Referrals to Fair Access under paragraph 3.10 of the School Admissions Code 2021
Where an admission authority receives an in-year application for a year group 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 Local Authority Secondary Fair Access Board or Local Authority Primary Fair Access Board.
A school may only refuse an in-year applicant admission on grounds of challenging behaviour 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.
In this context, the School Admissions Code 2021 defines challenging behaviour as follows: “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.”
The DfE does not consider the following reasons as valid grounds for considering that a child may display challenging behaviour:
poor attendance at a previous school
a defined number of suspensions, without consideration of the grounds on which these suspensions were made.
special educational needs; or having a disability.
If a school refuses admission to an in-year applicant Buckinghamshire Fair Access Board will consider referrals of those vulnerable students (as identified in the categories set out on Page 4 of this document). Referrals of this kind will normally only be appropriate and will only be accepted to be referred to the Fair Access Board, if the approached school can provide evidence that it has a particularly high proportion of children with challenging behaviour or of previously excluded children.
The Admissions and Transport Team and Education Entitlement Team will review the referral and decide whether the application meets the requirements of the Admissions Code.
Where the determination is that the school in question should admit the child, then the Local Authority will request that the offer letter should be issued.
Where the school does not do so, the Local Authority will where appropriate use its powers of direction. For community and voluntary controlled schools, the Local Authority as the admission authority will issue an offer letter.
If it is accepted that the child should not be admitted to the requested school the Fair Access Board will identify an alternative placement which will normally be another mainstream school.
If a place has been refused on grounds of the child’s challenging behaviour the parent will have a right of appeal to an independent admission appeal panel. The appeal process will take place within the timescales set out in the School Admissions Appeal Code.
The School Admissions Code 2021 specifically states that Children Looked After (CLA), previously looked after children and those with an EHCP naming the school, must not be refused admission on grounds of challenging behaviour: “The provision in paragraph 3.10 cannot be used to refuse admission to looked after children, previously looked after children; and children who have Education, Health and Care Plans naming the school in question.”
In addition, the School Admissions Code 2021 is explicit that it is simply unlawful to refuse a child a school place on the grounds that they should first be assessed for special educational needs.