Earlier this year, we were instructed by one of our multi-academy trust clients to prepare a letter to the DfE responding (pre-emptively) to the local authority's (LA) application for a direction to admit a child placed at the school under the LA’s Fair Access Protocol (FAP), and raising wider concerns on the FAP’s compliance with the School Admissions Code 2021 (Admissions Code).

Our client has given us permission to explore the DfE’s response to their wider complaint in this article.

Background

The child was previously a pupil of the school when they displayed behaviour meeting the definition of ‘challenging behaviour’ under Para. 3.10 and Footnote 76 of the Admissions Code.  At that time, the parent chose elective home education (EHE) but, when that didn't work out, an in-year application (IYA) was made for the child to be admitted back at the school.  

The school had a place available but refused on the grounds of ‘challenging behaviour’, having met all the other criteria and requirements set out at Paras. 3.9 to 3.13 of the Admissions Code, expanded on in the DfE’s separate FAPs advice for local authorities and school admission authorities.

After refusing the IYA, the school referred the child to its LA’s FAP as required by Para. 3.10. However, the LA’s FAP contained its own definition and restrictions to ‘challenging behaviour’ refusals which essentially raised the threshold, and also purported to give the FAP Panel power to decide whether or not to 'permit' a ‘challenging behaviour’ refusal at all.

The LA’s application to the DfE for a direction to admit 

The LA initially refused to accept the Para. 3.10 refusal and referral on the grounds that its own higher threshold/other criteria were not met. The school pushed back, and the LA then placed the child back at the school under the FAP instead. The school refused to accept the placement, and the LA applied to the DfE for a direction that the school admit the child.

The DfE (having sought advice from a Schools Adjudicator) refused the application on the grounds that, although the school had not been asked to admit a disproportionate number of children compared to other schools, the FAP had been applied too mechanically, allowing no consideration of the child’s circumstances, and the placement was inappropriate and not in the child’s best interests. 

The wider complaint about the LA’s FAP

The points that came out of the DfE’s response to the various concerns about the FAP that our client raised were:

• The Admissions Code sets out an exhaustive list of categories of children eligible for placement under the FAP. LAs are not permitted to add to or revise these (as the LA did here, by changing some of the criteria).

• Paras. 3.9 to 3.13 and Footnote 76 of the Admissions Code define 'challenging behaviour' (expanded on in the separate FAP guidance) and the other criteria that must be met. LAs/FAPs cannot restrict this provision by adding conditions to be met in order for a child to considered by the FAP following a refusal and referral. This is welcome, as many FAPs we have seen try to do this.

• It is for the ‘admission authority’ for the school to decide whether to refuse on the grounds of ‘challenging behaviour’, and they will then subsequently refer the child to the FAP.  The LA/FAP Panel have no power to decide whether to 'permit or refuse' the refusal and referral, or otherwise interfere with it. Again, this is important, as we see many FAPs trying to do this.

• It is not unlawful, per se, for a FAP Panel to place a child refused admission under Para. 3.10 back at the school that refused, as long as the requirements for FAP Panel placements are met (i.e. the school is appropriate for the child, it is in their best interests, and the school has not been asked to take a disproportionate number of children with challenging behaviour or who have been permanently excluded).

• Any terminology or phrases used in a local FAP needs to be clearly defined and their application explained.

• The LA’s suggestion in its FAP that managed moves can be recognised under the FAP because they occur before admissions from the waiting list, and can happen when the school is full, is incorrect. Managed moves occur outside the FAP and are permanent moves from one mainstream school to another, therefore they must comply with the usual in-year admissions process. Only where a child is eligible under one of the FAP categories can the managed move happen as a FAP placement and ahead of a waiting list.  
  • This is consistent with changes the DfE recently made to its revised Suspension and Permanent Exclusion from maintained schools, academies and pupil referral units in England, including pupil movement which comes into force on 26 July 2026.

• Having a points-based system for deciding whether a school has been allocated a disproportionate number of children with challenging behaviour, or who have been permanently excluded compared to other schools in a FAP is potentially lawful, as long as it achieves this.
  • Unfortunately, the DfE did not expand on whether this particular LA’s points-based ‘merit’ system (which awarded three different levels of points and gave ‘retrospective’ merits for previous standard in-year admissions in some cases without reference to whether the child’s behaviour was challenging or the child had been permanently excluded) was compliant.

• FAPs should set out how they will be applied to any grammar schools in the area.

Our view

Controversially, in our view, the DfE maintained that FAPs aren't just for children who are currently without a school place.

The DfE referred to the partial statement in Para. 3.14 which says FAPs are for “unplaced and vulnerable children, and those who are having difficulty in securing a school place in-year”, which they said means that a child may be eligible for the FAP even if they currently have a school place, as long as they are either vulnerable or are having difficulty securing a place (and they meet the criteria in paragraph 3.17).  

We have strong reservations about this, and expect it to be a point of further challenge.  

It is our view that the FAP (under which children supersede the rights of all other children, including those on the waiting list and those previously refused admission, and irrespective of current pupil numbers) must be only for children without a place, who need one to be allocated quickly, with all other routes having been exhausted.  

The DfE will be consulting on revisions to the Admissions Code later this year, primarily to cover changes required as a result of the Children’s Wellbeing and Schools Act 2026 around the LA’s power to direct admission, and it has confirmed that it is likely to review the section on FAPs as part of this process.