Appeal advice - sibling link not counted because one child has SEN

[katybell2011]

Hello,
I came across this website while researching about the appeals process. I will try to be brief! but might end up waffling - sorry :)

Our eldest son goes to a very good local CofE voluntary aided school (currently in year 9). He is statemented (he has high funtioning autism) and in all the mainstream classes. We go to church as a family and are on the Anglican electoral roll.
Our second son (yr 6) has not been allocated a place at the same school as his brother because they changed our application from category A (which is having a sibling at the school and on the Church electoral roll) to category B (same but no sibling link). In very fine print in a footnote about last years Planned Admissions Number, the admissions criteria states that a child with a statement of SEN does not give the sibling link. We do not believe that this is clear on the arrangements and all the other mention of "sibling link" sends you to another footnote which (surprisingly) does not mention this criteria at all.
We have handed the initial appeal form in, and are having some help from the Children's Legal Centre (who have never heard about a situation similar to this before), any advice would be really welcome.

This has obviously upset the whole family, son 2 does not understand at all and think the school have made a mistake (we think so too!) he has no idea that his brother is any different (brothers choice) and eldest son now feels that he is not appreciated a full member of the school community. He has represented the school for all their football/rugby/cricket matches and now feels very let down :(
We are keeping positive to our second son about the school he has been allocated a place at - it is not that much further away and it was our 2nd choice and are trying not to let on to the kids how worried we are about this appeal.
Thanks for any advice

[coccyx]

no advice but how bloody unfair

[katybell2011]

Thanks GiddyPickle & coccyx,

The school was named on our eldest son's statement, so he was in effect, first in (according to the school's own admissions arrangements). It is hard to say whether he would have been offered a place without the statement, maybe not as he did not have a sibling (we live 0.62 miles - 998 metres from the school). Although there were 14 appeals that year and all 14 got in on appeal (we 'assume' that this was dealt with in stage one of the appeals process as the year after there were 44 appeals of which 4 were successful)
This appeals process is not for the faint hearted!

[Ingles2]

Wow!
... that seems completely ridiculous. Especially as it seems your ds could have been allocated a space without the statement. If all appeal cases were successful that year, there was obviously "room" iyswim.
I'd keep your chin up Katy, you have an extremely strong case for appeal.
I wish I could offer you proper advice.. but it's just sympathy I'm afraid.
We too are heading for appeal (kent grammar / oversubscription), if I don't have a nervous breakdown first that is!

[katybell2011]

Distance is only considered in a tie-breaker situation at this school (which hardly ever happens and only after points/years on the electoral roll) catchment area is not a priority on the admissions arrangements. The main criteria (category A) is having a sibling at the school AND being on the electoral roll of a local Anglican Church.
It is a massively oversubscribed school, obviously very close to our house and I cannot say for sure whether our eldest son would have been allocated a place without a statement.
It just seems so unfair that our son meets all the criteria for category A, except for the one difference that his brother has a statement for SEN.

[prh47bridge]

That does seem massively unfair.

To start by being negative, I'm afraid the fact that the criteria being unclear is not enough on its own to win an appeal. The question the panel has to ask if they find that the Admissions Code has been breached is whether your son would have been admitted if the school had complied with the code. A case based on the criteria being insufficiently clear should therefore fail - if they had made it clear that they did not give sibling priority to siblings of SEN children your son still wouldn't have got in. Of course, you may get a sympathetic panel who would admit anyway but it would be good to have some better arguments.

Being more positive, I would like to know exactly what this school's published admission criteria and admission arrangements say. If you feel able to tell us the school involved (or PM me if you don't want to put it on a public forum) I will take a look and see if there is anything there that helps your case.

I haven't come across a school trying to do this before. I think you can argue that they are in breach of paragraph 2.16(g) of the Admissions Code. This says that they cannot discriminate against or disadvantage children with special educational needs or disabilities. It seems to me that they are disadvantaging such children in that they are less likely to be joined by their younger siblings. The school would probably argue that they are disadvantaging the younger sibling rather than the older child but I think you can use the fact that it makes your older son feel like he is not a full member of the school community.

[katybell2011]

thank you for your reply prh47bridge,
I will PM you if that's ok with the name of the school, their admissions criteria are published online. I find it very hard to accept (obviously), if that foot note read "a female who obtains a place at... or a child of mixed race who obtains a place at... does not establish a sibling link" I don't think they could get away with that.

[prh47bridge]

I've taken a look at their admission arrangements.

I don't think they can rely on the footnote as that relates to September 2010 admissions. I think they will point to the fact that category A says siblings only count if they enter through the school's own admission arrangements. However, this is not clear. I would certainly argue that they are unjustified in excluding looked after children as described in the footnote as they are admitted through the normal admission arrangements. I would also argue that they are wrong to exclude SEN children as the admission arrangements clearly say (near the top of page 2) that children with a statement will be admitted. This is part of their admission arrangements so, in my view, SEN children count for the purposes of the sibling rule and the school is failing to implement its own admission arrangements correctly.

I would also point to paragraph 2.16(g) of the Admissions Code as per my last post. They are disadvantaging SEN children in that they don't get priority for their younger siblings. So even if their interpretation of their admission criteria is correct (which I don't think it is), they are not complying with the code.

There are no guarantees but I think you've got a good case. If you lose the appeal I would definitely refer this to the LGO.

[admission]

I can understand where the school is coming from, they are saying that a child with a statement naming the school will automatically get a place at the school but that does not mean that this should confir any priority on a younger sibling. If you take the basic admission criteria as it is written from what you have said I suspect that they have correctly applied their admission criteria.

The problem is I think the admission criteria is seriously flawed. As well as 2.16g I would be tempted to quote 2.16a at them which states that admission authorities must not stipulate any conditions that affect the priority given to an application. They are in effect doing that by saying siblings count, Oh except for these siblings. The reality is that once your eldest son started at the school they were a fulltime paid up member of the school community and as such must count as a sibling link, whilst they are at the school. If you like, another analogy would be that if a pupil joins the school part way through the year, then any younger sibling automatically gains the sibling rights that are in the school's admission criteria as soon as the elder sibling starts at the school, they can't say oh you don't count for six months or the rest of the school year.

My concern for you is that this is not an easy concept for either you or the panel. You do have to go to the panel and turned down for the place at appeal before you can realistically go to the LGO to argue that the panel got it wrong. However it is the admission criteria that are in my opinion wrong. If the panel think they are wrong they have to report it to the Schools Adjudicator and actually there is nothing to stop you from doing that now rather than waiting for the appeal.

[katybell2011]

Thank you prh47bridge and admission,
Three weeks ago I'd never heard of the School Admision Code 2010 - now it seems to be my favourite reading!
Aswell as the admissions arrangements being flawed, they seem to condradict themselves. We are really hoping this is something that the school will address itself, but we will want to go to the Schools Adjudicator if they do not. Obviously, at the moment, our priority is to get our son into the same school as his brother - we have a great respect for the school and all the teaching staff. I think this is a unique situation that has not come up before.
Thank you for your PM prh47bridge, ANY advice you can give me about the practicalities of the appeal process would be great. We are hoping to have the stage one of the appeal heard separately from the other appealants (due to the personal information re. our eldest son) We believe that this will be down to the clerk to the panel to decide, do you have any idea if this will be likely? And also, if (IF!) we are successful at stage one in proving the admissions criteria are unlawful, do we get to know then or do we still have to go through stage two? (the appeals are being held over 2 weeks)
Thanks again

[prh47bridge]

Regarding the way the appeal is heard, if they have a number of appeals for the same school it is likely that they will want to do stage 1 for all applicants together as it means the school's representative only has to present their case once and the panel only has to sit through it once. I would suggest that, when asked if you have any questions, you say that you do but they relate specifically to the way your application was processed and involve personal information which you don't want to share with the other appellants. I would expect the chair to say it is ok for you to ask your questions at the start of stage 2. Actually, even if you didn't say that there is a good chance the chair would ask you to delay your questions until the start of stage 2 once you'd started asking them.

The appeal code states that if prejudice is not proven the appeal must end after stage 1 and the appellants must be told that their appeal has been successful. In practise this has never happened at any appeal I have attended and I suspect it is extremely rare. If there is only one appeal to consider the panel will usually move on to stage 2 without stopping to consider whether or not this is necessary. If there are multiple appeals the process stipulated for decision making means the panel can't make decisions on any appeals until they've heard all of them. So if appeals for this school are being held over 2 weeks you won't hear the result until a few days after the last appeal has been heard.

I am not sure how far you are into the process. It sounds like you've got the date for your appeal, in which case you probably have the school's written submission. You should take a good look at that and see if there are any weaknesses that you can attack. It always helps if you can show that the school can admit more children without any problems. You probably don't need that in your case unless there are a lot of other children who lost out on places because of mistakes by the school but I would still take a good look.

At the hearing itself, the clerk will normally come and have a word with you first to explain the process a little and try to put you at your ease. When you go into the room where the appeal is being heard the school's representative and any representative from the LA should come in with you. The chair should introduce the members of the panel and outline the process. The school will then present its case to refuse admission, after which the panel and appellants will get a chance to question the school's representative. If there are multiple appeals being heard together that will be the end of the joint part. In the second part you present your case after which the panel and school can ask you questions. Finally the school will sum up briefly and you will get a chance to do the same.

My advice would be:

• Relax. Easier said than done, I know.
  

• Make sure you have notes of the questions you want to ask the school, the things you want to say in your case and the things you want to say in the summing up. You may need to change what you say as a result of things that emerge during the hearing but having notes will help you to make sure you cover all the points you want.
  

• Make sure you are organised and put in as much preparation as you can.
  

• Make sure you keep the panel focussed on the problems in the school's admission criteria. That is what your case is all about. It is ok to add a few other things, including the reasons you think your son will benefit from going to this school, but make sure that the panel are clear as to the real issues. You don't want them to get bogged down in side issues.
  

I would agree with Admission that it would be a good idea to refer this to the Schools Adjudicator immediately. There is a form on their website you can fill in. They won't tell the school to admit your son but they can rule that the school's admission criteria are contrary to the Admissions Code. If they do that before the appeal it will help your case enormously and may result in the school admitting your son without needing an appeal at all. Even if it is too late for that, a ruling from the Adjudicator could still be useful if the panel reject your appeal. But I hope that won't happen.

Hope this helps. Feel free to ask any further questions and do let us know how you get on.

[Helenagrace]

I haven't come across a school trying to do this before. I think you can argue that they are in breach of paragraph 2.16(g) of the Admissions Code. This says that they cannot discriminate against or disadvantage children with special educational needs or disabilities. It seems to me that they are disadvantaging such children in that they are less likely to be joined by their younger siblings. The school would probably argue that they are disadvantaging the younger sibling rather than the older child but I think you can use the fact that it makes your older son feel like he is not a full member of the school community.


If they are disadvantaging the younger sibling, not the child with the disability, they are still discriminating on the basis of association with a disabled person. Employers definitely can't do that and surely it is good practice for schools to uphold that? Can the school really demonstrate that the older child would not have got a place without a statement?

[bubblecoral]

I can't offer much advice, the experts have already been along to give you lots of advice, but as we are going through an appeal at the moment too, you have my sympathies and I wish you lots of luck!

The only thing I can offer is that you could speak to the Advisory Centre for Education, or ACE, although they may just say the same as the legal centre you ahve already spoken to. Or apparantly each local council has to have someone who works in 'parent partnership' and they should help if you want some help to put together your appeal.

[katybell2011]

I posted this update on a different thread earlier on, fingers crossed as we wait for the decision letter. Thank you again for all your help.

Hi, I'm so glad some of you have had positive outcomes, and feel for those who did not. I really believe that things happen for a reason, even if we don't think it's best at the time (well, that's what I'm telling myself as we wait for the decision letter for our son!)
I posted a while ago here and recieved some great advice, our son was not allocated a place at the same school that his brother goes to as (hidden!) in the schools admission arrangements it says that children who enter the school with a statement do not count as a sibling link
www.mumsnet.com/Talk/secondary/1182442-Appeal-advice-sibling-link-not-counted-because-one-child-has-SEN/AllOnOnePage

We had the stage 1 last Monday, and had lots of questions to ask questioning whether the arrangements were lawfull and complied with the school admission code 2010. We only asked 1 or 2 questions before being brushed off by the Chair of the panel (who turned out to be very nice in the end!). We came away frustrated that we were not given the opportunity to ask all the questions we wanted, but thought "well ok, we can ask them at the start of stage 2". So we turned up two days later for our individual appeal, only to find that one of the panel members had not turned up! They had been missing for 5 hours, the hospitals and police had been contacted as her mobile went staright to voicemail (it turns out she'd got lost, started being sick and her phone had run out of battery). So it was rescheduled for Friday. We were told very soon by the chair that they had already established that they couldn't question the legality of the schools admission arrangements and they just wanted to hear about our son, so that threw us off a bit. I read out a statement about the affect the decision has had on both of our sons, and my H read out a (very strong) letter of support from our priest. We were not asked any questions by the school representative, or one of the panel members who when asked if she wanted to ask us anything replied no, I think they've summed up their case very well, and only 3 by the panel which were
"is your eldest son happy at the school?"
and "when you named this school for your eldest son, did you know that he would get in?"
"is the primary school your son goes to CofE?"

When we answered no, Catholic, the school representative piped up to point out to the panel that there were no Catholic secondary schools in the borough and the nearest would be a long bus ride away and theirs was the only Christian faith school in the area. Also in his summing up, he said something along the lines of "the panel have already said that they can't comment on or make judgements about our admissions arrangements, but thank you for bringing these points to our attention and the school will look into them". So this sounds good??
Anway, they are hearing the last appeals today and then have to deliberate, so we will hopefully hear early next week. Thankyou for all of the advice (even if we didn't get to ask those questions!). The panel and clerk were really nice and did their best to put us at ease.
Good luck to everyone who is still left to hear

[prh47bridge]

If you lose your appeal you should definitely take this to the LGO. The chair of the panel is completely wrong in saying that they cannot question the legality of the school's admission arrangements. Quite the reverse, in fact. The panel is required to consider whether the admission arrangements comply with the law and the Admissions Code and to refer them to the Schools Adjudicator if they do not.

[katybell2011]

Thank you for all of your advice (and sympathy!). We recieved the letter on Friday that our appeal was successful!! Both of our sons are so happy :)
We still think that the admissions arrangements are seriously flawed, so if the school do not address this we will still be considering taking this to the school adjuticators office.
Thanks again, and good luck to all of those who are still waiting to hear.

[prh47bridge]

Excellent news! Well done.

[admission]

Good news and proof that if you have a good case you will win at appeal