Fair Access Protocol
|Last updated:||12 April 2021|
Underpinning Legislation – Admissions Code
Fair Access Protocols – Each local authority must have a Fair Access Protocol, agreed with the majority of schools in its area, which sets out how, outside the normal admissions round, schools in the area will admit their fair share of children with challenging behaviour, children excluded from other schools and children who arrive outside the admissions round who may have difficulty securing a school place. In these circumstances, admission authorities may, if necessary, admit above their PAN. This must include how the local authority will use alternative provision to meet the needs of pupils who are not ready for mainstream schooling.
The operation of Fair Access Protocols is outside the arrangements of co-ordination and is triggered when a parent of an eligible child has not secured a school place under in-year admission procedures, even following the outcome of an appeal.
All admission authorities must participate in the Fair Access Protocol in order to ensure that unplaced children are allocated a school place quickly and that no school takes more than its share of children with challenging behaviour. There is no duty for local authorities or admission authorities to comply with parental preference when allocating places through the Fair Access Protocol.
Where a governing body does not wish to admit a child with challenging behaviour outside the normal admissions round, even though places are available, it must refer the case to the local authority for action under the Fair Access Protocol. This will normally only be appropriate where a school has a particularly high proportion of children with challenging behaviour or previously excluded children. The use of this provision will depend on local circumstances and must be described in the local authority’s Fair Access Protocol. It will not apply to a looked after child or one with a statement of special needs naming the school in question, as these children must be admitted.
Admission authorities must not refuse to admit a child thought to be potentially disruptive, or to exhibit challenging behaviour, on the grounds that the child is first to be assessed for special educational needs.
A Fair Access Protocol must not require a school automatically to take another child with challenging behaviour in the place of a child excluded from the school.
Powers of direction Local authorities have the power through primary legislation to direct other admission authorities for any maintained school to admit a child, with special provision for a looked after child, to the school best suited to his or her needs, even when the school is full. Such action must be taken in the best interests of the child.
Before giving a direction, the local authority must consult the admission authority for the school they propose to direct, giving reasons for the direction. The admission authority then has seven days to inform the local authority if it is willing to admit the child. If it is not, and the local authority decides to issue the direction, it must first inform the admission authority, the governing body (if the governing body is not the admission authority), the head teacher and, if the school is in another local authority area, the maintaining local authority.
The admission authority, or governing body if the local authority is the admission authority, has a further seven days to refer the case to the Schools Adjudicator, if the child concerned has previously been excluded from two schools and it considers that admission of the child would prejudice the provision of efficient education or efficient use of resources at the school.
The Schools Adjudicator may either uphold the direction or, if the local authority that looks after the child agrees, determine that another suitable maintained school in England must admit the child. The Schools Adjudicator’s decision is binding. The Schools Adjudicator may not direct an alternative school to admit a child when the child has already been excluded from that school or when admission would prejudice the provision of efficient education or efficient use of resources.
Where a local authority considers that a particular Academy will best meet the needs of the child, they can ask them to admit that child even when the Academy is full. A consensus will be reached locally in the large majority of cases, but if the Academy disagrees with the local authority’s reasoning and refuses to admit the child, the case can be referred to the Secretary of State. In such cases, the Secretary of State may direct an Academy to admit a looked after child, and can seek advice from the Schools Adjudicator in reaching his decision. In providing such advice, the Schools Adjudicator will consider the case in the same way as for maintained schools.
Aims of the Fair Access Protocol
The protocol is designed to:
- Acknowledge the imperative that vulnerable young people, who are not on the roll of any school, must be dealt with quickly and sympathetically in order to minimise the danger of rejection, disaffection and demotivation
- Effectively promote the inclusion of young people within the local school community to ensure an efficient use of resources
- Ensure that all schools and academies, free schools and University Technical Colleges (UTC) take a shared responsibility for the admission of pupils with challenging educational needs with no one school/academy having to take a disproportionate number of pupils
- Provide a rational structure for decision making which is seen as fair, transparent and has the confidence of all schools and academies
In order for the protocol to be successful:
- All schools, academies, free schools and UTCs must take part and agree to abide by the “collective agreement”
- Where the admitting authority is not the LA, the LA will confirm the allocation with the school/academy in advance of the offer being made. This is the case for both In Year allocations and within the Fair Access Protocol.
- The Fair Access Protocol sets out the circumstances within which a pupil can be admitted, and pupils that meet the criteria within the protocol will be admitted in advance of other pupils on the waiting list or awaiting appeal.
- Admission decisions under both the In-year process and Fair Access Protocols should be made without undue delay as all admission authorities bound by the Code have a legal duty to admit pupils as soon as possible. The Admissions Code is quite clear that "applications made outside the normal admissions round must be considered without delay......."
- Wherever possible, decisions on a placement will take account of a pupil’s expressed religious affiliation.
- Where a governing body does not wish to admit a child with challenging behaviour outside the normal admissions round, even though places are available, it must refer the case to the local authority for action under the Fair Access Protocol. This will normally only be appropriate where a school has a particularly high proportion of children with challenging behaviour or previously excluded children. It will not apply to a looked after child or one with a statement of special needs naming the school in question, as these children must be admitted. Children and Young People Included within the Fair Access Protocol This protocol covers strategies for ensuring the admission of 1. Looked-after children (See Section 1) 2. Permanently excluded children (See Section 2) 3. Children who require reintegration into mainstream school, children with no school place and children faced with barriers to education. (See Section 3). This could include children who are currently out of education and require reintegration back to mainstream (for example; - children in the PRU, children who have been absent from school for two months or more; children who have been out of school for medical reasons; children from unsupportive family backgrounds for whom a place has not been sought) Children with no school place (for example:- refugees and asylum seekers; homeless and refuge accommodated children; children who have moved into area after the normal admissions round who have been unable to secure a place through the usual in-year admission process). Children with barriers to education (for example; - children with special educational needs but no statement, children with disabilities, young carers, children who have committed offences, children of traveller and Roma families)
Section 1 – Looked After Children
The Admissions Code requires all schools and academies to give priority of admission to looked-after children. The LA will monitor this through the annual admissions consultation and must challenge any school that does not comply with this requirement. Key Stage 1 – If the preferred school is full, the LA will either admit (VC/Community), direct (VA/F) or request admission (academy) to the nearest catchment school or to the nearest school. Key Stage 2 and 3 – Whilst the LA will always endeavour to place a child in a school where there is a vacancy, parental preference may dictate an admission to a full school, thereby resulting in a school exceeding its admission number. Key Stage 4 - Whilst the LA will always endeavour to place a child in a school where there is a vacancy, parental preference may dictate an admission to a full school, thereby resulting in a school exceeding its admission number. Schools need to be aware that a consideration of curriculum options and continuity is a factor when deciding on the appropriate school.
Section 2 – Permanently Excluded Pupils.
Following a permanent exclusion, the LA must find suitable full-time educational placement with minimum disruption to the education of the pupil by:
- Following the normal process laid down in exclusions guidance.
- Ensuring the implementation of appropriate educational provision at the PRUs
- Referring cases to a Fair Access Board (FAB) which would meet regularly and which would consider the most appropriate placement for the pupil (including alternative provision for those pupils for whom mainstream and/or PRU placement is not appropriate), the reintegration process and ongoing support and intervention. All schools, academies, free schools and UTCs will be invited to the relevant area FAB meeting (North/ South)
Section 3 - Children who require reintegration into mainstream school, children with no school place and children faced with barriers to education
An initial check will be made to ensure that the child has not previously been permanently excluded from their last school in which case their admission will be managed as per (2) above. Where a permanent exclusion does not apply, the application will be managed by the LA according to the in year admission policy. If there is a place available at one of the preferences and/ or at an appropriate non – preferences school, allocation can be made within that process and the allocation agreed with the appropriate admission authority Where the in year admissions process does not immediately identify an appropriate school to approach, the LA will review all locally available places prior to approaching the most appropriate school, requesting that the school admit above the admission number. In this instance, a priority order will be considered:
- Closest catchment school
- Closest school (if not catchment)
- Other catchment school(s) in distance order
- Next nearest non-catchment school At each step if the child’s records include evidence of persistent, disruptive behaviour, admission will not be made to a school in special measures. The LA may refer cases to the FAB meeting where no local school place can be identified for decision. The maximum any school would be asked to admit is one child in 30 of the admission number (i.e. one child per class of intake per academic year) for example with an Admission of 180, the maximum the LA would ask a school to admit up to is 6 extra). If any school is already at, or above, this number (for example, as a result of appeals) then the LA will place the child (with transport, if necessary) at the next nearest school and advise the parent of their right of appeal. Following this process will ensure that where the case falls within the transport policy, transport entitlement will match the allocation.