Infant class size

First: is this even an infant class size appeal?

This is the single most useful question on the page, and most parents are never asked it.

The narrow test applies only where the admission authority refused your child because admitting them would breach the 30-pupil limit, and there was nothing the school could have done to avoid that without harming the education of the other children. That is paragraph 4.2 of the Appeals Code, in as many words.

If your child was refused for any other reason — the year group was full for reasons unconnected with the class size limit, or an oversubscription criterion put other children ahead of yours in a class that is not at the limit — then the Code says your appeal is decided under the ordinary two-stage process instead. That is a far more favourable test: at its second stage the panel must weigh your child's circumstances against the harm to the school.

Where the limit comes from

Regulations made under the School Standards and Framework Act 1998 cap an infant class — one where the majority of children reach the age of 5, 6 or 7 during the school year — at 30 pupils per school teacher. That is a statutory limit, not a school policy, and a panel has no power to set it aside because your case is a sympathetic one.

It binds the panel exactly as it binds the school. This is why an infant class size appeal feels so unlike the appeal parents expect: the panel is not deciding whether your child should have a place. It is checking whether the law allows one at all.

The only three ways one can be upheld

Paragraph 4.6 of the Appeals Code sets out an exhaustive list. A panel may only uphold the appeal where one of these three is made out.

1. Admitting your child would not actually breach the limit

The strongest route, and the most commonly missed, because it turns on a technical point rather than on anything about your family. Some children do not count towards the 30 — the Admissions Code calls them excepted pupils. If your child is one of them, admitting them does not breach the limit, and the whole basis of the refusal falls away.

Paragraph 2.16 of the School Admissions Code lists them. A child remains an excepted pupil for as long as they are in an infant class, or until numbers fall back to the limit:

• children admitted outside the normal admissions round with Education, Health and Care Plans specifying the school
• looked after children and previously looked after children admitted outside the normal admissions round
• children admitted after initial allocation of places, because of a procedural error made by the admission authority or local authority in the original application process
• children admitted after an independent appeals panel upholds an appeal
• children who move into the area outside the normal admissions round for whom there is no other available school within reasonable distance
• children of UK service personnel admitted outside the normal admissions round
• children whose twin or sibling from a multiple birth is admitted otherwise than as an excepted pupil
• children with special educational needs who are normally taught in a special educational needs unit attached to the school, or registered at a special school, who attend some infant classes within the mainstream school

Category (c) is worth reading twice. If the admission authority made a procedural error in handling your original application, your child can be admitted as an excepted pupil — which means the class size limit stops being an answer to your appeal at all. That makes the question "did they get anything wrong?" the most valuable question you can ask, even in an infant class size case. See mistakes in how the decision was made.

Category (g) covers multiple births: if one twin is admitted as the 30th child, the other can be admitted over the limit rather than separated.

2. The arrangements were unlawful or were applied wrongly

The panel must uphold the appeal where the admission arrangements did not comply with admissions law, or were not correctly and impartially applied, and your child would have been offered a place if they had been.

Both halves are required, and the second is where most of these arguments die. Showing that the school got something wrong is not enough on its own. You have to show the mistake is what cost you the place — that with it put right, your child was inside the number. If forty children were ahead of you and the error moves you three places, the panel must still dismiss the appeal.

3. The decision was one no reasonable authority would have made

This route exists, and in practice it almost never succeeds. Paragraph 4.10 of the Appeals Code sets the threshold explicitly, and it is not the everyday meaning of "unreasonable". The panel has to be satisfied the decision was perverse in the light of the admission arrangements — beyond the range of responses open to a reasonable decision maker, or so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it.

That wording comes from case law about the limits of judicial review. A decision you think is harsh, or wrong, or unfair does not come close. If the only thing you can say is that the outcome was unjust, this ground will not carry your appeal.

What the panel will not consider

• How much your child wants or needs the place. Not relevant unless it goes to one of the three grounds above.
• How the school compares with the one you were allocated. This is central at the second stage of an ordinary appeal. There is no such stage here.
• Your position on the waiting list. Paragraph 3.21 of the Appeals Code forbids the panel from taking account of where you have been placed on it, or from making any decision about it.
• That other families appealed and you did not, or vice versa. Also excluded by paragraph 3.21.
• Childcare, work patterns and the school run. Real problems, and not ones this panel is permitted to solve.

If none of the three applies

Then the honest answer is that an appeal is very unlikely to succeed, and there are better uses of the next few weeks:

• Get on the waiting list and stay on it. Admission authorities must keep one until at least 31 December of the school year, and it must be ranked by the published oversubscription criteria — not by how early you applied. Movement over the autumn term is common, and a place from the waiting list needs no appeal at all.
• Check the list is being run properly. Paragraph 2.15 of the Admissions Code says priority must not be given by date of application or date added to the list. Councils get this wrong.
• Appeal anyway if you have a genuine ground. It costs nothing but your time, and the three grounds above are narrow, not impossible — particularly the excepted-pupil route.
• Look at the year above. The limit binds infant classes. It stops applying from Year 3, and a school that cannot take your child now may be able to later.

Deadlines

Set by the admission authority, which must publish its appeals timetable by 28 February each year. Within that, the Appeals Code requires:

• at least 20 school days from the date on your refusal letter to lodge your appeal, in writing
• at least 10 school days' notice of the hearing
• appeals from the normal admissions round heard within 40 school days of the deadline for lodging appeals
• the decision letter within 5 school days of the hearing, wherever possible

Admission authorities must not limit the grounds on which you can appeal (paragraph 2.5), and must comply with reasonable requests for the information you need to prepare (paragraph 2.8). If you want to know how the class is organised, how many teachers it has, or how the excepted-pupil rules have been applied — ask, in writing, early.

Excepted pupils are listed at paragraph 2.16 of the School Admissions Code 2021. The three grounds and the reasonableness threshold are at paragraphs 4.6 and 4.10 of the Appeals Code.

The other grounds

• A mistake in how the decision was made The strongest ground there is, and the most underused. If the admission arrangements were unlawful or were applied wrongly — and you would have got a place otherwise — the panel must uphold the appeal.
• Distance and catchment How the distance was measured, from where to where, and whether the same method was used for everyone. Measurement disputes are first-stage arguments, and they are checkable in a way most grounds are not.
• Siblings Whether a brother or sister counts is decided by the school's own definition, not by common sense. Half-siblings, step-siblings, fostered children and a sibling in the sixth form are treated differently by different schools.
• Faith and religious criteria Faith schools rank applicants on evidence of practice — attendance records, a form signed by a minister, baptism dates. Most faith appeals turn on whether that evidence was gathered and scored the way the published arrangements say.
• Medical and social need The ground most parents lead with, and it is a second-stage argument almost every time. It works when it shows what this school can do for your child that the allocated school cannot — not how much you want it.
• Special educational needs without an EHC plan A child on SEN support has no automatic route to a named school, and it is an admission panel that hears the case — not the SEND Tribunal. It works as a second-stage argument about provision this school has and the allocated one does not.
• A late application Two first-stage questions a panel can act on: whether it was right to treat your application as late at all, and whether your reason for being late is one the published arrangements say must be accepted anyway.
• In-year admissions Applying outside the normal round — a house move, or a school that is not working out. The ordinary two-stage test applies on a much shorter timetable, and the year group will usually already be full.
• Grammar schools and the 11-plus A selection appeal and an oversubscription appeal are different things judged on different tests. If your child missed the qualifying score, the panel is asking whether they are of the required academic standard — not whether the school has room.
• Sixth form places Post-16 admission runs on published entry requirements as well as oversubscription criteria, and the student gains a right of appeal of their own alongside their parents'. Where the refusal was about grades, the panel may not form its own view of the student's ability.
• Twins and multiple births Where one twin is offered a place and the other refused, the excepted-pupil rule can admit the second over the infant class size limit rather than separate them. Above the infant years the limit falls away and it becomes an ordinary sibling or second-stage argument.