Admissions criteria- disability discrimination?

[verystressedmum]

Ds is 17 and wasn't able to start yr 12 last September because of cancer. In full remission now (thankfully) and wants to go back to A level- at another school to the one where did GSCEs.

They have said their admissions criteria is that they only admit yr 11 school leavers to yr 12 and the board of governors will say no to an older child (by 1 year) to start yr 12.

If she was a yr 11 leaver there would be problem...however the problem is that she wasn't able to be a yr 11 leaver applying to start yr 12 because she was having cancer treatment!

Cancer is a defined disability and is protected under the equality act, and from what I've read of the legislation the admissions criteria is therefore discriminatory. Waiting to hear back from the board of governors but just wanted a bit of advice if anyone knows.
Thank you

This is going to be a very grey area because it is only in the last couple of years that there has been any movement in the ability to delay entry into school. Schools and Local Authorities have been reluctant until very recently to accept pupils in a different year group other than their age group but there has now been changes by the DfE to make it far easier to be out of synch now. The problem is firstly that it is still the decision of the Local Authority as to whether they will admit out of age group pupils and secondly that year 12 and 13 are above the age that school is compulsory so there is no absolute need to admit.
Having said that the school has an admission policy and an admission criteria, so my first suggestion is to look at these very carefully and see whether there is any mention of admission of out of age group pupils at either year 7 or year 12. I suspect there will not be and you can therefore ask the school to confirm exactly how and when such a decision was made and can you see written evidence of such a decision. I suspect given this a very grey area that actually no such written decision will exist.
If you take the current belief that there is now much more presumption that children can be entered into school a year later then normal, with the LAs agreement, into Reception year then it follows that there must be a similar agreement for year 7 and year 12 otherwise there are going to be all sorts of problems for such primary school pupils when they move to secondary school.
It is very much an area where the law is only just going to be laid down and agreed so you will I am afraid have to argue the points with the Local Authority or if it is an academy, firstly the MAT Board of the school and then the ESFA.
My other suggestion which may or may not be practical is to look whether the Local Further Education College can offer appropriate courses as they are usually far more accommodating on age than schools are.

From a non-admissions point of view, I wonder if this is the school's way of not accepting anyone wanting to 'restart' 6th form, whereby they have not succeeded with one set of A levels in y12 and want to try again with a different set?
If that is the reason, then the governors might be more willing to accept your DS out of age?

Thank you for the replies.
Yes it's most likely a way to stop pupils from repeating the year having achieved lower grades than they would have liked.

I've read their own admissions criteria and it doesn't say anything about out of age applicants that I can see.

I would totally understand if it was other circumstances than the illness. It's very unfair that if she hadn't have got cancer she would have applied last year as a yr 11 leaver and would have been accepted no problem at all, but through no fault of her own she wasn't able to do that.

From what I understand, discrimination occurs if a person - for a reason relating to a disability- is treated less favourably than another for whom that reason would not apply.
She was unable to make the application in the appropriate year for a reason directly relating to her disability, therefore she's experiencing less favourable treatment than another child who didn't have cancer.
Is that right or have I got it wrong?

I can't believe it's right that she will be penalised because she was having cancer treatment, it seems very unfair.

Any advice is very gratefully received!

There is a get out for the school in that the legislation allows them to treat a disabled person less favourably than a non-disabled person if they can show that the treatment is a proportionate means of achieving a legitimate aim. So it would revolve on whether the school can convince the court that it has valid reasons for this policy.

To get a definitive ruling you would have to take the matter to court. That would be time consuming and could be very expensive if you lose. I would leave that for now and follow Admission's advice - argue with the LA or the MAT Board that the school will need to admit children to Y12 out of age group due to the government making it easier for parents to defer for a full year. You could also bring up the equality issue with them at the same time. I would recommend using both arguments rather than focussing purely on equality.

Thank you for your reply.
Yes I agree that's the best way to approach things and I'm going to follow yours and admission's advice.

I read that it's up to the board of governors to decide whether a child can start out of his year group and the best interests of the child have to be considered.
I do remember that in primary school a younger child who was very bright skipped ahead one year and went into secondary school with that older year group so it can be done.

I know that discrimination can be permitted or justified in certain situations, but I don't know what the school would say why it wouldn't let it happen in this circumstance. There wouldn't be an issue with resources or anything like that and if they let children repeat an AS year for reasons like low grades etc then age shouldn't come into it. But I don't know if they allow that so I can't say really.

So I will go down the route of deferring a year also an equality issue.
I don't want to go to court (it will be SENDIST as it's a school) because by the time anything is decided the school year will probably be over!

Thank you for the advice.

How far along did she get in the application process to Year 12 originally? You say that she wasn't able to start year 12, but had she been accepted somewhere already? If they do let people restart the year with different A-levels if they've not done well, perhaps you could argue that it was a sort of deferred year or something, so that she was in a similar position?

It does seem incredibly unfair. What unlucky timing. Was she required to be registered somewhere for some kind of program during the year when she was having her treatment, even if she was then unable to attend - even a hospital school? You always hear that 17 and 18 year old have to be in some sort of education or training, but there never seems to be any way to check that or enforce it. I thought it might have helped in some way in her case, because if she was 'on the books' somewhere, they'd have a vested interest in trying to get her on the best courses they could.

Sorry no practical advice - will leave that to the admissions experts - but just lots of sympathy at what seems like a really unfair situation, after what she's already been through.

Another potential issue is your DSs age. If he's 17 now then he'll turn 19 before the end of year 13. Asides from the fact that 19+ education is funded completely differently (although as SEND is involved there will be provision made in the legislation, so this is probably less of an issue), lots of schools will have problems with a 19 year old pupil being on campus with much younger children for safeguarding reasons. This is something that I expect you'd need to look into.
Are you/he sure that he wants to go to a 6th form rather than a college? Colleges are in a position to be much more flexible on age, both for safeguarding and funding.

Hi
Yes last year she was accepted back to the sixth form of the school she was at. She got the grades they require so she automatically got a place if she wanted it but she wasn't able to go as she was having chemotherapy and there was too much of an infection risk to be at school the consultant didn't want her there, after chemotherapy was radiation it finished in January this year but still wasn't able to go to school because of fatigue but also she'd missed too much it wouldn't have been possible to catch up, but she's much better now and feels able to to study.

We've applied to another school which wasn't the original school. This is where the problem lies.

They've said if she was a yr 11 leaver it would be no problem but because of the age the board wouldn't allow it, he said something about why I think but I didn't quite catch it and can't remember what he said.

It's just such a shame as it's really through no fault of her own. We'll have to look at going back to the original school which I think is a brilliant school but she'd like to go somewhere else but there may not be much choice (there are anxiety issues as well).

I thought the legislation was there to protect people in cases like this, but it seems like because of the cancer she just doesn't get the same choices she would have had if she didn't have it.

I suppose ultimately the purpose is to get an education but such a shame that she can't feel happy about this but I'm sure she'll be ok.

I don't know being 19 is an issue I've never heard about that before, but I suppose it's not come up before so I wouldn't have.

I'll go down both routes of pupils being able to be kept back a year also the equality thing and see what happens!

Thanks very much.

OP, a couple of further comments.
If your daughter is applying for a school different to that where she took her GCSEs then under 2.6 of the admission code you should apply for the place under the normal admission arrangements for the school for their sixth form. The school set this down in their prospectus. It is possible that the school only admits pupils who took GCSEs at the school in which case the school would be perfectly within their rights to refuse admission (whatever the age year group) and this would not be discriminatory. You need to check what the school prospectus says about admission to the 6th form. If it says they take pupils from other schools into the 6th form then you should be given written confirmation of being rejected and the reason for that rejection. I suspect all at present is verbal rather than in writing, so you need to get a response in writing. There is a right to an admission appeal for a 6th form place but it is not often this happens.

When it comes to admission of children outside their normal age group, then it is covered (as far as it goes) under 2.17 of the admission code. The first sentence of this might be of some use as it states "Parents may seek a place for their child outside of their normal age group, for example if the child is gifted and talented or has experienced problems such as ill health." Your daughter must fit in the latter category, so must be considered. It also says in 2.17A that admission authorities must make decisions on the basis of the circumstances of each case and in the best interest of the child concerned. That confirms that the relevant authority who makes the decision is either the Local Authority if the school is a maintained school or the Trust Board if it is an academy. Again it states that there is a requirement for the admission authority to set out clearly the reasons for their decision, which would be in writing.

I think you need to be a bit careful of the equality issue in that a well used definition for disability in education circles is that the condition must be substantial, long term (that is last for longer than a year) and have an adverse effect on their ability to carry out normal day to day activities. If you are saying that the cancer is in full remission and it is less than a year since it was diagnosed, you might not be covered under this definition of disability.

Thank you for your response it's give me some great information.

The school definitely accepts external applicants for A level, there's nothing that says they don't in fact they say they welcome those from other schools especially if another school does not offer a particular course which is the case here as the old school does not offer English language only English literature and the new school offers English Language.

I will read the admissions code especially those parts. And I'll get it in writing too. Does it make a difference if it's in writing?

The legislation changed (I think) but cancer is covered regardless of length of illness and you're covered even if you're in remission. I can't think what the new legislation is called but I think the DDA was amended in 2006 to cover illnesses such as MS and cancer in that you're regarded as having a disability from point of diagnosis onwards regardless of symptoms or remission. And education has to adhere to this too (I'm almost certain from what I've read).

Thank you for your help. I'm going to read the admissions code now!!

19 yos in school 6th form aren't funded 'differently' but they do only attract 80% of the funding for 16 and 17 Yos. An inclusive school should just take that on the chin though. There is no way for the school to get increased funding from the ESFA, it's automatically based on pupil census data (lagged)

The Equality Act rather. I've read so much I'm getting so confused!

a well used definition for disability in education circles is that the condition must be substantial, long term (that is last for longer than a year) and have an adverse effect on their ability to carry out normal day to day activities

Apart from the bit in brackets that is essentially the definition in the Equality Act. Cancer is not specifically mentioned in the legislation but the Government is clear that someone diagnosed with cancer, MS or HIV is automatically classed as disabled from the day of the diagnosis.

If you are saying that the cancer is in full remission and it is less than a year since it was diagnosed, you might not be covered under this definition of disability

Her daughter is covered. Under the Equality Act 2010 S6(4) someone who has had a disability is entitled to the same protection as someone who currently has that disability.

The section in the Equality Act 2010 that determines cancer is a disability on diagnosis is Schedule 1(6)

See www.legislation.gov.uk/ukpga/2010/15/schedule/1

Thank you.

I thought that was the case, that cancer is protected from diagnosis and continues (I think forever?) when in remission. As long as it relates to something to do with the cancer.
Hopefully the school are understanding of this situation.

I am hoping that together will all the admissions information she will be successful. I can't really see any issues as to why it would be a problem to admit her in these circumstances.

Thank you for the advice!

I'm a teacher. We have loads of students who come to us who haven't been there for yr 11. We have 17/18 year olds in y12 and plenty of y14's in y13.

TBH I've never heard anything like this. Plenty of students move to other schools at 6th form depending on what subjects are being offered.

Inclusion means offering everyone the same chance. I think your Dd is being discriminated against in lots of ways, not just her illness.

I'd contact the LEA. I think this is appalling. Is it a private school?

Going to post the same as above poster.

I work in a school with a large sixth form. We have tens of kids repeat yr 12 and tens of kids repeat yr 13, so loads who are technically "year 14." We also take kids out of year group all the time, including foreign students whose parents might work at the University and have just moved here as well as younger students further down the school who are just "out of year group" for all sorts of reasons. This is an over-subscribed school, too.

I can't for the life of me understand how a student who has missed a year through absolutely no fault of her own can be without a sixth form place. She would be welcome at any school I can think of.

Hi Emoji, I thought the same when we went for the interview last week.
I'd actually spoken to the head of sixth form in June and explained the situation and she said it wouldn't be a problem that she was an older child as there was medical reasons etc.
Then last week she said she didn't realise she was an older child and thought dd had sat her GCSEs this year but was unwell the previous year and as she was an older child they can't admit her.
Although she was very nice. She then spoke to the head who said in no uncertain terms that as she was an older child they wouldn't let her in but I can try anyway with an application.
I asked if she had been a yr 11 leaver would she be admitted, he said yes. I said but the reason she isn't a yr 11 leaver is because she had cancer and he just shrugged his shoulders.

The problem is that we won't hear back on a decision until maybe tomorrow or Thursday and I have to let another school know this morning if she wants a place there.
So technically she has a place at a school for A level just not the school she'd like. I don't know if that has a bearing on things although there is the point that the new school offers a subject she'd like to do that the other school doesn't.

I've no idea what to do now except wait!
Thanks for the advice.

No it's not a private school just a normal school

Danglingmod I thought the same tbh and was a bit gobsmacked last week coming out of the interview!
I don't want her to have special treatment ((or maybe I do!) but I didn't think that would happen.

Maybe I should have enrolled her at the school last year but it's not something I thought about as she was having chemotherapy at the time schools were doing their admissions and wasn't well enough, and her consultant said she shouldn't really be in the school environment anyway as the risk of infection was too great.
She wasn't actually able in any way to be at any school last September!

I'm still gobsmacked. I had 2 students join my Y12 class late last year. Both had done a year at college, but decided to do A levels instead. Neither had been in y11 at my school.

Have you got a copy of their admissions policy? I think you need to challenge this.

I actually think that, unless there's a very good reason for her to go to this sixth form (you mentioned choice of subjects, or it's nearer home and she still gets tired) that I wouldn't want my child there if they don't want her. Unless you've massively misunderstood what you've been told, it sounds like a wholly uncaring, unsympathetic place and if, heaven forbid, she were ill again, how would they treat her then? I think I'd want her to be somewhere that wants her and supports her in picking her academic studies up again, not applies some rule so heartlessly (and randomly- they'd take her with a "gap" between yr 10/11 but not yr 11/12???!)

Doesn't exactly bode well does it, for them being generally caring and making good decisions!!

I think the exact same thing!
After I came out last Friday my first thought was I don't want her in that school and the head teacher was horrible! And I did think how would they treat her when she needs a day off for medical appointments or is tired and possibly can't manage the day at school or possibly extra time for assignments (I don't know if that will be necessary but potentially it may).

But she really wants to go to that school so I feel like I have to try for her. I feel like waiting for them to call me and telling them to shove their school up their arse and I'll be putting in a complaint!

I'll have to speak to dd now and see how to proceed.

Thank you

ok, writing quite frankly here.

as a sixth form tutor and in charge of admissions for several subjects, this is the situation with cancer.

A certain number of children with cancer will miss time in the sixth form or even drop out.

This severely affects the retention and success criteria of individual teachers, who rely on their statistics for job security, and to be able to pay their mortgage, quite frankly.

There is ABSOLUTLY NO reason why a student cannot start year 12 age 17, many many do, mostly becasue they have messed up and are restarting in different subjects in different schools.

Some because they spent a year retaking GCSEs, or doing a BTEC level 2 course to qualify for a BTEC level 3 course, or sometimes have done well enough on BTEC to transfer to A levels.

However, a child with cancer is going to be something many teachers will strive vigorously to avoid - please don't judge too harshly, they are thinking of keeping a roof over their own children's heads.

You need to contact the chair of governors right away,

but be all nice, as nice as possible, you don't want to be aggressive, or repeat what I have told you, as it will set up a confrontation which will not be constructive.

get onto them right now, and just keep on and on until they let her in, they have no legal reason to refuse.

Once she is in, she is likely to be treated with sympathy and inclusion by staff, who of course care for teenagers, or they wouldn't be doing that job, and of course will care particularly for a child who has had such a hard time.

once she is in, and they have accepted that, that is, they won't want her on their register and on their statistics, but it isn't personal, and once she is, there is unlikly to be any issue

I hope that makes sense.

I have come across similar many times, in fact ended up being asked to offer places to many students with cancer, on the basis that my mortgage was paid and I had no particular career ambitions, which was fine, if they actually wanted to do my course!