Legal Question

Q: I am a disabled parent and wheelchair user. My LA has refused my first choice of primary school for my four year old son on the basis of infant class size. He is currently in nursery at the same school and as the building is wheelchair accessible I can take him to school and participate in activities such as reading time. The school we have been offered isn’t wheelchair accessible which means I could no longer do this. I have appealed and been turned down because I didn’t state any SEND in the admissions application. The admissions process only asked about a child’s SEND and not about the access requirements of parents. I have looked at the admissions guidance and cannot see any reference to disabled parents. What can I do?

What is infant class size prejudice?

Infant class size prejudice relates to a legal duty that requires all infant classes (reception – year 2 inclusive) to have no more than 30 pupils per qualified teacher, except in very limited circumstances. Due to this law, the grounds on which appeals can be successful are more limited and normally have lower chances of success, than a non-infant class size appeal.

What are the limited grounds?

Independent Appeal Panels can only admit a child who has been refused due to infant class size prejudice if:

• the admission arrangements are unlawful
• the admission arrangements were not correctly and impartially applied; and
• the refusal to admit is a decision a reasonable admission authority would not have made in the circumstances of the case.

How does this apply in the current case?

When considering the lawfulness of the admission arrangements the Independent Appeal Panel must take into consideration if the arrangements comply with the Equality Act 2010 and in particular consider any arguments that the arrangements are discriminatory. I would recommend seeking further legal advice for this point to be considered in more detail in your case.
With regards to whether the decision refusing admission to the school is one a reasonable admission authority would have made, it is usually based on the information that was available to the Admission Authority when the admission application was submitted. If the Admission Authority were not aware of your disability at the time you applied, then the Panel would not be able to consider it under that ground for admission at appeal. However, if the school is their own Admission Authority, rather than the Local Authority, you could have grounds to argue they would have had knowledge at the time the application was made, as he is currently attending the school’s nursery. If that is the case, your disability should have been taken into consideration under this ground. However this does not necessarily mean that your son should have been given a place at appeal, because it would still be for the Independent Appeal Panel to decide if, knowing of your disability and the impact it has on taking your son to school and participating in his learning, the decision was unreasonable.

Can the decision be overturned?

There are ways, although limited, to try and overturn the decision of the Independent Appeal Panel and these vary depending on whether you are concerned the decision is unlawful such that there was a procedural error.

If the decision is considered unlawful you may be advised to pursue the matter to the High Court, through a type of court proceedings known as Judicial Review. Ordinarily there is a strict deadline to take this matter to the High Court, within 3 months of the date of the decision informing you that the appeal was unsuccessful. There will also be some initial work that must be completed before trying to take it to Court.

If it is considered that there have been some procedural errors, then you may have grounds to make a complaint to the Local Government Ombudsman or if the school is an Academy School, to the Education Funding Agency. The deadline is not as tight to pursue these as it is with Court action, and you must ordinarily do it within 12 months of the date of knowing of the procedural error.

You should be aware that you cannot pursue both Court action and a complaint to the Local Government Ombudsman/ Education Funding Agency, and in many cases, there may not be grounds to pursue either. Thus I recommend you seek legal advice to determine which of these if any would be recommended in your case.

Should you not be able to overturn the decision I would recommend you liaise with your son’s school as to reasonable adjustments that they can make so you can take him to school and participate in his learning. I recommend you seek legal advice should the school refuse to make such adjustments.

Samantha Hale

Samantha Hale is an Associate Solicitor with Simpson Millar and specialises in Education, Community Care and Public Law.