Small reception class sizes: what consequences for admission appeals?

July 25th, 2013 by Tom Ogg

T Primary School in Islington has a policy of ensuring that its reception class sizes are small.  It admits 45 children each year, who are split between one reception class of 22 children, and one of 23 children.  However, when those same children reach years 1 and 2 they are taught in classes of 30, the maximum class size permitted under the infant class size limit imposed by regulations made under section 1 of the School Standards and Framework Act 1998.

T Primary School achieves this by having one mixed class of children drawn from year 1 and year 2.  In other words, years 1 and 2 (a total of 90 children, 45 from each year) are split into three classes of 30: the 30 youngest children are placed in one class; the 30 oldest children are placed in a second class; and the remaining 30 children are taught in a mixed class composed of 15 children from year 1 and 15 from year 2.

In R(DD) v Independent Appeal Panel LB Islington [2013] EWHC 2262 (Admin), an Independent Appeal Panel (a “Panel”) decided that although the admission of the claimant’s son to T Primary School would not breach the infant class size limit when the claimant’s child was in reception, given the arrangements outlined above, his admission would probably breach that limit in future years.  Consequently, the Panel treated the claimant’s appeal as a ‘infant class size appeal’, which allows an appeal to succeed on very limited grounds only, rather than an ‘ordinary appeal’ which provides for much broader grounds on which an admissions appeal may succeed.

The question for the High Court was whether it was lawful for the Panel to treat the claimant’s appeal as an infant class size appeal on the grounds of that probable future breach of the infant class size limit.  The claimant argued it was not lawful.  In the submission of the defendant and the Secretary of State (who appeared as an interested party), if the claimant were correct, T Primary School would either be forced to abandon its policy of small reception class sizes or face the likelihood that there would be more than 30 children in a class in future years.

HHJ McKenna held that it was lawful for the Panel to treat the claimant’s appeal as an ‘infant class size appeal’, under section 4 of the school admissions Appeals Code.  His reasoning, at ¶49, was based on “a close reading of the wording in section 3 and 4 of the Appeals Code and the context in which it sits”.  As to the context, HHJ McKenna noted that the infant class size limit is “plainly an important statutory policy”, and said:

It would to my mind be wholly inconsistent with the context to construe the 2012 Appeal Code as requiring panels when considering whether they would be in breach of the limit on infant class size to look only at a breach that is likely to occur during the first academic year that the child spends at the school”.

As to the Appeals Code itself, HHJ McKenna accepted the submissions of the defendant, and in particular those of the Secretary of State, to the effect that the words used in the Appeals Code “plainly envisaged that a Panel is required to exercise a judgement as to what is to happen in the future and does not place any temporal limitation on when the breach of the infant class size limit might arise”.

Consequently, the claimant’s claim failed, and the potentially deleterious effects upon T Primary School’s reception class size arrangements (and those of other schools using a similar model) were thereby avoided.

Jonathan Moffett of 11KBW appeared for the Secretary of State.

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