Fair access protocols

The school admissions code requires each local authority to have a fair access protocol. All schools and academies must participate in their local authority’s protocol. This ensures that unplaced children, especially the most vulnerable, are offered a place at a suitable school as quickly as possible. This includes admitting children to schools that are already full.

The fair access protocol is designed to ensure children who find themselves in challenging circumstances are found school places and outlines the arrangements to support this. It is not intended to cover the majority of children for whom in-year admissions are straightforward and for whom normal admission arrangements apply.

Fair access protocol

Introduction

Legal background

Section 1 - When will FAP be applied?

Section 2 - Retrospective admissions

Section 3 - Why is FAP needed?

Section 4 - Key principles

Section 5 - Which children are included in FAP?

Section 6 - Will schools be exempted from FAP in any circumstances?

Section 7 - How will the FAP be administered?

Section 8 - Approaching the identified school

Section 9 - The operation of the pupil placement panels

Section 10 - What if a school refuses a FAP referral?

Section 11 - Reporting

Section 12 - Area Pupil Access Team Contacts

Introduction

There is a statutory duty that schools participate in a Fair Access Protocol and Lancashire has a successful history of this. The placing of Fair Access pupils requires further clarity and transparency and this new protocol seeks to ensure that all schools contribute to the placing of these children in line with the spirit and ethos of the original protocol.

We are committed to developing our strong relationships with schools and hope this updated protocol continues to support our most vulnerable children and the schools who offer them a place.

Secondary schools and academies and all admission authorities do share responsibility for ensuring that vulnerable, new to area children are admitted to school as quickly as possible. Children missing education are at a significant risk of underachieving, victims or harm or exploitation and of becoming NEET later in life. There should be an expectation that we all work in partnership to safeguard and promote the welfare of children.

For vulnerable (hard to place) children Local Authorities must have a Fair Access Protocol (FAP). This should be agreed with the majority of schools and academies. All schools and academies must however participate in its operation.

FAP operates outside of normal admission processes and can allocate places in year groups which are already full or even over the school's admission number.

As with all admission issues effective working relationships between schools and the Local Authority and a mutual exchange of information about individual cases and local factors are vital. The vast majority of Lancashire's In-Year secondary admissions proceed with minimal bureaucracy and delay. It is intended that this will continue in order to minimise FAP referrals.

For the FAP to work effectively it is imperative that the Local Authority has an overview of all the pupil placements that have taken place within a district. This document should demonstrate the distribution of pupils amongst the schools and needs to be a 'living' record that will provide a starting point at any meeting of the Pupil Placement Panel, when considering future placements. Although the School Admissions Code precludes FAP applying to looked after children and children with Education Health and Care Plans it can be helpful for these pupils to be included in the overview alongside any managed moves that have been agreed amongst schools.

Legal background

FAP has a legal basis. The School Admissions Code (September 2021) is issued under Section 84 of the School Standards and Framework Act 1998.The Code imposes mandatory requirements upon various groups including Local Authorities and admission authorities (the Local Authority and Governing Bodies of all voluntary aided and foundation schools and academies and free schools).

The Code specifically requires that:-

Each Local Authority must have a FAP which is agreed with the majority of schools.
Outside of the normal admissions round unplaced children, especially the most vulnerable, must be offered places as quickly as possible.
The Local Authority must ensure that no school is asked to admit a disproportionate number of children who have been previously excluded or who present challenging behaviour.
All admission authorities must participate in FAP.
There is no duty to comply with parental preference.
FAP does not include children in public care (looked after children) or those with full Education, Health and Care Plans naming a school. These children must be admitted (there are some caveats relating to class size legislation).
Admission authorities must admit children when asked to do so

School Admissions Code – Section 3 – (3.14, 3.16 and 3.19)

Section 1 - When will FAP be applied?

FAP does not affect the usual admission processes which apply to all schools and should not be used to circumvent the normal in-year admission process. Under the in-year admission process, where places are available and parents request admission then offers should be made. Parents must also be advised of their appeal rights where places are not available.

FAP will apply predominantly to Lancashire resident children, without a school place who are seeking admission to a Lancashire school and meet one of the prescribed categories. (Paragraph 3.17 of the Code). FAP applies where preferred schools / year groups are already full. Also if the usual in year admission processes are deemed to have failed.

When a pupil moves into Lancashire and makes a request for a school place that is subsequently refused, the admission authority should consider whether the child would be eligible to be placed via the FAP. Where it considers that the child falls, or may fall, into any such category, the admission authority should notify the local authority of this. The local authority should then decide whether the child is to be placed via the FAP. The parents should be notified of this and a school place must be allocated within 20 school days.

Section 2 - Retrospective Admissions

In cases where following the admission of a pupil, information is subsequently received from the previous school which had this information been available at the time of admission the pupil would have been considered under FAP, the PPP representative can request a retrospective FA admission.

The process for such a request needs to be made in writing/email by the PPP ref providing full details of the new information received, evidence of issues which have arisen since the child was admitted to school (within 4 weeks) and the reason why it is felt that this child should be considered under the FAP.

The request will be considered against the FA criteria and a decision communicated to the school.

The pupil must remain on roll at the school and the placement will then be recorded as a Fair Access admission, if appropriate.

Section 3 - Why is FAP needed?

Lancashire secondary schools already work well together and also with the Local Authority's Area Pupil Access Teams in order to manage in year admissions. Pupil Placement Panels operate effectively on a district basis and the vast majority of schools have active representation.

For some vulnerable children there are however occasional refusals to admit or delays in offering places. FAP seeks to ensure that the needs of the child and the school are considered in placing children who are included in the protocol.

FAP is needed therefore:-

To fulfil the legal requirements of the School Standards and Framework Act and the School Admissions Code.
To quickly place vulnerable children who are accepted within the FAP.
To avoid refusals to admit which are unlawful and which create gaps in educational provision. They also often raise tensions between the parties involved.

Section 4 - Key principles

Since 2012 a formal and structured FAP for secondary schools and academies has operated in Lancashire. This has successfully placed hundreds of children including many with records of permanent exclusions and challenging behaviour.

Key Principles:-

FAP arrangements must be fair, equitable and transparent.
FAP must acknowledge and address the needs of children not on a school roll and deal with place requests quickly and sympathetically.
FAP will seek to reduce the time that vulnerable children spend out of school.
FAP will seek to share FAP admissions between schools in an area though there will be occasions where a strict order cannot be applied.
FAP will apply to in year admission requests and not to children already within annual intake processes.
Area Pupil Access Teams will administer and monitor FAP and may make referrals direct to secondary schools or to Pupil Placement Panels depending on the timing of the panel meetings.
Decisions made by Pupil Placement Panels will be acted upon unless there are exceptional circumstances that the panel members were unaware of. This is essential to avoid delays and the unlawful refusal of places.
Lancashire's secondary FAP will apply to all families resident within the County. Those resident in other areas should approach their home local authority for advice. There may be exceptions where the Local Authority or a panel has accepted a referral within its agreed FAP.
Children in care and service families posted into Lancashire will normally be referred via Area Pupil Access Teams. These will usually be considered as discretionary admissions rather than FAP but can be included within any district overview when considering other placements. Admission to full year groups will often be required in these cases.
Parental school preferences and denomination / faith requirements will be noted but these do not have to be taken into account in applying FAP and making referrals for admission.

Section 5 - Which children are included in FAP?

The FAP only applies to pupils without a mainstream school place.

FAPs may only be used to place the following groups of vulnerable and/or hard to place children, where they are having difficulty in securing a school place in-year, and it can be demonstrated that reasonable measures have been taken to secure a school place through the usual In-Year admission procedures.

The categories for FAP are as follows:-

Children either subject to a Child in Need Plan or a Child Protection Plan or having had a Child in Need Plan or Child Protection Plan within 12 months at the point of being referred to the Protocol;
Children living in a refuge or in other relevant accommodation at the point of being referred to the Protocol;
Children from the criminal justice system;
Children in Alternative Provision who need to be reintegrated into mainstream education or who have been permanently excluded but are deemed suitable for mainstream education;
pupils that have Special Educational Needs and are currently receiving additional targeted support within school (including children undergoing statutory assessment) but do not have an EHC Plan;
Children who are carers;
Children who are homeless;
Children in formal kinship care arrangements (as evidenced by a Child Arrangements Order not relating to either birth parent or a Special Guardianship Order);
Children of, or who are, Gypsies, Roma, Travellers, refugees and asylum seekers;
Children who have been refused a school place on the grounds of their challenging behaviour (see below for definition);
Children for whom a place has not been sought due to exceptional circumstances; (it is for the LA to decide whether a child qualifies to be placed via the FAP under this category, based on individual circumstances);
Children who have been out of education for four or more weeks where it can be demonstrated that there are no places available at any school within a reasonable distance from their home;
Previously Looked After children for whom the Local Authority has been unable to promptly secure a school place.

Where a SAO is being considered these pupils may fall under category k therefore, the Fair Access and Pupil Placement Officer will need to take the following into account before identifying a school to be named for the purpose of the SAO.

The nearest school to the child's home address, or the nearest school that has not admitted a School Attendance Order pupil during the academic year, or the last school the pupil was on roll at (within the district).

Section 6 - Will schools be exempted from FAP in any circumstances?

All Lancashire schools must participate in FAP - this is a legal requirement. The only circumstances where referrals will not be made are:

Where the child was previously permanently excluded from a school they will not be referred back to the same establishment.
Where a school is in an Ofsted category. This would normally be where a school has been placed in Special Measures and the length of the exemption would be determined by the panel members.
Where there is a serious recent or ongoing complaint / legal issue with the child or family in relation to a particular school or a member of staff at a particular school.
Where there has been a police investigation of a serious nature involving a pupil or member of staff at a particular school.
Additionally, decisions can be made by panel members to exempt a school or a particular year group within a school because of challenging circumstances such as the behaviour of a cohort.

If the Local Authority is aware that a school has recently taken a referred FAP admission and in the short term a second request appears then the Area Pupil Access Team will inform the parents / carers about the principles of sharing FAP admissions and about other locally available places.

Occasionally, there may be very good reasons why successive FAP requests may require admission to the same school (for example - existing family links or isolated geographical location near to home address).

Section 7 - How will the FAP be administered?

For the majority of secondary in year admission requests families secure places or seek appeals, without the need for consideration of FAP. Area Pupil Access Teams are able to offer advice where this is required.

On receipt of an In-Year application that indicates the pupil may meet criteria for a Fair Access admission, additional information can be requested by the Local Authority to give consideration to the best way forward.

Where additional information has been provided, the purpose of this resource is to inform effective support and provision for admission.

If a case is accepted as a Fair Access admission a referral will be made by the Fair Access and Pupil Placement Officer. This may be direct to a school or to the district pupil placement panel depending on the timing of the referral. A Pupil Placement Panel Referral Form is commended for use to ensure that there is a transparent exchange of comprehensive background information including behavioural and attendance history. Requests will not be unduly delayed pending a panel meeting taking place. Wherever possible, and where background information is available, pupils should not be without a school place for more than 20 school days.

As outlined in the School Admissions Code, the FAP sits outside the other admission processes and therefore

Schools cannot cite oversubscription as a reason not to admit a Fair Access pupil
Fair Access pupils must be given priority for admission above other pupils who may be on a school's waiting list

Where a parent makes an in-year application that meets thresholds for FAP, the parent is entitled to appeal for a preferred school if:-

The preferred school is approached but refuses to admit or
The preferred school is not identified, under the protocol, as the school which should admit the child.

The Area Pupil Access Team will determine whether a mainstream school placement is likely to be successful. Each year, a number of pupils move in to Lancashire or move within Lancashire and are placed directly into a PRU or Alternative Provision as the background information has indicated that the young person would not succeed in a mainstream setting.

Where pupils move into Lancashire shortly after a panel has taken place, initial contact with schools will be with head teachers or a designated member of staff to negotiate a placement. It is hoped that contact with head teachers will be to arrange admission and not to decide whether or not a FAP referral should proceed. FAP does operate outside of normal admission procedures.

The FAP will include the grammar schools where children have previously been assessed suitable for grammar school or who perform at a level which would indicate a grammar school would be well placed to meet their educational needs.

Section 8 – Approaching the identified school

Once a school has been identified by the FA and PP Officer, the officer will contact the school with a formal request to admit the child together with the reasons for the request.

There is an expectation that the school will agree to the request to admit unless any of the criteria in Section 6 are met. In any event, schools should respond in writing within 5 school days to avoid a delay in the process. Where a school is declining the request to admit they must clearly set out their reasons for refusing to offer a place.

Section 9 - The operation of pupil placement panels

Pupil Placement Panels are now in operation across all of Lancashire. It is for the panels to determine how the pupils are distributed within a district and whether to use a quota system. If no agreement can be reached the Local Authority can be asked to try and mediate a solution.

The overriding expectation at panel meetings is for schools to be identified for each FAP child. It is a reasonable expectation however that pupils are only brought to panel with as much background information as is available. Every pupil brought to panel should have an educational destination identified whether this be at a school or the local Pupil Referral Unit.

Criteria for consideration may include:

Parental Preference.
Whose turn is it?
Is the school reasonably accessible by school or public transport?
Has the school already admitted FA pupils in to the particular year group?
Has the school admitted looked after children or children with EHC plans to that particular year group?
Has the school already admitted the agreed number of FA pupils overall?

It is up to individual schools to nominate representatives and ensure attendance. In some districts, the head teachers are the decision makers but in most cases it is a senior leader from school, with pastoral responsibility. Representatives of all schools who attend district pupil placement panel meetings must be empowered to make decisions once a referral has been agreed and take the pupil forward for admission.

If schools choose not to take part in the pupil placement panel or a representative from a school does not attend a panel, FAP referrals will still be made and should be accepted without any second decision making taking place (unless one of the defined exceptions is subsequently identified).

FAP referrals brought to panel should be accompanied with all of the relevant educational history. The expectation is that a behaviour chronology and attendance history will be provided. It is imperative that any previous conduct that might put staff or pupils at risk is also shared.

Within these parameters, it is up to panel members to decide how the panels are chaired, administered and the role of the Pupil Access representative.

Section 10 - What if a school refuses a FAP referral?

If a school refuses to admit a FA pupil then the Area Pupil Access Officer will make every attempt to discuss the request with the head teacher, preferably by telephone but by email if need be. It is always preferable to negotiate an agreed placement.

In some circumstances however, a refusal to admit by a head teacher or school representative will be unlawful. It inevitably results in a vulnerable child being out of education for a protracted period and therefore results in exactly the opposite of what the FAP intends to achieve.

If a resolution cannot be reached then the Local Authority may take the refusal up direct with the Chair of Governors and seek his / her assistance in proceeding with the FAP admission.

Section 6 of the School Standards and Framework Act 1998 confirms that the Local Authority is the admission authority for community and voluntary controlled schools. It states that governing bodies have a duty to implement any decision relating to the admission of pupils which is taken by or on behalf of the admission authority.

For voluntary aided and foundation schools, the Local Authority has powers to legally direct admission in certain circumstances. Prior to this happening there would be liaison with the Governing Body (usually via the chair of governors).

For academies and free schools the Local Authority can request that the Secretary of State intervenes if it is not possible to reach an agreement through consultation. The Secretary of State will usually take advice from the Office of the Schools Adjudicator in deciding to legally direct an academy or free school to admit a child.

The governing body of a maintained school can appeal by referring the case to the Schools Adjudicator within 15 calendar days. Similarly, it is expected that an Academy will agree a start date for a child or set out its reasons for refusal in writing to the local authority within 15 calendar days.

If an Academy has not agreed a start date the local authority can apply for a direction from the Secretary of Stata via the Education Funding Agency.

Section 11 - Reporting

The Area Pupil Access Team will produce an annual report that provides data on the number of permanent exclusions, Fair Access referrals, managed moves, dual registrations and removals from roll to EHE have taken place within each district. The report will indicate the number of placements under Fair Access or managed moves that have been successful.

Section 12 - Pupil Access Team contacts

Thematic Lead for Fair Access

Lucia Brown

Tel: 01524 586417

Email: lucia.brown@lancashire.gov.uk

North

Debbie Greenwood

Tel: 01524 581134

Email: debbie.greenwood@lancashire.gov.uk

South

Nicola Watkinson

Tel: 01772 530874

Email: Nicola.watkinson@lanashire.gov.uk

East

Lauren Till

Email: lauren.till@lancashire.gov.uk

Tel 01254 220690

Further contacts are available via your area education office.

Fair access protocols