Management Information Sheet

During the summer 2020, the Department for Education ran a consultation on proposed changes to the School Admissions Code and as a result the revised Code is currently laid before Parliament with the view of coming into force on 1 September 2021.

This Management Information Sheet should be read in conjunction with MI Sheet 106/21 issued by the Admissions Manager.

Norfolk's Fair Access Protocol must be revised to take account of the changes introduced by the new Code and in addition it has been updated to take account of changes to processes and principles that have arisen since the introduction of the last update to the Protocol.

It is a requirement of the Code that the Protocol must be consulted upon and developed in partnership with all schools in its area. Once the Protocol has been agreed by the majority of schools in its area, it is a statutory requirement for all admission authorities to participate in it and admit pupils where required. The purpose of this MI sheet is to act as that consultation with all schools.

The draft revised Fair Access Protocol is attached to this MI sheet and the main changes introduced by the new Code are as follows:

1. Paragraph 3.21
   Where it has been agreed that a child will be considered under the Fair Access Protocol, a school place must be allocated for that child within 20 school days.

   This will mean that the number of secondary Fair Access panels will have to increase although if there are no cases for a Panel the meeting can be cancelled. It is proposed that the majority of meetings will continue to take place virtually to reduce travelling time for school staff although one meeting each term will take place in person when permitted to allow for networking and relationship building.

   At primary level we will continue to hold paper ad hoc Fair Access Panels to place individual hard to place children but the response times will be shortened to comply with the new timescale.

2. Paragraph 3.10
   Where an admission authority receives an in-year application for a year group that is not the normal point of entry and it does not wish to admit the child because it has good reason to believe that the child may display challenging behaviour, it may refuse admission and refer the child to the Fair Access Protocol.

   Paragraph 3.11
   An admission authority should only rely on the provision in paragraph 3.10 if it has a particularly high proportion of either children with challenging behaviour or previously permanently excluded pupils on roll compared to other local schools and it considers that admitting another child with challenging behaviour would prejudice the provision of efficient education or the efficient use of resources.

   These paragraphs replace paragraph 3.12 of the old Code and now means that schools will be required to provide evidence to the Local Authority of both the challenging behaviour of the child and the high proportion of children with challenging behaviour or previously permanently excluded pupils before a refusal on these grounds can be accepted. It will expected that the school will have engaged with the Inclusion Team on such issues.

   The new Code introduces the following definition of challenging behaviour which schools will have to evidence for a refusal to be accepted.

   "For the purposes of this Code, behaviour can be described as challenging where it 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."

3. In making a decision to refuse admission under paragraph 3.10 schools will now be specifically required to consider a child's behaviour in the context of any SEND needs as follows:

   "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."

4. The new Code introduces a definitive list of children who can be placed using the Protocol:

   Paragraph 3.17
   Fair Access Protocols may only be used to place the following groups of vulnerable and/or hard to place children, where they are having difficulty in securing a school place in-year, and it can be demonstrated that reasonable measures have been taken to secure a place through the usual in-year admission procedures:

   1. children either subject to a Child in Need Plan or a Child Protection Plan or having had a Child in Need Plan or a Child Protection Plan within 12 months at the point of being referred to the Protocol;
   2. children living in a refuge or in other Relevant Accommodation at the point of being referred to the Protocol;
   3. children from the criminal justice system;
   4. children in alternative provision who need to be reintegrated into mainstream education or who have been permanently excluded but are deemed suitable for mainstream education;
   5. children with special educational needs (but without an Education, Health and Care plan), disabilities or medical conditions;
   6. children who are carers;
   7. children who are homeless;
   8. children in formal kinship care arrangements;
   9. children of, or who are, Gypsies, Roma, Travellers, refugees, and asylum seekers;
   10. children who have been refused a school place on the grounds of their challenging behaviour and referred to the Protocol in accordance with paragraph 3.10 of this Code;
   11. children for whom a place has not been sought due to exceptional circumstances;
   12. children who have been out of education for four or more weeks where it can be demonstrated that there are no places available at any school within a reasonable distance of their home. This does not include circumstances where a suitable place has been offered to a child and this has not been accepted; and
   13. previously looked after children for whom the local authority has been unable to promptly secure a school place.

   However the Code provides for local authorities to decide whether a child qualifies to be placed via the Protocol on this basis, based on the circumstances of the case and the revised Protocol includes examples of categories of children that the local authority believe should be included in the categories above.

5. The new Code now expressly permits schools to share information on behaviour in order to make decisions whether to refuse under paragraph 3.10. Schools were previously prohibited from taking into account information on behaviour in making admission decisions which clearly conflicted with the ability to refuse. This will only permit the sharing of information on behaviour as using information on attendance or SEND is still prohibited in making admission decisions.

6. 3.22 In the event that the majority of schools in an area can no longer support the principles and approach of their local Fair Access Protocol, they should initiate a review with the Local Authority. There should be a clear process for how such a review can be initiated within each Fair Access Protocol.

In Norfolk, secondary schools can approach the Local Authority to review the Protocol through the relevant Fair Access Panel. At primary level schools can raise concerns about the Fair Access Protocol through their academy trust or directly with the Fair Access Team.

Any school that wishes to respond to this consultation should do so by sending an email to the Fair Access mailbox at cs.fairaccessteam@norfolk.gov.uk by Wednesday 14 July. Although all comments will be considered the Local Authority cannot change any of the requirements set out in the School Admissions Code as they are statutory.