In year fair access protocol - October 2023

Why is a fair access protocol (FAP) required?

All local authorities must have in place a fair access protocol under the School Standards and Framework Act 1998 agreed with the majority of schools in its area to ensure that – outside the normal admission round – unplaced children, especially the most vulnerable, are offered a place at a suitable school as quickly as possible.  This includes admitting children to schools that are already full. The fair access protocol is triggered when an eligible child has not secured a place under in-year admission procedures.    

Through the in-year fair access protocol the local authority will ensure that no school, including those with places available, is asked to take a disproportionate number of children who have been excluded from other schools or who are experiencing difficulties due to challenging behaviour[1]. 

Along with devolved high needs funding and responsibility for alternative provision, existing protocols encourage schools to work together in partnership to improve behaviour, reduce exclusions, tackle persistent absence and to ensure children who are hard to place have appropriate provision. 

The county council has established an “alternative provision panel”, it’s remit being to ensure the successful placement of permanent exclusions and those requiring a return to mainstream education. 

This protocol aims to ensure that decisions taken in order to secure school place for “hard to place children” are taken swiftly and based on data/information provided by the schools themselves (see appendix 2). 

Aims of the fair access protocol 

The fair access protocol is designed to: 

• Be fair and transparent.
• Acknowledge the need of young people who are not on the roll of any school to be dealt with quickly and sympathetically.
• Reduce the time that these children spend out of school.
• Ensure that schools admit children with challenging educational needs in a manner which takes account of the proportion of “hard to place” children they have already admitted (including managed moves). 

Who is not covered by the fair access protocol? 

Looked after children and those with an education, health and care plan (EHCP) are not covered by the fair access protocol. It is required that all schools and settings will act without delay when approached to admit a child who is presently looked after children with an EHCP.

The local authority, as a corporate parent, does not tolerate drift and delay where children the authority looks after are without an education placement that is appropriate to their assessed needs.  This includes using their powers of direction in a timely way rather than delay issuing a direction as a result of protracted negotiation[1].  Involvement of carers, social workers and the Virtual School team from the authority to whom the child is looked after is imperative in identifying the most appropriate provision and establishing any required support to aid the transition and induction process.   Education provision should mean a full time place and should be secured within 20 days of the emergency placement and schools judged by Ofsted as ‘good’ or ‘outstanding’ should be prioritised[2] for placement. 

Children with an education, health and care plan are placed in accordance with the SEN code of practice.  All applications that fall within this category will be directed to the SEND Assessment and Planning Service. 

Admission authorities must not refuse to admit a child thought to be potentially disruptive, or likely to exhibit challenging behaviour, on the grounds that the child is first to be assessed for special educational needs. 

Who is covered by the fair access protocol? 

There is some evidence that at times other children not listed below experience difficulties in attaining a school place, there is already an agreed in year procedure for dealing with their applications that should be adhered to in all cases including an independent admission appeals system. Guidance in relation to individual school and admitting authorities’ responsibilities in relation to the in-year application for school process is available on the learning net from the School Admissions Service. 

The children covered by the protocol will be the ones who are vulnerable and for whom it is even more important that they be admitted to a school quickly but must, as a minimum, include the following children of compulsory school age who have difficulty securing a school place: 

a. children who have been out of education for four or more weeks and reasonable measures have been taken to secure a school place through the normal in-year admission procedures; 

b. children for whom a place has not been sought due to exceptional circumstances, this will also include children where elective home education (EHE) is either deemed unsuitable by the LA and/or children whose parents request a return to mainstream education from EHE and require a school place where the in year admissions process has failed to secure a place at a school;

c. children from the criminal justice system;

d. children in alternative provision who need to be reintegrated into mainstream education or who have been permanently excluded or are deemed suitable for mainstream education;

e. children who are homeless;

f. children of or who are Gypsies, Roma, Travellers, refugees and asylum seekers;

g. children who are carers;

h. children with special educational needs, (but without an Education, Health and Care Plan), disabilities or medical conditions;

i. children with a Child in Need Plan or a Child Protection Plan or having had one during the preceding 12 months;

j. children living in a refuge or in other relevant accommodation;

k. children in formal kinship care arrangements;

l. 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 the School Admissions Code; **

m. previously looked after children for whom the local authority has been unable to promptly secure a school place. 

**Referrals may only be made where there is good reason to believe that child may display challenging behaviour and only where school has particularly high proportion of children with challenging behaviour compared to other schools in the area and cannot be used for Looked After Children or children with an EHCP 

For the purposes of the 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. 

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.  

Main principles of the fair access protocol 

• The protocol may only be used to place specific categories of vulnerable children as described, 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 for them through the ordinary in-year admission process.
• All schools agree to take their fair share of children under the fair access protocol and must participate in it.
• No school should be identified to take a disproportionate number of children who have been excluded from previous schools or who exhibit challenging behaviour as defined under this protocol.
• Schools cannot cite oversubscription as a reason for not accepting pupils on to their roll under the protocol. 
• Children considered under this protocol have priority for admission over others on a waiting list or awaiting an admission appeal.
• Schools cannot refuse to admit a child who has been denied a place at that school at appeal if the protocol identifies that school as the one to admit the child.
• There is a general expectation that if a child moves into an area (including year 10 and 11), he/she is entered on the local catchment area school roll unless there are very exceptional reasons as to why this should not be the case.
• It is essential that all children are found places quickly. All parts of the local authority and those of its partners should be prepared to act with urgency where a child is known to be without appropriate education provision. 

Children Returning from Elective Home Education (EHE) 

When returning from EHE and where a child is not offered a place through the in-year admissions process at a school within a reasonable distance of their home address, there is an expectation that the child should be admitted to the roll of their last known school without delay. Unless:

• The previous school is no longer a reasonable distance from the child’s home address and accessible.
• Infant class size prejudice applies at the previous school.*
• Written evidence of exceptional circumstances is submitted to the Fair Access Panel outlining exceptional circumstances.** 

*Where class size legislation applies, all schools within a reasonable distance will be considered in order to make a suitable offer of a school place. Where there are no schools within a reasonable distance the child will be placed at the previous school as a “permitted exception” by the LA. 

**Where there are exceptional circumstances (such as safeguarding concerns supported with written evidence), these should be presented to the Fair Access Panel who will determine whether or not it is in the best interests of the child to return to the previous school. 

Note :Parents have the right to apply for a school place at any school regardless of their previous address or previous schools attended. 

How will the fair access protocol operate? 

The majority of pupils are already admitted through routine admission procedures. If parents approach the local authority for a school place and it appears that the fair access protocol should be applied, then the procedure is set out in the action table included within this document (Appendix 1). 

Each case will be considered on an individual basis and only in exceptional circumstances will it be appropriate to place in an alternative to a school placement, such as a short-stay school (PRU), a local FE college, or a place provided by a voluntary organisation.  However, these pupils are required to be admitted to the mainstream school roll in order to access the alternative provision as agreed through the protocols in place for accessing alternative provision[4]. 

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. 

It is expected that schools will organise a meeting with relevant support staff from SCC or partners to discuss the arrangements for the child’s admission if necessary. 

Fair Access Protocol Panel 

A panel will be convened to meet on a fortnightly basis to discuss and decide upon any “Fair Access” cases that have been referred to the local authority. 

The panel will consist of 

Head of School Admissions and Transport Service

Head of Inclusion and Attendance

Family Practitioner Lead (Education Welfare)

2 x Headteacher Representatives from districts not affected by decision 

The panel will have agreed terms of reference (appendix 4) 

Monitoring and review of the protocol 

The Head of School Admissions Team will monitor the number of children referred under this protocol and provide statistics/reports to schools and others as required. 

In the event that the majority of schools in Staffordshire can no longer support the principles and approach of their local Fair Access Protocol, they should initiate a review by contacting Samantha Nicol, Head of School Admissions Officer samantha.nicol@staffordshire.gov.uk.  The existing Fair Access Protocol will remain binding on all schools in the local area until the point at which a new one is adopted. 

Fair access protocol - a guide for parents

Rules governing directions

[1] 'Culturally abnormal behaviour(s) of such an intensity, frequency or duration that the physical safety of the person or others is likely to be placed in serious jeopardy, or behaviour which is likely to seriously limit use of, or result in the person being denied access to, ordinary community facilities.' (Emerson, 1995)[1].

The Royal College of Psychiatrists' 2007 report Challenging behaviour: a unified approach defined 'challenging behaviour' very similarly as:

'Behaviour of such an intensity, frequency or duration as to threaten the quality of life and/or the physical safety of the individual or others and is likely to lead to responses that are restrictive, aversive or result in exclusion.

[2] DfE Publication, Promoting the education of Looked after Children July 2014

[3] See 2

[4] As a Local Authority we consider that we do not have the capacity in order to appropriately guarantee the appropriateness of alternative provision in relation to individual children, for example ensuring that provision is appropriately quality assured whereas schools through their experience in commissioning AP do have the appropriate skills set and are therefore best placed to carry out this function. Furthermore, the Local Authority does not have the ability to access Element 1 (AWPU) funding for a pupil unless they are placed on a school roll and placing a pupil on a PRU roll would put additional pressure on the high needs block which is there to support the most vulnerable pupils in the county