National Primary Schools Offer Day 2020 has taken place against an unexpected backdrop of most schools being closed. When applications for primary school places were made before the January deadline, no one could have foreseen the current lockdown measures meaning that currently only around 2% of children are attending school. Despite this, on the evening of 16th April, the majority of councils across England offered parents and carers primary school places for their children to start school in September. There is much speculation and little certainty as to when schools will fully open again. What is clear is that starting school for the first time is a significant and exciting milestone for a child. For parents, there is the burden of responsibility of ensuring that their child starts their school journey in the best possible education setting.

There is inevitably some movement to places offered following National Offer Days for both primary and secondary schools and as parents accept or reject places, the position crystallises. Some children on waiting lists for a particular school will eventually be offered their preferred choice.

For the majority of parents there will therefore be relief as top choice school places are confirmed. For others, there will be concern and disappointment that the school place offered to their child is not the one they wanted prompting some to explore the judicial appeals process. We look below as to what this means.

Can you appeal?

Yes, a parent or carer has a statutory right of appeal in accordance with the Schools Standards and Framework Act 1998. There is a strict deadline to lodge an appeal and parents are advised to check this carefully – it is often just 21 days. The right of appeal applies to secondary schools, grammar schools, sixth form places as well as primary schools.

For independent schools, there is a separate route – the Independent Appeal Panel and the route of judicial review proceedings.

The appeal itself is to the admissions authority – that is to say, the local authority, academy trust or school governing body depending on the school place being appealed. The appeals process is designed to be independent, impartial, transparent and accessible as governed by The School Admissions Code 2012. The appeal panel is made up of three members of the public, independent of the local authority, and decisions are made by a simple majority of votes cast. The panel therefore ultimately has the power to decide whether a child should be admitted to the school.

How are appeals decided?

For many appeals, the panel makes its decision through a two-stage process. The first stage is to examine the admission authority's decision to refuse admission:

  • did the admission arrangements comply with the mandatory requirements in the legislation?
  • were the arrangements correctly and impartially applied?
  • would the admission of an additional child prejudice the provision of efficient education or efficient use of resources? In other words, if another child is admitted to a class, would this be to the detriment of good teaching and learning for the other pupils?

If the panel concludes that there was a good reason to refuse admission, stage two is to consider a parents' case and what special circumstances there may be for a child attending that particular school. For example, are there medical or social, emotional and mental health reasons?

The panel then conducts a balancing exercising weighing up a parents’ case against that of the admissions authority. The question is: does the benefit to a child going to a particular school outweigh the disadvantages to the school of having one more pupil in a class?

What are 'infant class sizes appeals'?

For primary school places, different criteria apply. The School Admissions (Infant Class Sizes) (England) Regulations 2012 limit the size of an infant class to 30 pupils per school teacher. For many admissions authorities therefore, the refusal of the offer of a place is on the grounds that class sizes are too large; that offering a place to just one more child would breach the infant class size limit and that there are no measures it could take to avoid this without prejudicing the teaching of other pupils and the efficient use of the school's resources. Only in very limited circumstances can admission be over the limit prescribed.

For an appeal of this type, the panel considers:

  • would the admission of one more child breach the infant class size limit?
  • did the admission authority set its admission criteria to comply with legislation?
  • did the admission authority breach its own admissions criteria code either deliberately or by mistake?
  • were the admission arrangements correctly and impartially applied?
  • did the admission authority act 'unreasonably'? This is a very high threshold said to be "a decision so outrageous that it is in defiance of logic."

It is only on these technical grounds that an infant class size appeal will be upheld meaning that admissions appeals for primary school places are particularly challenging and need to be robustly presented and evidenced.

Can you appeal the decision?

A parent can only appeal once. There is no further right of appeal.

However, where a parent believes an appeal hearing has been conducted unfairly, a complaint of maladministration can be made which may force a new appeal hearing to take place.

For a maintained school, this complaint is to the Local Government Ombudsman. For a maladministration complaint for academies, the complaint is to the Young People's Learning Agency.

Examples of complaints upheld in the past include where there have been "a catalogue of administrative errors" at the hearing, where the appeals panel have made their decision on irrelevant information, or where there has been disability discrimination.

What are the prospects of success?

The chances of success vary between schools and local authorities. The last-published statistics from the Department for Education for maintained and academy school places starting in 2019 show that 59,420 appeals were lodged out of a total 1,510,912 applications. Of those which were heard by an appeal panel, 10,177 were decided in a parent's favour. That is 22.2%. The prospects of success for an appeal are therefore not high and even more challenging for primary school place appeals. That is not to say that parents should not exercise their statutory right to appeal but they should do so with the expectations that there are limited circumstances in which an appeal can be upheld and by ensuring that they make the best possible case to optimise chances of success.

What impact will the crisis have on admission appeals?

The Department of Education has advised that the coronavirus outbreak will impact on the ability of admission authorities to carry out admission appeals in the usual way. The appeals process usually takes place in June and July to ensure that school places are secured before the start of the academic year in September. Delaying the appeals process would mean confusion and uncertainty for children for the start of the academic year. The appeals process will therefore go ahead but with some flexibility and adaptations to the usual process.

Time-limited regulations are expected to come into force on 24th April 2020 and continue until 31st January 2021 to relax some of the current requirements in the School Admission Appeals Code 2012.

For example, it will no longer be mandatory that appeal panels take place in person which would be contrary to the social distancing restrictions. Instead, appeals can take place also by telephone, video conferencing or through a paper based appeal process.

In the circumstances whereby one of the three panel members withdraws (through illness, for example) the panel can continue the appeal as a panel of two.

The deadlines relating to appeals will be amended while these regulations are in force.

What about children with special educational needs?

For parents of SEND children, consideration should be given as to whether the admission authority has discriminated against their child because of their disability and this could form the basis of an appeal. For example, a child with dyslexia should be provided with reasonable adjustments for selection tests for grammar schools.

If a child has an Education Health & Care Plan, challenging a decision to name a particular school or failing to name a school is a different appeal process. In these circumstances, the appeal to the Special Educational Needs and Disability Tribunal.

The Children & Education law team at Russell-Cooke assists parents with admissions appeals for all schools and have the expertise and experience to know how best to present your case. We are on hand to advise all aspects of education law and you can contact us on 020 3826 7550.