Investigation: Fair access? Hundreds of pupils shut out

Hundreds of pupils are failing to secure school places after being turned away by schools during in-year admissions – with others having to wait up to ten and a half months for a place.

An investigation by Schools Week into Fair Access Protocols (FAPs) has revealed a stark postcode lottery in access to school places for pupils.

The purpose of the Fair Access Protocols, as outlined by the Office of the Schools Adjudicator, is to “make sure that, outside of the normal admissions rounds, unplaced children, particularly the most vulnerable, are offered a place at a suitable school as quickly as possible”.

Under the protocols, panels are convened of headteachers and council representatives to find places for children. Most commonly this is for pupils who have moved to the area mid-year or been excluded from schools. It also covers children from the criminal justice system and children of travellers, refugees and asylum seekers.

Figures reveal postcode lottery

Of the 104 English councils that responded to Schools Week’s freedom of information request on FAPs, 41 saw a rise in cases this academic year compared to 2017-18.

Although overall numbers seem to be falling, at least 15,237 cases have been heard under FAPs in England so far during this academic year. That compares to 17,948 last year, 16,651 in 2016-17, and 16,111 in 2015-16.

In some cases it is purely down to reluctance to comply

But the figures vary dramatically across regions.

Leeds City Council had the highest number of FAP cases in each of the last four years – 1,966 cases this year, up from 1,631 last year.

Oldham Council had the second largest number, with 737 this year, compared to 817 last year. A spokesperson for the council said the cases were new arrivals to the borough, those returning to education after extended leave and a “transient population”.

“Until recently we also included international new arrivals in the local criteria, which may have contributed to the increase of figures compared to national levels,” the spokesperson added.

Despite the rises in some areas, the majority of councils said they had found school places for all children.

However, there were some noticeable exceptions. In the most recent academic year, Sandwell Council failed to secure places for 134 children. In 2017-18 the figure was just 60.

A Sandwell Council spokesperson claimed every child is eventually found a place, but sometimes may have to go through two or three fair access panels until a placement is secured.

Panels sit every three weeks in the secondary sector and six weeks in the primary.

Joyce Underhill, Sandwell Council’s cabinet member for best start in life, said that the area has seen a “significant increase” in the birth rate which has “put increasing pressure” on primary schools.

Walsall Council did not hold records for this academic year, but for 2017-18, 44 children failed to secure a school place after a fair access panel referral, up from 66 in the previous year.

A council spokesperson confirmed that its fair access policy is under review.

Meanwhile, 43 youngsters in Swindon failed to secure places last year. In Waltham Forest, 24 children failed to get a place this year, however a council spokesperson said “at no point is a child without an educational placement”, as they would remain at the referring school or alternative provision.

Overall, 249 youngsters failed to secure a school place after a FAP referral last year, up from 158 in 2015-16.

Accountability makes people act in ways they wouldn’t do otherwise… the lack of resources and the lack of finances is making things worse

John Cosgrove, a primary school headteacher from Reading, said the FAP system relies heavily on the “goodwill” of teachers and schools. “If you are a school struggling on ‘requires improvement’ or on the cusp of being ‘good’ and somebody says to you ‘we’d like you to take this child, they’ve been out of class for two years’ and you think ‘their progress measures are not going to do me any favours, their achievement is not going to enhance my statistics’, then you might pause.

“I’m not saying that’s unethical, or that heads are wrong to do things like this – I think that the accountability makes people act in ways they wouldn’t do otherwise. I think the lack of resources and the lack of finances is making things worse.”

Councils flag concerns about refusals

The responsibility to find a school place for a child falls to the local authority. But both maintained schools and academies are required to abide by FAPs.

Should an academy refuse, the local authority can appeal to the secretary of state to intervene. For maintained schools, the council can appeal to the Office of the Schools Adjudicator.

The Department for Education does not have a central record of how many requests it receives from councils.

When asked for the number in a freedom of information request, the DfE said the information is not held separately and instead is part of a “broad category of complaints”, which must be accessed individually.

East Sussex Council, in response to our FOI, said it had encountered “some challenge” over compliance “largely from academies”.

“In some cases this is due to school staff being unaware of their legal responsibilities in this area but in others (particularly certain academy chains) this cannot be said and it is purely down to reluctance to comply.”

Councils also cited funding concerns within schools as reasons why some were reluctant to accept in-year admissions via FAP.

The OSA reported that about one-third of all local authorities reported directing their schools to take on a pupil, or asking the government to intervene for academies, during the 2017-18 financial year.

But the overall number of directions still seems small. The OSA reported there were just 84 directions last year.

Youngsters waiting months for places

The average time it took from a pupil being referred to a FAP and being placed in a school ranged from four days, at Hampshire Council, to ten-and-a-half months in Suffolk.

However, just a small number of councils were able to provide this information.

A spokesperson for Suffolk council said the wait was down to the FAP decision being received just before the summer holidays, which meant that it was postponed until the next panel meeting in autumn.

The appeal then sat with the government for more than four months, the spokesperson added.

Admin in local authorities is poor at the best of times

Another referral took the DfE over three months to act, the spokesperson said, adding the academy also took three months to take the pupil in after receiving a minded-to-direct letter from the government.

One child had to wait eight months for a place in Windsor and Maidenhead in 2016-17, and both Hillingdon and Coventry councils reported waits of up to six months.

A spokesperson for Coventry council said delays were caused by families moving to the area mid-year with children who were in different year groups but who wanted to attend the same school as their sibling.

As some schools were full, parents kept their children out of school – even though a place had been found – in the hope of spaces coming up at their preferred school. The spokesperson added: “We work with these families to make sure they understand that this is unacceptable and place their children in a school.”

Laura Berman, a partner at Stone King who specialises in education law, said as councils write their own protocols, some do not have a built-in review or appeals process, which can really impact the timeframe.

“Admin in local authorities is poor at the best of times,” Berman added. “It’s not a criticism, I’m sure their resources have been cut and they are under a lot of pressure and their departments are dwindling.”

Government pledges action

Geographical inequalities in in-year admissions is on the government’s radar. Last month the DfE stated it would “improve the clarity, timeliness and transparency of the in-year admissions process, and strengthen the Fair Access Protocols, ensuring this can be used to admit children who currently need a social worker”.

However, no further details on how this will be achieved have yet been released.

A Department for Education spokesperson said they “recognise that there are challenges around ensuring in-year admissions and Fair Access Protocols work effectively for everyone”.

They said a consultation on the proposed changes will launch in early autumn.

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  1. The Academies Commission warned in 2013 that there would likely be a growth in the number of hard-to-place children because LAs couldn’t direct academies to take such children.
    The Government ignored the Academy Commission’s findings. It was as if it had never been set up.

    • Mark Watson

      I know you’d like this to be all about academies but I think you’ve taken a bit of a leap there without a lot of support.

      The largest number of cases were in Leeds and Oldham, not areas where academisation is particularly widespread. Looking at the numbers, out of the 104 councils that this article relates to, Leeds on its own represents 13% of the total number of cases. That’s a phenomenal outlier, which probably means there is something specific to Leeds that needs looking into. [Oldham represents 5% of the cases, which means on average each of the other councils represent 0.8%.]

      There’s also clearly some political angle being brought to play. A Freedom of Information request should result in facts, figures and documents being disclosed. It should not result in public bodies giving highly subjective opinions about what they think about other bodies – that’s got nothing to do with the FOIA.

      The information that’s missing from this discussion, as I see it, is that where children are being turned away are the relevant schools at or under capacity? The example from Coventry seems to fall into this category. Not accepting new pupils because there is no space, and accepting them would impact on the other pupils, is a different scenario to not accepting them because the school doesn’t think they’ll help their rankings.

      • A Brown

        In my area, the children who are being turned away are the expensive ones who need services adapting for them. This makes economic sense because the school will lose £6000 pa by taking a child with SEND. I think that’s clear in the answer from the head teacher, where he doesn’t see it as being unethical or wrong to refuse to take certain children.

        I do know that schools are legally required to take children with EHCP’s, but nothing happens to them if they refuse to do so, even if they cite financial reasons (ie can’t meet that child’s needs without diverting funding from other children.)

        LA’s have no incentive to push schools because a child in school will need extra funding but a child at home waiting for a place doesn’t. This means that Fair Access Protocols and the SEN Code of Practice could be replaced by Twinkle Twinkle Little Star for all the good they do in practice. The good areas would do it anyway, the bad areas just ignore them because there are no consequences for doing so.

        • Mark Watson

          Good points.
          The thing I take away is that a head has to consider all the pupils in their school. In this time of tightened budgets (aka not enough funding) if taking a child with SEND would take £6,000 out of the school budget then you could argue it’s the right decision not to take the child as that decision would negatively impact all the other pupils.
          Of course we all know it’s not the right decision, but heads must be in an invidious no-win situation in every such case. Surely we must get to the point where the funding attached to a child is sufficient to enable the right resources to be provided.
          A lot easier in theory I guess.

          • A Brown

            What do you suggest happens to those children and young people in the mean time? It seems to me that everyone has decided that they’re someone else’s problem and they’re not so much falling through the cracks as being shoved through them and to hell with what it does to them and their families.

          • Mark Watson

            Does it, as so many things do, come down to money?
            Despite what many people on here seem to think, my experience is that people within the education sector want to do the right thing by every child but often are prevented from doing so by financial reality.
            If taking a child with SEN means a £6,000 loss from the budget, then if the child is properly funded that ‘problem’ goes away.
            So I’m afraid it’s probably another cliched call for more funding for the education sector.

        • Children and Families Act 2014 ‘The governing body, proprietor or principal of the school or other institution must admit the child or young person for whom the plan is maintained’. In other words, if a school is named on the plan, the school must admit the child.
          However, parents must get the LA to commit to any extra funding first. LAs have been fighting cases and wasting money especially when most of the cases have been found in parents’ favour.

          • A Brown

            True, but LA’s must also ‘take account’ of the school’s views. In practice, there is a fair amount of illegal horse trading going on between LA’s and schools.

            Just as importantly, what parent wants to force a school that clearly does not want their child to take them? How can they believe that their child will be safe and valued as part of the school community when they’ve been told that that school can’t (or doesn’t want) to meet their child’s needs?

            I don’t see how any parent can be blamed for saying ‘right, I want specialist provision’ after schools have told them that they can’t meet a child’s needs and they’ll be better of somewhere else. This ‘anywhere but here’ mentality is a cause of the high cost of out of area placements and transport which is a big chunk of the SEND budget so it’s yet another case where accountancy has led to perverse incentives not to be inclusive.

  2. Paul Riley

    I would ask that you are secure in your assertions before posting them online as fact.

    Sandwell Council may have a Primary FAP every six weeks and a Secondary every three. I happen to know that Liverpool Council hold Secondary FAP once a week, Primary every other week.

    Such an omission makes me wonder how much else in this article is incorrect.

    Each LA must have a Fair Access Protocol but the running of this is down to each LA.

  3. I am in the Suffolk area and my son has not had a school place since the end of year 7. He has just began year 8 this September. He has only received 3 hours per week tutoring which has been provided via the local secondary school.