junior school which is closer to your home than your preferred school the LA has got it right.

The school classed as the nearest school to my home is a VA school, which does not give priority to local children. This prevented our preferred school from being classed as our nearest.

To give you more information, we were originally allocated a third school outside the borough, which I accepted at the time. I was then lucky enough (later) to secure a place at the VA school because someone there declined the place they were offered and I had phoned the admissions officer to get onto the waiting list. Hardly anybody else phoned to get on the list so I was lucky.

The LEA now say that the nearest school assessment they made is OK because I had the opportunity to apply to that VA school and for that application to be successful.

Another detail is that the LEA published false/ incorrect admissions criteria for the VA school in the composite prospectus which made it look as though local children did have priority but I'm not in a position to know for sure if this affected my application.

This arguement is all about the wording of what is the nearest school and how they define priority to local children. Without seeing the LA admission criteri and the VA school criteria I could not really advise further

The LA's arguement that the nearest school assessment is OK because you had the opportunity to apply to the VA school is utter crock! You as a parent can apply to any school, but you might well be at the bottom of the admission criteria order! That does not make the assessment of the nearest school correct.

Please be warned that you might be right but if you are then this mistake does not apply just to you but everybody else in the area. The panel will have a hell of a job to try and work out what that means in terms of who should have got places. It may well come down to the panel having to adjourn( if they agree with you) whilst the LA goes back and runs all the calculations on places again. You might still not get in.

As for your comments about the admission criteria of the VA school, those that are published in the LA booklet are normally deemed to be the legal ones. They should be the same as that agreed by the Council based on the recommendation of the Admission Forum.

Thank you so much for your comments. I think you are right when you say that it is all about the wording. What I can say is that the LEA have written about the criteria very consistently in a number of different places across the composite prospectus and on-line, so I truly believe that I have not just mis-interpreted some unfortunate turn of phrase. Having said that, the LEA (without disputing the reasonableness of my interpretation of the wording) now explain that the actual assessment is not just based on the admissions criteria but also a consideration of the available space and the opportunity that exists to access that provision. In this context it is felt that I have the opportunity to apply etc etc...

On your other points, when I drew the LEA's attention to the published incorrect admission criteria for the VA school they investigated and concluded that they had been given the wrong information and that as long as the school had published the right criteria on-line and in the school prospectus that was OK, and that the limit of their duty is to ensure lawfulness.

You mention the possibility of running the calculations again, which sounds horrifying - surely they would just have to look only at cases like mine, where we failed in our application to this particular preferred school (call it X) because the VA school (Y) was counted as our nearest? It applies to me and my two friends close by who are also appealing, and another friend close by who has chosen not to appeal. What I'm saying, I suppose, is that it is geographically a very small local problem.

And, of course, this has all been so stressful that the idea of waiting even longer for an answer is horrendous... but I'm so glad to have received the advice you have all given because if the panel do agree with me (I know they might not!) and do have to adjourn it won't come as such a shock.

The wording in the LA's published criteria is what will matter. If the LA say one thing in their published criteria but actually do something different they have got it wrong.

I'm afraid Admission is right. If an error has been made the next question is whether or not your child would have got in if the LA had got it right. That means they have to rerun the calculations for all children, not just those who appealed, but doing it correctly this time. Of course, for many children it won't make any difference.

"The LEA now explain that the actual assessment is not just based on the admissions criteria but also a consideration of the available space and the opportunity that exists to access that provision. In this context it is felt that I have the opportunity to apply etc etc..."

This is complete rubbish and a typical example of the LA trying to cover their own backside by giving you a load of civil servant gobblygook. As for the VA school's admission criteria being different in different places, of course mistakes get made but I bet the School Adjudicator who has responsibility for issues relating to school admission criteria might disagree with the LAs view of what is correct.

But it is the detail that is critical here so
very definitely take it to appeal and see what a panel thinks.

"The LEA now explain that the actual assessment is not just based on the admissions criteria but also a consideration of the available space and the opportunity that exists to access that provision...."

So they are saying, in terms, that there are unpublished admissions criteria beyond what appears in the prospectus? As Admission says, that is certainly something which you need to flag up to the appeal panel in part 1.

But I also agree with Admission that if the LEA has based admission decisions on a mistake over what constitutes the nearest school, then it needs to look again at all applications and allocations, as this is quite likely to be replicated at other schools across the area. It may only make a difference in a few cases, but the LEA has to satisfy itself (and, perhaps, the LGO) that all decisions were soundly based.

Once again, thank you everyone for the advice you have given. I can't find the words to tell you how much it means to me. Although you have more than answered my original question I have two new worries and would appreciate even more advice..

1. Is it likely that the panel in my case, or the LEA, or even the ombudsman would direct the VA school to recalculate its allocations to be in line with what was published in the composite prospectus? Then I would agree that the VA school would be my nearest school. I don't think that places could be taken away from those children (I'd never ever want that to happen), but I take your point that other people I don't know about could be affected. My husband thinks I'm nuts but I would feel responsible if I was the cause of problems for this lovely local school and other stressed out parents like me.

1. If the panel agree with me (that the LEA have not followed their published rules, but instead assessed my nearest school differently) and if they also agree that my child and others would have got in to our preferred school if the LEA had got it right, and if they also consider that the school could admit them without prejudice would you then expect it to allocate in admission criteria order? (for example, distance). Or would you expect it to consider all our circumstances?

A bit more background information is that if my preferred school had been classed as my nearest at my distance my child would have got place 62 out of 68. My friends are all closer to the preferred school than me. My circumstances are not particularly special - but I have another child at the adjacent infant school (the sibling rule in place doesn't cover this) with another infant to apply for this autumn. I don't drive.

From what you have posted so far it isn't clear that the VA school has made a mistake. If the LA has published incorrect information about the VA school in their composite prospectus it is the LA that is at fault. I'm not sure the panel would decide that the VA school has made a mistake or, even if they have, that this is relevant. It is, however, possible they will have to recalculate their allocations. To set your mind at rest, they can't take away places that have been offered.

If the panel agree that the LA has made a mistake and that your child would have been admitted if they'd got it right they have to admit your child UNLESS a significant number of children are affected and the school can't cope with all of them. If that is the case the panel has to decide which appeals to uphold. It is up to the panel to determine how to make that decision.

Hi sorry to jump in on the message. I am a little concerned about the schools but take it that you are having real problems with entry.

I am not sure if you have done this but:

you should be able to get a copy of the schools admissions policy.

Ask the school for the schools admissions policy. In this policy will be a list of criteria for the school/LEA that are used to match the children up against when they apply for a place.

School or LEA should be able to give this to you for the particular school you are after. Generally in the order of:
Preference to Sibilings in the school.
Close proximity to school.
Faith if a church school.

Screwtape,
If there is a determination by the panel that in either situation the admission process was not administered correctly then the principle that should be followed is that nobody who has been offered a place will have that place removed. Regretably this has not happened in some instances (see other posts) but you must make the assumption that your admission authorities will be honourable about this.

The key issue will be whether having determined that the process was incorrect or that the admission criteria are inherently wrong that you can be proved to have been in line for a place if the correct process had been followed. In that situation you and any others appealing in the same situation should be offered a place at the school.

The problem is that this kind of mistake will need to have all the applicants for this school reconsidered in order that your claim that you would have been offered a place is substantiated. So there may be only two of you appealing on this basis but actually everybody who applied to the school will need to be re-assessed. That may give more or less the same result and you either would or would not have got a place. The nightmare scenario is if on re-assessing the situation a completely different set of pupils should have been offered a place.

An honourable LA should then be prepared to offer all those pupils a place at the school but the number of pupils that it entails is going to be a key deciding factor. With a admission number of 68 (funny number!) you already have 2 classes of 34, how many more would you be prepared to put in each class? 1 maybe, certainly i would be unhappy to go more than having 35 in a class. A difficult problem for the LA or the panel.

I would not be at all concerned by the issues this raises, that is for others to wrestle with, it is for you to show that you have been disadvantaged and should have been offered a place.

Dear admission and panelmember, i am here hopefully for the last time to seek further invaluable advice. i have spoken to prh47bridge already in relation to this matter and gained a wealth of knowledge and can't thank you all enough.
Well, finally my ics appeal is behind me and I am now awaiting the outcome. it wasn't as bad as expected, we had a very amenable panel who did all they could to put us at our ease. Firstly, we had the matter of the gate used for measurements. i got the definite inpression that they didn't take this argument all that seriously, and felt i was grasping at straws a little bit with this matter. However, the matter of the late application seemed to gain their interest a little bit more. Firstly, the LA didn't deny they had accepted a late application and processed it as on time, and amazingly, also admitted that they had accepted 3 more aswell. The details of the one i am aware of are that the parent was involved in a car accident in which she wrote off her car, was stressed out and subsequently forgot to hand in her application form until 6 days after the closing date. I am unaware of the circumstances surrounding the other 3. the LA defended their actions by saying that the ombudsman had previously ruled that late applications in exceptional circumstances must be admitted, even if not part of the published admission criteria. My LA's published admission criteria simply states that ' Late applications will not be dealt with until all of the on time applications have been dealt with, even if your child has special circumstances or has a sibling at the school.' It says absolutely nothing about exceptional circumstances and I wondered if what they are saying is correct? Obviously, the published admission criteria has not been properly implemented, and as it was confirmed at appeal that my ds would have been the next child in at the time of offer day, then this has obviously disadvantaged him. For some reason they are still sticking to their guns about allowing these late applicants, even though there is nothing in the published criteria. can they do this? incidentally, I've got to wait til next week for the outcome despite having my appeal on 1st July as another parent had to postpone their appeal, which will now be heard this Friday, so got quite a while to ponder.........

djjc,
Your LA do appear to be somewhat cavalier in their approach to the regs.

As your appeal on the 1st July was presumably a multiple appeal (more than one appealant) then the parent who postponed their appeal should have told either it went ahead as agreed on the 1st July with them not present (a tad naughty) or their appeal became a separate appeal all together. Postponing you not getting the result of your appeal is unacceptable. Whilst it is not illegal to dow hat they have done it is not fair and I would say gives a problem in that the panel members have to remember what happened and was said over a week previous.

In terms of the handling of the late applications, I think that there are a number of points. Firstly the LA have not followed their stated policy, which is "Late applications will not be dealt with until all of the on time applications have been dealt with, even if your child has special circumstances or has a sibling at the school." That is absolutely clear. I suspect that most people would not differentiate between "special circumstances" and "exceptional circumstances" so that should not change any decision.

So we are left with this statement that the Ombudsman had previously ruled that late applications in exceptional circumstances must be admitted, even if not part of the published admission criteria. One of my LAs says in their application book "Exceptionally where in the Council's view there is a genuine reason for the late application, for example exceptional medical reasons preventing an earlier application, late removel into the area due to a recent house move, a late application may be treated as on-time, where it is practical to do so. Whilst I can't find any Ombudsman decisions to back that up I would strongly suspect there are.

Personally as a panel member I would not have accepted your quoted example as the parent presumably had from September 1st till the closing date to process the application but did not, the car crash just happened at an unfortunate or convenient time depedning on how you look at it.

However the key point to me is that my LA has spelt it out in the application document and your LA is doing it because they know about it but have not indicated that is what will happen. I suspect that the Ombudsman would see that as maladminstration as they are not carrying out their agreed procedure.

Thanks Admission, and yes, I see it that way also, that if they know about this then they should publish it, as many other councils take the trouble to do. There is absolutley nothing about this anywhere, either on their website or in the published admissions booklet. They have, in fact, done the complete opposite of the words they publish in respect of late applications. I also note what you say about the appeal panel having to remember what was said over a week ago as this is also something which has crossed my mind. In this case, there were 3 appeals for this school, but they were all heard separately and were all scheduled for 1st July.
If the appeal is unsuccessful and I contact the LGO, does this mean I would have to go through the whole appeal process again or can they rule to admit the child to the school?
Also, my appeal was heard just outside the 40 days from the date the appeal was lodged, by 3 days.... must say I feel like they have totally robbed my little boy of his place at the school but also don't think I could go through the stresses of another appeal.

The LGO orders a fresh appeal in most cases where they agree with the parents. However, they do sometimes order that the child is admitted without a further appeal. I think there is a reasonable chance they would do that in this case if they agree that the LA has mishandled the late applications. There is no point in the LGO ordering a fresh appeal if there is only one possible outcome.

I'm afraid your appeal being late won't help you directly unless you can show that the delay disadvantaged you in some way (unlikely). However, it is another point to bring up when going to the LGO as it demonstrates your LA's cavalier approach to regulations.

I actually disagree with Admission regarding delaying the result until the last appeal has been heard. I agree it isn't ideal but it seems to be what the Appeals Code requires (paragraphs 3.9 and 3.10). I guess it depends on what you call a "significant gap" (paragraph 3.10).

However, I agree with Admission that the late application you know about should have been processed as a late application. On the facts you have given I don't see any reason for it to be processed as on time. And, from what you have said, the LA didn't even attempt to get supporting evidence so for all they knew the parent could have been making the whole thing up.

If this goes to the LGO (and I hope it doesn't), you've got plenty to bring up:

• The LA measuring to a gate the infants are't allowed to use
• The LA processing late applications as if they were on time without adequate justification and without obtaining evidence from the late applicants to support such a decision
• The LA introducing significant new evidence (the LGO case) at the hearing
• The LA holding a place open until all appeals have been heard
• The LA failing to comply with the appeals timetable

And that's just off the top of my head! I may be able to come up with even more if we go through it properly.

Fingers crossed that the appeal panel find in your favour.

thanks prh, will let you all know what happens, hope you're not sick of me asking for advice, just feeling very confused and am now pretty angry at the way they have carried on...........and your advice has been amazing.

Dear prh and admission......just found out we have won our infant class size appeal!!! yippee!! Don't know whether it was the gate issue or the late applications issue, the letter just says that an error was made which disadvantaged us and the panel have upheld our appeal! I am so pleased and cannot thank you both enough for your excellent and accurate knowledge and advice, thankyou thankyou thankyou!

djjc - that is brilliant news

PRH/Admission - how many successes is that this year now, are you keeping tally?

Excellent news. I'm really pleased for you.

FWIW I think the panel would probably have gone for the late applications issue as that is easier to decide. I also suspect the wording on your letter would have been different if it was the gate issue. However, it doesn't really matter. You've won. Well done!

Betsy - No idea but we do seem to be doing pretty well. I'm sure our win rate on Mumsnet is well above the national average.

Great news but a bit annoying that the letter does not say what the key factor was.

yes admission i agree. i am intrigued to know and have rang the clerk to enquire. she was unavailable when i rang and i have left a message but no call back as yet......
thanks again all