Fair Access Protocol

1. Introduction

There is a statutory requirement for all Local Authorities to have in place a Fair Access Protocol (FAP) which is agreed by the majority of schools in the authority, and all schools* must participate. The protocol is a mechanism developed by the Local Authority, in partnership with all schools, to contribute towards keeping the city's children safe.

The purpose of the protocol is to describe how the city's vulnerable children who are having difficulty in securing a school place in-year, are allocated a school place as quickly as possible, minimising the time the child is out of school.

The Fair Access Protocol must not be used in place of the usual in-year admissions process. Parents can make an in-year application at any time and is entitled to have that preference met wherever possible, as well as the opportunity to appeal a decision when a place is not offered.

The Protocol must only be used for unplaced children that meet the prescribed categories set out in paragraph 3.17 of the School Admissions Code (also set out on pages 4 and 5 of this document). 

Admission Authorities must admit children when asked to do so in accordance with the Fair Access Protocol. Where an admission authority fails to comply with the FAP, they may be directed to do so.

The Protocol provides a fair and transparent system to ensure that all schools share the collective responsibility of helping the most vulnerable children, by admitting their fair share of children being placed by the FAP.

2. Principles

The successful operation of Leeds City Council's Fair Access Protocol is due to the willingness of all schools to work together with a genuine ethos of collaboration and co-operation to:

• accept collective responsibility for the vulnerable children living in their local community and their right to education
• act with a sense of urgency to minimise a pupil's time out of education – allocating appropriate school places to vulnerable children within 20 school days of them being identified as requiring FAP support
• ensure all schools admit their fair share of unplaced vulnerable children
• work together restoratively in an open and honest way, offering constructive support and challenge to each other

Our schools work together collaboratively, taking into account the needs of the child, the needs of the school, but also the wider Area Inclusion Partnership (AIP) and its commitment to inclusion for all. When securing a place for a child through the agreed Protocol, all schools and pupils are treated in a fair, equitable and consistent manner.

3. Equality Duty

The School Admissions Code outlines that schools are subject to the Public Sector Equality Duty and therefore must have due regard to the need to eliminate discrimination, harassment and victimisation, advance equality of opportunity, and foster good relations in relation to people who share a relevant protected characteristic and people who do not share it.

The protocol is intended to act as a safety net for the most vulnerable who are unable to secure a school place in the normal way. Being eligible for consideration under the Fair Access Protocols is not a legitimate reason to refuse an in-year application. Section 3.24 of the Appeals Code outlines that if an application is refused, the admission authority must present their case for refusal, demonstrating how admission of the child would prejudice the provision of efficient education or efficient use of resources.

4. Exemptions

Leeds City Council has a responsibility to all children living in Leeds (defined by the authority that council tax is paid to) to ensure that they have a reasonable and accessible school place. This Protocol applies only to children resident in Leeds and to Leeds schools.

Admission via the Fair Access Protocol does not apply when considering the admission of a looked after child, a previously looked after child (subject to an Adoption Order, a Special Guardianship Order or a Child Arrangements Order) or a child with an Education, Health and Care Plan naming the school in question, as these children must be admitted. An application for a child currently looked after by a Local Authority must be supported by the Virtual School and a Supplementary Information Form (CLA SIF) should be completed by the Social Worker who holds parental responsibility for the child.

However, in recognition of the potential impact on resources that schools may experience when admitting looked after pupils, the number of children looked after, admitted to the school outside the normal admission round, will be taken into account when considering fair sharing.

5. Waiting lists

The Protocol may require schools to admit pupils above their Published Admission Number (PAN) and ahead of pupils on their waiting list or those awaiting an appeal. Section 2.15 of the School Admissions Code outlines that looked after children, previously looked after children, and those allocated a place at the school in accordance with Fair Access Protocols, must take precedence over those on a waiting list.

Where a child has applied for and been refused a place, the school's waiting list policy still applies, regardless of whether the child secures a place at another school through the fair access protocol. Should a place become available, the application should be reassessed by the admission authority under the in-year process.

6. School decision making

On receipt of any in-year application the school(s) will make a decision on whether they are able to offer a place. Whether or not the child may meet one of the Fair Access categories must not be taken into account when making this decision.

The School Admissions Code (2021), clearly states that all schools must admit every child who has applied for a place, without condition or the use of any oversubscription criteria, unless admitting the child would prejudice the provision of efficient education or the efficient use of resources. Admission authorities must not refuse to admit a child solely because:

1. They have applied later than other applicants
2. They are not of the faith of the school
3. They have followed a different curriculum in their previous school; or
4. Information has not been received from their previous school

There are therefore only two reasons why any in-year application for a school place may be refused:

1. That to admit any further child to the school would cause prejudice to the provision of efficient education or the efficient use of resources in the school, or
2. That the admitting authority has good reason to believe that the child may display challenging behaviour, and the school already has a particularly high proportion of children with challenging behaviour or those who have previously been permanently excluded, when compared to other local schools, and that to admit a further child with challenging behaviour would prejudice the provision of efficient education or the efficient use of resources (3.10 of the School Admissions Code)

Reason 1 is not subjective, meaning the circumstances of the applicant should not influence whether or not prejudice would be caused to the school by admitting another child. It is worth considering that if a child is refused admission and is vulnerable and eligible for admission under the Fair Access Protocol, the case for refusal will need to describe clearly the prejudice that would be caused to the school if the child were admitted, and why this outweighs the vulnerable child's need for a school place, should the applicant appeal the decision.

Reason 2 (3.10 of the Code) is subjective and relates to the circumstances of the child. Meeting one of the Fair Access Categories must not, in itself, be taken to imply that the child will display challenging behaviour. The School Admissions Code defines challenging behaviour as:

"where the behaviour would be unlikely to be responsive to the usual range of interventions to help prevent and address pupil misbehaviour or it is of such severity, frequency, or duration that it is beyond the normal range that schools can tolerate. We would expect this behaviour to significantly interfere with the pupil's/other pupils' education or jeopardise the right of staff and pupils to a safe and orderly environment."

The Code also highlights that "A child with challenging behaviour may also be disabled as defined in the Equality Act 2010. When considering refusing admission on these grounds, admission authorities must consider their duties under that Act. Admission authorities should also consider the effect of the decision of the Upper Tribunal in C & C v The Governing Body of a School, The Secretary of State for Education (First Interested Party) and The National Autistic Society (Second Interested Party) (SEN) [2018] UKUT 269 (AAC) about the implications of the Equality Act 2010 when a pupil exhibits a tendency to physical abuse of other persons as a consequence of a disability."

Schools will need to evidence why they believe the child may present challenging behaviour before refusing admission on these grounds, and can ask the previous school for background information to support this. The AIP may be able to support with this. Any information gathered should be made available for the consideration of the Fair Access Panel.

Please note: Challenging Behaviour (3.10 of the Code) is not a legitimate reason for refusing to admit any child who is seeking a place in Reception or Year 7 at any point during that year.

7. Referral criteria

If the school:

• Refuses the application because to admit another child would cause prejudice to the efficient education and efficient use of resources in the school and
• Has offered the written right of appeal to the applicant and
• Identifies that the application meets one or more Fair Access categories (see categories outlined in 8.0)

The application should be referred to the Local Authority for support with timely admission via the Protocol. Any child refused admission under reason 2 (challenging behaviour) must be referred to the Local Authority for consideration under the Fair Access Protocol (using the Local Authority referral form).

The Local Authority will review all referrals to be considered under the Fair Access Protocol and will ensure applications for 'unplaced' children are considered by the appropriate Fair Access panel(s).

Only 'unplaced' children are eligible for supported admission through the Fair Access Protocol. Unplaced children are those who do not have an offer of a reasonable and accessible school place, including:

• Children who are new to Leeds
• Where a house move within Leeds has resulted in the current school place becoming inaccessible (regardless of AIP boundaries), the in-year transfer application should be made within 6 months of the house move
• Children who are withdrawn from private education/college and EHE and a place at school has been requested
• Applications where the Fair Access Manager and Chair of the Panel agree in advance of the Panel that there are evidenced exceptional circumstances for an application to be presented to the Panel despite the child already being on the roll of an accessible school

An unplaced child must also meet one of the Fair Access categories (a-m below) to be considered for admission through the protocol.

*The Education Act defines reasonable and accessible as: "walking distance" 2 miles in relation to a child who is under the age of 8 and 3 miles in relation to a child who is 8 or over. In each case, distance is measured by the nearest available route.

8. Fair Access categories

An application will only be considered for the allocation of a place under the Fair Access Protocol where they are unplaced, and have been unable to secure a place through the usual in-year admissions process and they require the support of the FA Protocol because they are considered vulnerable.

It is important to recognise that not all children and young people whose application identifies with these categories will have difficulty securing a school place. Many will be admitted successfully through the usual in-year admission process.

Any application referred by a school for admission under Fair Access Protocols will be reviewed by the Admissions Team. If the child has a reasonable and accessible school place they will not be presented for the allocation of a place at Fair Access Panel unless there are evidenced exceptional reasons submitted in advance and agreed by both the Chair and Fair Access Manager.

9. Operation of Fair Access Panels

Leeds City Council, in partnership with the Area Inclusion Partnerships (AIPs), will arrange Fair Access Panel meetings on a regular basis, accommodating school terms and school holidays. These will be planned at least one term in advance with dates shared with schools.

The purpose of the panel meeting is for a child focussed discussion and panel agreement on which school place will be allocated to each vulnerable child – the purpose of the meeting is not to focus on the reasons why each school cannot admit the child.

The information provided to schools in SAM is all the information parents have provided on their application, and if any school referring a pupil for consideration under fair access has provided further information to support their referral, we will then add this to SAM.

AIPs receive funding from the LA to support the Re-inclusion Officer role, and that if schools require support with gathering background information to inform an admission decision, this needs to be agreed locally within the AIP.

All schools are required to identify a representative to attend panels who:

• Will contribute to the solution focussed discussion to identify the school to be allocated for the child
• Is authorised by the school's admission authority to make decisions on accepting children via the protocol
• Will arrange the timely admission of pupils when agreed by the panel

The attendance of the Chair of the Fair Access Panel, a member of the Admissions Team and one Headteacher will make the meeting quorate.

10. Panel decisions

Having considered the details of each case, and the discussion in the panel meeting, the panel will identify which school should admit the pupil. The discussion and allocation of a place at panel will take into account:

• the pupil's best interests
• accessibility and reasonable distance of the schools, taking into account bus routes for secondary aged students
• parental views (based on parental preferences on the application - although there is no duty to comply with parental preference)
• the number of pupils each school has already admitted via the protocol to ensure fair sharing of unplaced vulnerable pupils within the current academic year. The Protocol is required to be in place for those children who are vulnerable and unplaced, with the purpose of securing a place quickly. If a school is able to admit quickly through the usual in-year process, then the child is not eligible for placement via FAP and the Code is clear that FA does not remove the need for schools to follow their usual in year processes. If the school feel that a pupil would be rightly refused admission under the in-year processes, the school does feel that at panel they would offer a place, then this can be discussed with the Fair Access Officer for agreement in advance of panel. Fair sharing will consider only those children who require the operation of the protocol to secure them a place.
• any particular school circumstances and their reasons for seeking to admit or refuse the child

The following guiding principles to the discussions and decisions during the panel will apply:

10.1 School offers a place at panel

Panel to review accessibility and whether this would meet parental preference. Panel to agree whether the offer is appropriate.

10.2 Siblings

Every effort will be made to place the siblings together regardless of AIP area boundaries.

10.3 Returning to Leeds

Where a child has previously been on roll at a Leeds school, wherever possible the panel will first consider a return to the previous school, providing it remains reasonable and accessible from the home address.

10.4 Returning from EHE / College / Private Education

Where a child is returning to mainstream education from Elective Home Education (EHE), College or Private Education and meets one of the Fair Access vulnerable children criteria, wherever possible the panel will consider a return to the school they previously attended, providing it remains reasonable and accessible from the home address. Reintegration support may be available from the AIP.

10.5 Accessibility

Consideration will be given to whether the child can travel independently to school, safe walking routes, availability of dedicated school transport and public bus services.

10.6 Fair Sharing

Panel will consider the number of children already admitted to each school under the Fair Access Protocol to ensure that no school is asked to admit a disproportionate number of children via the protocol.

10.7 Individual school / child circumstances

Each child and school will have particular circumstances which need to be considered by the panel when reaching a decision on which school will admit the child. This may require additional reports to be shared with the panel from previous settings or agencies.

10.8 AIP support

The Area Inclusion Partnership (AIP) may be able to offer support for the reintegration of vulnerable children into schools. Consideration will be given by the panel to the support available / requested.

Multi-agency meetings

In exceptional circumstances it may be necessary to hold a multi-agency meeting before an offer of a school place can be agreed. Where a multi-agency meeting is required, this must be agreed by the Panel and take place in time to ensure a school place is agreed within 20 school days. The AIP are responsible for ensuring the child is accessing an educational provision while a school place is confirmed/sought.

10.10 Not yet ready for mainstream

Where a Fair Access Panel considers that a child is not yet ready for mainstream provision, they will allocate the child to a school roll, where the school can assess and determine whether a local partnership provision is best able to enhance the pupil's readiness to learn and enable their re-integration into a mainstream setting. The school, with support from the AIP, is then responsible for securing appropriate full-time educational provision.

10.11 Permanently excluded pupils

Throughout the period of the permanent exclusion process, the pupil remains on the roll of the excluding school for up to 45 days should the process move through governors meetings, appeals and independent review process. From the 45th day (or before if the exclusion process ends after the governors meeting), the pupil will then have been removed from roll and the family will be supported to apply for a new school place at any school the parents choose. Schools who receive an application must consider it in line with the School Admissions Code.

Where a permanently excluded child fails to secure a place through the normal in-year process, the home area AIP Fair Access panel will consider the application and determine which school will admit the pupil. The AIP will ensure a reintegration plan and appropriate support is in place. The school will also receive the financial adjustment (£4,500) via the Local Authority from the excluding school to support reintegration. The home Local Authority is responsible for providing 6th day provision and travel to that provision for any pupil permanently excluded and this responsibility is fulfilled by the Area Inclusion Parntership.

11. Local Authority as final decision maker

The purpose of any panel meeting is to identify the school place the vulnerable child will be offered, and all schools are required to attend the panel with this objective in mind. In the unlikely circumstance of the Panel being unable to agree an appropriate school place the Local Authority will act as final decision maker and will notify a school that they are required to admit the vulnerable pupil, based on the principles outlined in section 10.

If a school refuses to admit at this stage, the Local Authority will consider pursuing a formal direction in line with the School Admissions Code 2021.

12. Local Authority Powers of Direction

Where a pupil living in Leeds has been refused entry to, or been permanently excluded from, every suitable school within a reasonable distance, the Local Authority will issue a direction to maintained schools or request Secretary of State direction for an Academy.

The home Area Inclusion Partnership holds responsibility to make arrangements for suitable education for the vulnerable pupil while a place is not agreed. If the direction is upheld the cost for this provision will be recharged to the receiving school by the AIP.

The full processes for Direction are outlined in the School Admissions Code. Maintained schools have the right to appeal against the direction to the Office of the School Adjudicator. Academies must follow the process as outlined by the Secretary of State.

The Local Authority will only direct (or request direction) at a school which is a reasonable distance from the pupil's home, and from which the child has not been permanently excluded.

13. Safeguarding

There is a collective responsibility to ensure the safeguarding of all young people and we must work together to protect them and act in their best interests.

Once it has been agreed either in advance of a Panel or at a Fair Access Panel that a child should attend a named school, that school is accountable for the young person and is responsible for securing attendance as quickly as possible. Children should be on roll within 5 school days of a place being agreed.

Where a school determines that a child's whereabouts are unknown, all reasonable enquiries should be made by the school, as outlined in the Attendance and CME guidance. If the whereabouts remain unknown, the child must be referred to the Children Missing Education (CME) Team by the allocated school.

When a school place has been allocated but parent(s) have not taken up the offer within 10 school days, the school should provide the Panel/Local Authority with details of the reasonable enquiries made (including phone calls, emails, letters and home visits to the family) using the School Attendance Service referral form. The Local Authority may pursue a School Attendance Order where necessary and the place at the agreed school remains available to the young person throughout this process.

14. Record Keeping

The AIP keeps an accurate record of each Fair Access Panel meeting to include:

• Panel attendees and apologies
• Cases discussed
• Decisions on each case
• On roll dates for each case
• Follow up actions
• Schools to provide current numbers on roll in each year group and their admission number

This record will be circulated to all members of the Panel within 3 working days of the panel. Any anomalies should be raised with the AIP as soon as possible.

The Local Authority (Admissions Team – Fair Access) holds:

• Maintain a log of all cases identified as requiring admission via Fair Access Protocol
• Background information as provided by schools and AIPs
• Detailed notes on the panel discussion about each vulnerable child
• Data relating to the number of admissions agreed via the Fair Access Protocol

These records will not be widely shared, however will be available upon request by any school who requires the information to make a decision.

15. Fair Access Panel outcome

Where a child is offered a school place, it is the responsibility of the school making the offer to arrange contact with the family without delay. The school must meet with the parent/carer of the young person and agree a start date no later than 5 school days after the Fair Access Panel decision.

In all cases, the Local Authority will relay the outcome of the Fair Access discussion to theparent/carer of the young person as soon as possible, but within 5 calendar days of the decision.

Under regulation 12 of the Education (Pupil Registration) (England) Regulations 2006 as amended, schools are required to notify the Local Authority within 5 days when a pupil's name is added to the admission register at a non-standard transition point. This process for notifying the Local Authority is via the 'pupil movement' e-form to the Admissions Team.

16. Privacy notice to parents

View the School Admissions privacy notice from Leeds City Council.

Protocol review

This protocol will be reviewed in the Summer term 2021/22. In the event that the majority of schools in Leeds can no longer support the principles and approach of this Fair Access Protocol, schools may initiate a review with the local authority, by contacting the Fair Access Manager with details of the schools concerned and the specific elements which are unsupported. The existing Fair Access protocol will remain binding on all schools until the point a new protocol is adopted.