It’s an anxious, exciting time of year for many parents and carers applying for primary school places at mainstream schools, (speaking from experience).

While everyone hopes for the best, the reality is that not all families will be offered what they were hoping for, at least initially. Minds will soon be swimming with talk of published admission numbers, oversubscription criteria and waiting lists.

Parents unhappy with a refusal decision from their preferred maintained primary school can appeal to an independent panel that is convened by the local authority and made up of volunteers from the local community (at least one of whom may have a background in education) plus a legally-qualified clerk who is independent from the local authority and the school.

I’ve been a clerk at a number of these appeal hearings. It’s generally quite an informal and user-friendly experience. You probably won’t need a lawyer representing you at the hearing, but you may want to make yourself familiar with law in this area (including the local authority’s admissions criteria, which vary depending on the authority) and discuss your situation with someone experienced before writing your grounds of appeal and presenting your case.

The key guidance documents from the Department for Education are:

A few pointers for anyone considering an appeal where the oversubscription criteria have been applied:

  • Read the refusal letter/s carefully as this should explain the reasons for the decision and explain how the appeal process works. You have 20 school days to lodge an appeal, starting from the date that you were notified of the decision.
  • In all cases, the panel must consider first whether the admissions criteria comply with the legislation [1] and whether they were correctly applied to the child. An appeal may be allowed at this stage where the criteria are not correctly applied if, but for the error, the child would have been offered a place and the admission of a further child would not prejudice the provision of efficient education or efficient use of resources.
  • There are very strict legal limits on class-sizes in Reception, Years 1 and 2 (also called ‘infant class-size’ limits). These years must not have classes with more than 30 pupils unless there are exceptional circumstances. [2] If the criteria are lawful, have been correctly applied and the relevant year group in the School is full, an appeal will only succeed where the refusal decision was not one that a reasonable admission authority would have made in the circumstances of the case. This is a very demanding test. It requires parents to show that the decision was absurd when compared with the admissions criteria and that no reasonable decision-maker would have refused to offer a place.
  • Outside of ‘infant classes’ (so for Years 3 to 6), the test is much broader and involves 2 stages. First, the panel must consider in relation to each child whether the admissions arrangements complied with the law and were applied correctly and impartially. If any of these requirements are not met then the appeal will be allowed. Second, and alternatively, an appeal may be allowed where the prejudice to the school caused by admitting a further child into the relevant year group is outweighed by the case for the child to be admitted to the school. Parents should identify their reasons for preferring the school and why the child’s interests can only be met by that school. The convenience of the school run for working or single parents won’t generally be sufficient because the main focus should be on the child’s interests, not the social circumstances of the parents.

[CORONAVIRUS UPDATE: 16 April 2020]: The government has published new guidance on how appeals should continue to be dealt with during the COVID-19 pandemic. New regulations are expected to be made on 24 April 2020 (and lasting until 31 January 2021) to ease some of the requirements in the School Admissions Appeals Code 2012. The general purpose will be to give admissions authorities the flexibility to adapt the appeal process to the difficult circumstances of the pandemic and resultant lockdown restrictions while ensuring that families get a fair hearing.

The key changes are to include:

  • Disapplication of the requirement to hold appeal hearings in person. Hearings may be done by phone, video conference or on the papers. The clerk will have an important role in liaising with the parties to set up an appropriate form of hearing;
  • Relax the requirement that 3 panel members decide an appeal so that if one panelist has to withdraw, panels of 2 can go on to decide appeals;
  • Amending the deadlines for appeals to be made in certain circumstances;
  • All panels will continue to require a legally qualified clerk to advise them on the law.

Further government guidance is expected to accompany the new regulations, which is expected to emphasise the need for training, correct procedure and ensuring fair hearings.

Families should note that, in broad terms, paper-based procedures tend not to have the same advantages as other forms of hearing and that certainly reflects my experience. Families will still have the right to complain to the Local Government and Social Care Ombudsman if there has been maladministration of their appeal/s.

If you’d like to book a consultation to discuss your circumstances, get in touch with me for more information.

CONTACT ME FOR EXPERT ADVICE ON EDUCATION LAW

[1] Part 3 of the School Standards and Framework Act 1998.

[2] See the School Admissions (Infant Class Sizes) (England) Regulations 2012.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

One Comment

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