Updated In Year Fair Access Protocol following new Admissions Code

As a result of these changes, KCC was required to update the local Protocol to ensure that the process remained on a firm legal footing. The DfE’s summary of changes included:

• Making the purpose of Fair Access Protocols clearer;
• Introducing timescales for placement decisions;
• Ensuring Fair Access Protocols are only used to support the most vulnerable children (by provision of a definitive list of pupils who can be referred to IYFAP);
• Clarifying the provisions relating to the use of Fair Access Protocols for children with challenging behaviour.

Schools can find a more detailed overview of the changes in our previously published Admissions Code Summary (PDF, 201.4 KB), which includes links to updated DfE Fair Access Protocol guidance.

The School Admissions Code requires Local Authorities to agree a Fair Access Protocol in conjunction with its schools to support mainstream hard to place children who are otherwise unable to access education. The previous Fair Access Protocol was well established and strongly supported by Kent schools. We are fortunate that referral rates remain low as a result of the local inclusive practices which ensure that most pupils secure an appropriate education before its application is required. I would like to thank schools for their ongoing efforts in this area.

Local Authorities are required to secure agreement from the majority of schools before a new Fair Access Protocol can be implemented. Fair Access made contact with schools last year to secure this agreement and this Protocol is now active. Please find the Protocol and associated guidance.

During the consultation phase, KCC received a number of queries from schools in relation to the new Code’s impact on local agreements for managing pupils returning to school from Elective Home Education. In the 2018-21 IYFA protocol, paragraph 5.11 stated:

Where a child / young person has been removed from school for elective home education and then wants or is required to return to school, that child /young person will normally be expected to be admitted to their original school unless there are compelling reasons why that would not be possible or appropriate. In those cases, the home school must take the children and young people back onto its roll and negotiate a managed move. The managed move process should not delay the start date unnecessarily.

The original intention of this statement was to ensure that a child was not left without a school if they moved to EHE, later wished to return to mainstream schooling, but found that all local schools were full. In that event, this aspect of the protocol would ensure that a child could return to school without delay. This provision will remain expected practice when applying the IYFA protocol in cases where a parent either wants their child to return to their original school or where there are no places available in other local schools. Corresponding wording can be found in the operational guidance for the Protocol, in 14.1:

Where a child or young person has been removed from school for elective home education and is required to return to school as the education has been deemed unsuitable by a KCC EHE Officer, that child or young person will be expected to be admitted to their previous school where a parent has failed to make alternative arrangements, unless there are compelling reasons why that would not be possible or appropriate.

For understandable reasons, as practice has evolved this provision has developed into an expectation in some districts that any child who returns from EHE goes back on to the roll of their original school in all circumstances. Changes to the Code aimed at ensuring there is no delay in children returning to school has made the legal position absolutely clear: if a family apply for a school place to a school which is below its capacity, that child must be offered that place without delay. This ensures parity of offer between those pupils returning from home education and any other In Year application.

Thus it is not possible for KCC to support, nor for district inclusion panels to practise, the routine return of children to their original school when returning from EHE. Parents who are electing or who have been directed to return to mainstream from EHE may be asked if they wish to return to the original school, but they cannot be obliged to do so if they wish to apply for a place at another school. If that application is to a school which has places available, that child should be admitted without delay. Children who are returning from EHE should not be routinely considered at IYFA panel meetings; unless there are other factors at play, a return from EHE does not meet the criteria for panel consideration. This also means that parents cannot leverage the IYFA panel system alongside a short period of home education to secure a place at an alternative full school of their preference.

It is recognised that this legal requirement could present a considerable challenge for those schools who have spaces. However, we cannot have practice within Kent which is openly in conflict with the legislation. As a result, it is going to be more important than ever that schools maintain their strong commitment to discouraging inappropriate use of EHE, that each school’s advice to parents is to not move to EHE in circumstances which are not in the child’s best interests, and that this is clearly recorded by the school in written communication with parents.

KCC will continue to actively monitor the Protocol as this clarifications are implemented to ensure that current safeguards remain effective.

Craig Chapman
Head of Fair Access