Require accommodation: the child must require accommodation because: there is no person who has parental responsibility for him or her; s/he is lost or abandoned; the person who has been caring for the child can not supply suitable accommodation or care.
A local authority may accommodate any child in its area (even though a person with parental responsibility is able to do so) if it thinks that this will safeguard or promote the child’s welfare. Any person with parental responsibility may remove children from local authority accommodation.

The terms child in public care and looked-after child are sometimes (incorrectly) used interchangeably. The former is more restrictive. The broader definition is what is meant in most of the government education guidance, even when the narrower term is used.

Priority for looked-after children in over-subscription criteria

The Education (Admission of Looked After Children) (England) Regulations 2006 are now in force. These set out when an admissions authority for a maintained school must give priority in its over-subscription criteria to a ‘relevant looked-after child’ (one who is looked after by a local authority at the time of his or her application, and who will still be looked after when s/he is admitted to the school).

Further protection in the Education and Inspection Act 2006

Admissions authorities must comply with the stated school preference of a parent. If one of a number of statutory exceptions applies (e.g. admission would cause ‘prejudice’), the parent’s application can be refused, but s/he has a right of appeal.

Where a child has been permanently excluded from two or more schools, if the parent’s application is refused, there is no appeal (for two years from the date of the latest exclusion).

If a local authority wishes to admit such a child to a school for which it is the admissions authority (i.e. a local community or voluntary controlled school), it must enable the governing body to appeal against such direction.

A local authority can direct a school, for which it is not the admissions authority, to admit a child who has been refused admission or excluded from every school within a reasonable travelling distance.

New provisions

Looked-after children who have been twice permanently excluded
If a local authority wishes to admit a looked-after child who has twice been permanently excluded to one of its community or voluntary controlled schools, it need no longer arrange an appeal for the governing body.

Instead, the local authority must give notice of the decision to the governing body, which may, within seven days, refer the matter to the schools adjudicator claiming admission of the child would cause serious prejudice to the provision of education or use of resources.

If the adjudicator agrees with the school, the decision to admit the looked-after child ceases to have effect. The adjudicator may decide that another maintained school must admit the child (with the agreement of the local authority that looks after the child), provided that s/he has not been permanently excluded from the school, or that admission would not cause that school serious prejudice.

Regulations cover whom the adjudicator must consult and what information admissions authorities must give the adjudicator (see below).

Procedure for giving directions

Where a local authority directs the governing body of a school for which it is not the admissions authority to admit a child, on receipt of such notice to direct, the governing body for a school in England (which used to refer the matter to the secretary of state to determine which school should admit), will now refer the matter to the adjudicator.

Direction to admit looked-after children to specified school

A local authority can give a direction to admit a looked-after child to any school in England, other than a school for which the local authority is the admissions authority or a school from which the looked-after child has been permanently excluded.

The local authority needs to consult the admissions authority for the school specified in the direction. The admissions authority needs to inform the local authority within seven days whether it is willing to admit the looked-after child.

There is the possibility of referring the matter to the adjudicator on ‘serious prejudice’ grounds.

Related regulations

Linked to the statutory changes (‘New provisions’, left and above), the DfES has issued new regulations:

1.  The School Admissions (Adjudicator Determinations Relating to Looked After and Certain Other Children) (England) Regulations 2007

These specify whom the adjudicator must consult before determining that a school must admit a looked-after child:

  • the admissions authority for the school
  • the governing body of the school
  • the local authority for the school’s area, if not its admissions authority

The regulations also require that the admissions authority for a maintained school provide the adjudicator with information about the circumstances of the school as requested.

2.  The Education (Infant Class Sizes) (England) (Amendment) Regs 2006
These add ‘looked-after children admitted outside normal admission round’ as a new category of ‘excepted pupil’ when dealing with infant class size admissions.

This means that if a school has already admitted up to 30 pupils in an infant class and a looked-after child applies for a place, s/he can be admitted without the school having to take ‘qualifying measures’ (such as employing an additional teacher or building a new classroom) for the year in which the looked-after child is admitted. If the looked-after child is still the 31st child the following year, and remains in an infant class, the school must take qualifying measures at that stage.

The regulations amend the existing ‘excepted pupil’ category of ‘those for whom there are no schools within a reasonable distance from home’ by requiring schools to get local authority confirmation before relying on this exception, to ensure greater consistency in interpretation.

Changes to admissions codes

A revised admissions code (www.dfes.gov.uk/sacode/) makes important changes to law and practice for pupils applying for admission from September 2008. The intention is to allow admissions authorities time to consult properly, and to determine and publish new arrangements as required by the Education and Inspections Act 2006, regulations and the code itself.

In particular, schools will have to ‘act in accordance with’ the new
code (as opposed to ‘having regard to’ the previous 2003 admissions code of practice). This gives the new code greater authority — and schools will ignore the code’s contents at their peril.

Looked-after children in the code

There are specific sections dealing with looked-after children in the new code: the definition of looked-after child is given; the prioritising of looked-after children in over-subscription criteria and the special dispensation for faith schools is explained; and the new law on directing schools to admit
looked-after children is detailed.

The code confirms that the adjudicator’s decision is binding and that where a local authority thinks that a particular academy will best meet the needs of a looked-after child, it can ask the academy to admit that child, even if it is full. As ‘independent schools’, academies are not as tightly bound to education law as maintained schools, although their funding agreements with the DfES usually tie them in to following statutory guidance.

If there is no local consensus, the case can be referred to the secretary of state, who can seek the adjudicator’s advice and may direct the academy to admit a looked-after child.

Changes to exclusions guidance

Exclusions are a major issue for looked-after children: 0.9 per cent were permanently excluded in 2004-5 compared with 0.1 per cent of all children.

In the Sept 2006 Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units, the DfES has strengthened the sections dealing with looked-after children (see www.teachernet.gov.uk/wholeschool/behaviour/exclusion/guidance).

Schools are advised that they should be especially sensitive to these children as they are especially at risk of low attainment in school and exclusion. Schools should try every practicable means to keep a looked-after child in school, seeking local authority or other professional advice as appropriate (a school’s looked-after children officer may be best placed to do this).

Social services (now generally included in children’s services) should be involved at the earliest opportunity to work with the school to avoid exclusion.

Whom to notify about exclusion

Schools should be aware that there could be more than two people to notify and who will have the right to make representations or appeal — a looked-after child’s ‘parent’ could include the birth parent, a representative of the local authority with a care order (such as a social worker) and any other person with whom the child lives (such as a foster carer).

The guidance confirms that heads should encourage these pupils to give their version of events.

GREEN PAPER CONSULTATION

Care matters: transforming the lives of children and young people in care

This recent consultation looked at: how to ensure earlier and more effective interventions and support for families where children are on the edge of care; proposals to strengthen the corporate parenting role of local authorities; high-quality placements that meet their needs; a first-class education; positive life outside school; and support for transition into adulthood. All looked-after children were included in its scope.

Chapter 5 dealt with the education of looked-after children. As well as  issues relating to looked-after children in early years and further education settings, the proposals included:

  • encouraging local authorities to place looked-after children in
    top-performing schools whenever they need to move school
  • undertaking, as part of the
    new two-yearly reports on fair admissions, a review of the location of looked-after children in schools — to demonstrate whether the new power for local authorities to place them in any school in the area is being used to best effect
  • making the Choice Advice service available to social workers and foster carers as corporate parents
  • piloting and consulting on the effectiveness of boarding provision for them
  • creating a presumption that they should not move schools in years 10-11, unless it is clearly in their best interests, and offering a free enhanced entitlement to school transport so they can remain in the same school after a placement move
  • better support in school to prevent their exclusions
  • issuing new guidance on a rationalised planning process for them
  • encouraging schools to offer a personalised education for
    looked-after children
  • introducing a dedicated budget
    (of approximately £500 per child) for each social worker to spend on improving the educational experience of every looked-after child
  • piloting different approaches to the use of ICT, and a project for private tutoring to support them
  • placing the designated teacher for looked-after children on a statutory footing, setting out clearly what his or her role and functions must be
  • piloting the introduction of a ‘virtual head teacher’ in every local area responsible for driving up the performance of schools and FE providers in relation to looked-after children and care-leavers
  • developing a new nationally available governors’ training module on how schools should cater for looked-after children
  • creating a new entitlement for all looked-after children and
    care-leavers to have access to support through a personal adviser until the age of 25

An initial response to the consultation should be published in 2007. Final decisions on proposals, with cost implications from 2008-09 onwards, will be taken in the context of the 2007 comprehensive spending review.#

AWARENESS IS KEY

Schools will have to be more aware of these particularly vulnerable children when they consider and review their policies and everyday practice.

If the proposals in the green paper are brought into force, it is hoped
that there will be useful additional protection and support for the children, schools and local authorities to help them to work together to achieve the Every Child Matters outcomes for looked-after children as well as for others.

Ingrid Sutherland is a solicitor, giving advice and training for the Advisory Centre for Education

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