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Is the current infant class size appeals regime unfair to a small group of vulnerable children?

This blog summarises a campaign by an informal working party to change the law relating to the current infant class size appeals regime that is unfair to a small group of vulnerable children.

The problem

A vulnerable child appeals regarding an infant class place in a class subject to the infant class size limit. There has been a change in the family’s circumstances after the date of the application for a school place and before the date of the appeal. The child has a compelling case to attend a particular school, however the admission authority is unable to take the circumstances into account, given that the infant class appeals regime is a review mechanism (see paragraphs 4.4 and 4.8 of the School Admission Appeals Code 2012).

This issue is particularly acute in admission authority areas that do not have social and medical criteria in their oversubscription criteria (for example some diocesan boards). The authority therefore is unable at any stage to take the family’s circumstances into account.

So what is the solution?

The solution to this problem would be a discrete amendment to insert a new category of “excepted pupil” into paragraph 2.15 of the School Admissions Code. This 2014 Code is shortly due to be amended, given the Department for Education’s stated intention to consult on an amended Code. Amendments would also be required to the School Admissions (Infant Class Sizes) (England) Regulations 2012.

The detail of the campaign to make this amendment

A campaign has been conducted by an informal working party which has been seeking to change the law over the past two years. It is the initiative of two independent appeal panel members. The working party consists of independent appeal panel members, myself and clerks to the independent appeal panel- and represents a wide regional jurisdiction.

The aim is to seek to amend paragraph 2.15 of the School Admissions code (categories of “excepted pupil”) and the underlying Regulations to assist the most vulnerable and disadvantaged children.

Currently, infant class size appeals to the independent appeal panel can usually only be allowed if there has either been error by the admission authority, or unreasonableness (as it is known in the Code) – which should perhaps better be termed “irrationality”.

Paragraph 2.15 of the School Admissions Code sets out the provisions regarding pupils whom the admission authority may choose to admit over 30 into an infant class (“excepted” pupils). This is underpinned by the School Admissions (Infant Class Sizes) (England) Regulations 2012, in particular Regulation 5 and the Schedule to the Regulations.

There is no desire to increase the infant class size limit above 30.

A number of case studies illustrate the injustice of the law as it currently stands. For example, the admission authority could not admit a child, in a case where the child’s father had committed suicide after the date of the application for a school place, affecting the child’s need for the preferred school. In another case, after allocation day, the child had been diagnosed with cancer, requiring treatment locally. The child already attended the nursery at the school. It was an own admission authority school and the school governors wanted to admit the child in these circumstances but could not do so.

The current regime therefore does not build in any discretion for the most vulnerable. At the moment, on a strict reading of the law, neither the admission authority, nor the independent appeal panel (reviewing the decision of the admission authority) has the discretion to take these compelling exceptional circumstances into account.

This lack of discretion is leading to arbitrary justice, as some independent appeal panels are in reality refusing to consider the exceptional circumstances, whereas others are “swayed” by the personal circumstances without having any legal power to take them into account.

As a result of lobbying by the working group, the issue was addressed in a debate in the House of Commons on 7 January 2016. This was an Adjournment Debate on Primary School Admissions and Exceptional Circumstances. The debate was led by Suella Fernandes MP, who concluded her comments by stating (as reported in Hansard):

“My response is to ask whether the rules can be changed.

The representatives to whom I have spoken made some suggestions about what might need to be changed. There is an existing precedent for protecting categories of vulnerable pupils in the admissions process in the treatment of previously looked-after children in the current schools admissions code as exceptional cases. That seems to offer a useful model, and it would appear that a specific and discrete amendment to paragraph 2.15 of the school admissions code would be what is required, inserting a new category that could be worded along the lines of “children in crisis for whose mental health and/or physical well-being it is in their best interests to be admitted to that particular school.”

What the campaigners on this issue are seeking is not an immediate commitment to such a change, but merely that the Government should consult on it, examine its likely effects and consider the inclusion of a general discretion. They feel that this would allow the issues I have summarised today to be properly considered and aired in detail…”

The Minister of State for Schools, Nick Gibb MP, replied at length and concluded  in relation to the proposed amendment to paragraph 2.15 of the School Admissions Code that (again as reported in Hansard):

“Although admissions authorities are able to give priority to children with social or medical needs, when those particular needs only arise after applications have been made, the infant class size limit means admission authorities are unable to admit the child and an appeal panel would not feel able to uphold their appeal.”

We are currently considering a number of possible changes to the admissions system to support families and schools while ensuring the system remains fair for all, and we will look at my hon. Friend’s suggestions in carrying out this work. I am grateful to her for raising this important issue today. I hope that she is reassured to learn that we will look carefully at the important issues she has raised and consider her suggestions for changes to the codes.”

It is hoped that this issue will be addressed in the forthcoming Department for Education consultation on the new School Admissions Code.

What do you feel about the inclusion of this discrete amendment  into the School Admissions Code and do you wish to respond to the consultation when it is published?

Edulaw Chambers Tanya Callman

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