Fair Access Protocol

This page provides information on access to education through a Fair Access Protocol, how and when it can be triggered, and the process for doing so.

What is a Fair Access Protocol?

Fair Access Protocols ensure that all schools in an area take a fair and balanced approach when admitting vulnerable children, including those whose behaviour has been challenging. All schools (including Academies) must agree and participate in the Fair Access Protocol and will be expected to admit children above their published admissions number if the school is already full.

Every local area is required to have a Fair Access Protocol in place which ensures that access to education is secured quickly for children who find themselves without a place outside the normal admissions round.

Therefore, the purpose of Fair Access Protocols is to ensure that – outside the normal admissions round – unplaced children, especially the most vulnerable, are found and offered a place quickly so that the amount of time any child is out of school is kept to a minimum.

In agreeing a Fair Access Protocol, the Local Authority must ensure that no school – including those with available places – is asked to take a disproportionate number of children who have been excluded from other schools, or who have challenging behaviour. The Protocol must include how the Local Authority will use provision to ensure that the needs of pupils who are not ready for mainstream schooling are met.

Where can I find the Fair Access Protocol?

The School Admissions Code requires every Local Authority to have a Fair Access Protocol in place, developed in partnership with local schools. It is for the participating schools to ensure that the local Protocol works for them and is reviewed as required with the local authority.

How that Protocol operates, the area it covers and how decisions are reached about where best to place a child is all a matter for local determination.

The government has issued  non-statutory guidance on Fair Access Protocols. This document sets out some principles to clarify the expectations on all parties to ensure Fair Access Protocols operate effectively at a local level.

When is a Fair Access Protocol used?

All admission authorities must participate in the Fair Access Protocol in order to ensure that unplaced children are allocated a school place quickly.

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 is important to note that this will not apply to a looked after child, a previously looked after child or a child with a statement of special educational needs or Education, Health and Care Plan naming the school in question, as these children must be admitted.

Under the School Admissions Code, the operation of Fair Access Protocols is triggered when a parent of an eligible child has not secured a school place under in-year admission procedures.

Children included in the Fair Access Protocol

The list of children included in a Fair Access Protocol is to be agreed with the majority of schools in the area but may only include the following children of compulsory school age who have difficulty securing a school place:

• 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;
• children living in a refuge or in other Relevant Accommodation at the point of being referred to the Protocol;
• children from the criminal justice system;
• 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;
• children with special educational needs (but without an Education, Health and Care plan), disabilities or medical conditions;
• children who are carers;
• children who are homeless;
• children in formal kinship care arrangements;
• children of, or who are, Gypsies, Roma, Travellers, refugees, and asylum seekers;
• children who have been refused a school place on the grounds of their challenging behaviour
• children for whom a place has not been sought due to exceptional circumstances;
• 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
• previously looked after children for whom the Local Authority has been unable to promptly secure a school place.

Principles of the Fair Access Protocol

• Every Local Authority must have a Fair Access Protocol in which all schools (including Academies) must participate.
• Schools (including Academies) should work together collaboratively, taking into account the needs of the child and those of the school. There is no duty to comply with parental preference when allocating places through the Protocol but it is expected that the wishes and feelings of the parents are taken into account.
• When seeking to place a child under a Protocol, all schools should be treated in a fair, equitable and consistent manner.
• Fair Access Protocols should not be used as a means to circumvent the normal in-year admissions process. A parent can apply for a place as an in-year admission at any point and is entitled to appeal when a place is not offered.
• The Protocol should establish the education provision a child will receive whilst discussions to identify a school place are ongoing.
• In the event that the majority of schools in an area can no longer support the principles and approach of the local Protocol, all the school head teachers should initiate a review with the Local Authority. The existing Protocol however remains binding on all schools up until the point at which a new one is adopted.
• Eligibility for the Fair Access Protocol does not limit a parent’s right to make an in-year application to any school for their child. Admission authorities must process these applications in accordance with their usual in-year admission procedures. They must not refuse to admit such children on the basis that they may be eligible to be placed via the Fair Access Protocol. The parent will continue to have the right of appeal for any place they have been refused, even if the child has been offered a school place via the Fair Access Protocol.

How long will it take for my child to be allocated a school place?

It is expected that all parties will act with a sense of urgency to identify a school place for any child who has had difficulty securing one or who falls under the Fair Access Protocol.

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.

All schools (including Academies) are expected to respond to requests by Local Authorities to admit a child under Fair Access Protocols within seven calendar days.

Once they have been allocated a school place via the Fair Access Protocol, arrangements should be made for the child to start at the school as soon as possible.

The school’s admission authority must offer a place to the child if they are directed to do so under the Fair Access Protocol.

A Local Authority has the power to direct the governing body of a Local Authority maintained school for which they are not the admission authority to admit a child in their area even when the school is full.

Before deciding to give a direction, the Local Authority must consult the governing body of the school, the parent and the child if they are over compulsory school age.

The governing body can appeal being required to offer a specific child a place under the Fair Access Protocol by referring the case to the Schools Adjudicator within 15 days of being asked to offer the place. If it does this, the governing body must tell the Local Authority. The Local Authority must not make a direction until the 15 days have passed and the case has not been referred.

If the case is referred then the School Adjudicator has the power to make a legally binding decision either to uphold the direction, determine that another maintained school must admit the child or decide not to issue a direction.

It is expected that an Academy will agree a starting date for the child or set out its reasons for refusal in writing to the Local Authority within 15 calendar days (providing contact details to cover any approaching bank holiday or holiday periods).

Where a Local Authority considers that an Academy will best meet the needs of any child, it can ask the Academy to admit that child but has no power to direct it to do so. Usually the Local Authority and Academy will work together to come to agreement about offering the child a place.

If the Academy refuses to offer a place to the child, the Local Authority can ask the Secretary of State to intervene. The Secretary of State has the power under an Academy’s Funding Agreement to direct the Academy to admit a child and can seek advice from the Schools Adjudicator in reaching a decision.

How do Local Authorities request that the Secretary of State direct an Academy to admit a child?

Local Authorities and Academies are expected to mediate between themselves before a request is made to the Secretary of State to direct an Academy to admit a child. Where a resolution cannot be found, it is the responsibility of the Local Authority and the Academy to document the case for and against admission.

When reviewing the case, the Education Funding Agency will act on behalf of the Secretary of State to consider whether due process has been followed in applying the provisions of the Fair Access Protocol.

Local Authorities should use the Academy admission direction request form for the Education Funding Agency (acting on behalf of the Secretary of State) to consider a request to direct admission to an Academy.

The Local Authority must provide evidence demonstrating that the Fair Access Protocol has been applied in a fair and appropriate manner, the Academy’s reasons for refusal and the Local Authority’s response. The Local Authority should send the information to the Education and Skills Funding Agency.

On receipt of a request to direct, the Education and Skills Funding Agency will inform the school that it has received a request for a direction. The letter will request that the Academy provide any evidence other than that already received that the process has not been properly applied within seven calendar days.

What will the Secretary of State consider when making a direction?

Where the Secretary of State is asked to consider a direction, they will make that decision on the basis of the papers provided, taking into account:

• whether the local Fair Access Protocol has been applied appropriately;
• the arguments of the Academy and Local Authority, whether the authority has considered the arguments for refusal and why it still considers the Academy to be the appropriate provision for the child; and
• whether the Academy has been asked to accept a disproportionate number of children under the Fair Access Protocol compared to other schools.