Ensuring that vulnerable children are allocated a school place (Fair Access Protocol)

Last updated: 23 August 2021


Underpinning legislation - admissions code

Fair Access Protocols – Each local authority must have a Fair Access Protocol, agreed with the majority of schools in its area, which sets out how, outside the normal admissions round, schools in the area will admit their fair share of children with challenging behaviour, children excluded from other schools and children who arrive outside the admissions round who may have difficulty securing a school place. In these circumstances, admission authorities may, if necessary, admit above their PAN. This must include how the local authority will use alternative provision to meet the needs of pupils who are not ready for mainstream schooling.

The operation of Fair Access Protocols is outside the arrangements of co-ordination and is triggered when a parent of an eligible child has not secured a school place under in-year admission procedures, even following the outcome of an appeal.

All admission authorities must participate in the Fair Access Protocol in order to ensure that unplaced children are allocated a school place quickly and that no school takes more than its share of children with challenging behaviour. There is no duty for local authorities or admission authorities to comply with parental preference when allocating places through the Fair Access Protocol.

Where a governing body does not wish to admit a child with challenging behaviour outside the normal admissions round, even though places are available, it must refer the case to the local authority for action under the Fair Access Protocol. This will normally only be appropriate where a school has a particularly high proportion of children with challenging behaviour or previously excluded children. The use of this provision will depend on local circumstances and must be described in the local authority’s Fair Access Protocol. It will not apply to a looked after child or one with a statement of special needs naming the school in question, as these children must be admitted.

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

A Fair Access Protocol must not require a school automatically to take another child with challenging behaviour in the place of a child excluded from the school.

Powers of direction Local authorities have the power through primary legislation to direct other admission authorities for any maintained school to admit a child, with special provision for a looked after child, to the school best suited to his or her needs, even when the school is full. Such action must be taken in the best interests of the child.

Before giving a direction, the local authority must consult the admission authority for the school they propose to direct, giving reasons for the direction. The admission authority then has seven days to inform the local authority if it is willing to admit the child. If it is not, and the local authority decides to issue the direction, it must first inform the admission authority, the governing body (if the governing body is not the admission authority), the head teacher and, if the school is in another local authority area, the maintaining local authority.

The admission authority, or governing body if the local authority is the admission authority, has a further seven days to refer the case to the Schools Adjudicator, if the child concerned has previously been excluded from two schools and it considers that admission of the child would prejudice the provision of efficient education or efficient use of resources at the school.

The Schools Adjudicator may either uphold the direction or, if the local authority that looks after the child agrees, determine that another suitable maintained school in England must admit the child. The Schools Adjudicator’s decision is binding. The Schools Adjudicator may not direct an alternative school to admit a child when the child has already been excluded from that school or when admission would prejudice the provision of efficient education or efficient use of resources.

Where a local authority considers that a particular Academy will best meet the needs of the child, they can ask them to admit that child even when the Academy is full. A consensus will be reached locally in the large majority of cases, but if the Academy disagrees with the local authority’s reasoning and refuses to admit the child, the case can be referred to the Secretary of State. In such cases, the Secretary of State may direct an Academy to admit a looked after child, and can seek advice from the Schools Adjudicator in reaching his decision. In providing such advice, the Schools Adjudicator will consider the case in the same way as for maintained schools.