Managing Compliance with the Infant Class-Size Duty

MANAGING COMPLIANCE WITH THE INFANT CLASS SIZE DUTY

CONTENTS

Introduction

What is the infant class size duty ?

How does this affect the admissions process ?

Permitted exceptions to the infant class size limit

Completion of School Census returns

Local Authority monitoring

Myth buster - Common misconceptions about the class size duty

Common myths about the appeals process

Definition of a ‘school teacher’ for infant class-size purposes

Summary of roles and responsibilities of schools and LAs

CHECKLIST Introduction

In 1998, the Government introduced a policy to reduce class sizes for children aged 5, 6 or 7 years old in infant classes.

At that time, over 20% of infants were in classes of over 30 pupils to a qualified teacher. That figure had dropped to 1.7% by January 2006.

The number of illegally large classes was only 0.7% of the 2006 total, and we found that these were mainly short-term breaches of the law or due to misunderstandings of class size legislation. However, the number of classes reported as legally large had increased. Discussions with some of the LAs and schools involved suggested that causes of this include:

– schools and LAs’ incorrectly treating additional pupils as ‘permitted exceptions’ to the class size limit (with the result that classes were shown as lawfully rather than unlawfully large); – misreporting of data; – some misunderstanding of legislation.

The intention of this guidance is to:

 explain what the infant class size duty is;

 set out the respective roles and responsibilities of LAs and schools in monitoring and ensuring compliance with the duty, including the new requirement (set out in paragraph 6) for schools to seek LA approval of certain ‘permitted exceptions’ before admission;

 provide clarification on issues which feedback from LAs and schools have identified as sources of misunderstanding.

2 What is the infant class size duty ?

1. Section 1 of the School Standards & Framework Act 1998 imposes a limit on “class sizes for infant classes” i.e. any class where the majority of children will have reached the age of 5, 6 or 7 by the end of the academic year. More detailed regulations say that:

“no infant class ….shall contain more than 30 pupils while an ordinary teaching session is conducted by a single school teacher”. 1

2. An ‘ordinary teaching session’ does not include a school assembly or other school activity usually conducted with large groups of pupils2, and such activities should not be included in the class size count for School Census purposes (see para 9).

3. We believe that there is some confusion over who can or cannot teach an infant class unsupervised, which Annex A clarifies by giving a definition of ‘school teacher’ for infant class-size purposes.

How does this affect the admissions process ?

4. If they receive sufficient applications for their normal year of entry (usually Reception), schools’ admission authorities must admit pupils up to their published admission number - even if the effect of this might be that they would have to employ another teacher or restructure classes in order to comply with the class size duty e.g. a school with an admission number of 40 might employ two teachers, or combine Reception and Year 1 and have 80 pupils split between 3 teachers.

5. Although there is an expectation that schools will maintain numbers in each year group as it progresses through school, in line with its original admission number, this is not a statutory requirement. Admission authorities may refuse admission for places in any year other than the normal year of entry i.e. Reception, if offering a place would result in them having to employ an additional teacher or create another classroom. This may apply even if these measures would not have to be taken until the following academic year e.g. because a child will no longer be treated as a ‘permitted exception’ (see para 6).

1 The Education (Infant Class Sizes) (England) Regulations 1998 and the Education Act 2002 2 Section 4, School Standards & Framework Act 1998

Example

A school has an admission number of 30. It has 31 children in Reception (one was a ‘permitted exception’ for that year only; 29 in Year 1 and 30 in Year 2.

A parent applies for a place in Year 1.

The school refuses admission and advises the parents of their right of appeal, as admitting an additional pupil to an infant class would have meant the school having to take measures to comply with the class size duty in the next academic year.

Permitted exceptions to the infant class size limit

6. Regulations prescribe the limited circumstances in which pupils may be admitted as exceptions to the infant class size limit. These exceptions are:

a. children with statements of special educational needs who are admitted to the school after the normal admission round;

b. children moving into the area outside the normal admission round for whom there is no other available school within a reasonable distance. From February 2007, legislation has required admission authorities to get local authority confirmation that a child falls into this category before admitting them as a permitted exception. This means that the LA will need to check whether there are places available for the child at any other school within a reasonable distance of their home;

c. children admitted outside the normal admission round because the person responsible for making the original decision recognises that an error was made in implementing the school’s admission arrangements and that a place should have been offered;

d. children admitted where an admissions appeal panel upholds an appeal;

e. from February 2007, where the child is looked after and the local authority which is the corporate parent either (as admission authority) decides to admit the child to one of its community or voluntary controlled school, or directs another admission authority to admit the child outside the normal admissions round.

7. In these cases, the child will be an excepted pupil for the remainder of the academic year in which they were admitted unless they could readily be accommodated within another suitable infant class in the same school. This

4 means that, for that academic year, the admission authority does not have to take measures to comply with the infant class size duty e.g. employing an additional teacher. But it would have to do so for the next academic year.

Example

Tony moved into a new rural area in October and needed a place in Reception. His local school was full and couldn’t offer a place without exceeding the class size limit, and the next nearest school with places available was 10 miles away.

He was admitted to the local school as a ‘permitted exception’, so did not count as a 31st child in his class for the remainder of that academic year i.e. the school did not have to restructure or to employ another teacher. If no other infant leaves by the beginning of the next academic year, then the school will have to take measures to comply with the class size duty.

8. Other pupils are permitted exceptions for any time they spend in an infant class and their presence does not put the school under a duty to take measures to comply with the class size limit. These are:

 Children attending an SEN Unit, forming part of a mainstream school, who spend part of their time in mainstream classes;

 Children on roll of a special school who spend part of their time in classes at a mainstream school.

Example

Sarah is on roll of a unit for children with hearing difficulties, co-located with a primary school. Two mornings a week, she joins a Year 1 class. She is treated as a permitted exception and so should not be recorded as a 31 st child for any of the time she spends in this class while she is in Key Stage 1 (not just that academic year).

5 How is compliance with the duty monitored ?

Completion of School Census returns

9. Information provided by schools, via LAs, in the January School Census gives the number of children to a schoolteacher in ‘ordinary’ classes at the time of the count. The count must not include children involved in ‘excepted activities’ such as assemblies and other activities where large groups may normally be gathered together under supervision of staff who are not classed as ‘teachers’ for the purpose of infant class size legislation. Revised guidance on completion of the Schools Census instructs schools that, if children are involved in excepted activities at time of count, they should default to the next ‘ordinary’ class for the purposes of this return. Guidance on completion of this part of the School Census return and a full list of excepted activities can be found on Teachernet at www.teachernet.gov.uk/docbank/index.cfm?id=10740 .

Local Authority monitoring

10. School Census returns are sent via LAs, who have a responsibility to check data before forwarding it to the DfES. It is important that LAs ensure they have systems in place which enable them to:

 Check the accuracy of returns e.g. has the count been carried out in relation to ordinary teaching sessions only ?;

 Check with schools where infant classes appear to be over-size, and to find out why;

 Refer issues to an appropriate person in the authority, so that urgent remedial action can be taken where schools report classes as being illegally oversize i.e. more than 30 children to a schoolteacher (as defined in Annex A), with no permitted exceptions;

 Refer cases to the DfES School Admissions Team ([email protected] ) if a school is in breach of infant class size legislation but refuses to take remedial action.

11. Apart from monitoring of Census returns, LAs must also ensure that they have approved admission of any child as a permitted exception under the ‘no other available school within reasonable distance’ category (see paragraph 6), and that their schools are aware that they should be asking for approval for admitting.

12. Annex B gives a summary of schools’ and LAs’ roles and responsibilities, and Annex C gives a checklist which will help ensure compliance with the duty.

6 Myth buster - Common misconceptions about the class size duty

Myth - A child can be a permitted exception for admission to a faith school if there is no other school of that faith within a reasonable distance.

No. The Regulations refer to there being no other schools with places available, which provide a ‘suitable education’, within a reasonable distance of the child’s home. That definition does not mean particular types of school but is described as meaning “efficient full-time education suitable to his age, ability and aptitude and any special education needs he may have.” A child should not be admitted as a permitted exception under this category unless the local authority has first given its approval.

Myth – If a class goes over 30, we can meet the class size duty by putting another adult in to support the teacher.

Not necessarily. They must be a ‘school teacher’ as set out in Annex A.

Myth - Any child admitted outside the normal admissions round can be treated as an exception to the class size limit.

No. Only those listed in paragraphs 6 to 8 may be treated as permitted exceptions.

Myth - The class size limit doesn’t apply to mixed nursery/Reception or Year 2/Year 3 classes.

This isn’t necessarily true. The duty applies to classes where the majority of children will reach the age of 5, 6 or 7 within the academic year. So, if the majority of the children within a class will be aged 5, 6 or 7 by the end of the academic year, the class must comply with the statutory limit.

Myth - Twins or other multiple birth children are permitted exceptions and must be admitted.

No. Admission authorities could choose to give these children priority within their published admission arrangements. But if they don’t, it is not unreasonable to refuse admission to a child e.g. if one can be offered the 30th place, but the other is ranked 31st against the school’s admission criteria.

Myth - Extra funding to ensure that we comply with the class-size limit has been taken away.

Separate funds were originally put aside to help schools reorganise to meet class-size limits e.g. to create additional class-rooms and to employ additional

7 teachers. However, funding to help local authorities meet the class size limit is now included within Dedicated Schools Grant allocations. Local authorities can choose to include in their funding formula, in consultation with their Schools Forum, a factor to direct resources to schools with KS1 classes to enable them to meet the class size commitment.

Myth - If admitting another child meant we’d have to move to mixed-age teaching to comply with class size limits, we could refuse admission.

No. When dealing with applications for admission at normal point of entry i.e. Reception, the school must admit up to its published admission number.

For Year 1 or Year 2 applications, it could refuse admission if it would be necessary to employ another teacher or incur some other cost in order to comply with the class size limit, but given the number of schools which have successfully adopted mixed-age teaching, it would be extremely difficult to justify this as a reason for refusing admission.

Common myths about the appeals process

Myth - If the admission authority says that it can’t admit an applicant without breaching the class size limit, an appeal panel cannot uphold an appeal.

No. The admission authority may put forward a case to an appeal panel, claiming that they refused admission because this would have breached the infant class size limit. But it is up to the panel to determine whether this would be the case.

If the panel agrees that admission would have breached the limit, it can then only uphold an appeal if the child had been refused a place in error, or if the decision to refuse admission was unreasonable i.e. wholly irrational.

But, if the appeal panel finds that admission wouldn’t have resulted in the limit being breached (e.g. where an Admission Number is less than 30 and the number has been set because of available capacity, rather than with class- sizes in mind), the appeal hearing should proceed in the same way as one for a Key Stage 2 or secondary school place.

Myth - A panel could uphold an appeal on the basis that the decision to refuse admission was unreasonable if they think admission criteria should have given priority to siblings.

No. The courts have defined an unreasonable decision in this context as being one which is “perverse in the light of the admission arrangements” or “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it”.

8 With such a definition, we would expect only very exceptional cases to be upheld on the basis of a decision to refuse admission being unreasonable.

Myth - Year 2 appeals should be automatically upheld because the children would be permitted exceptions for the remainder of that year if admitted on appeal and the class size limit won’t apply after that.

No. The reason that admission has been refused is because to do so would result in a breach of the class size limit. The appeal panel’s job is to consider (a) would admission have resulted in class size exceeding the limit ? (b) If so, was the decision made correctly ? (c) Was it an unreasonable decision, as described above ?

Myth - A panel should allow appeals on the basis that pupil mobility at the school is such that the class is not likely to exceed the class size limit for a significant period of time.

No. The panel cannot know exactly what changes will occur, and shouldn’t anticipate that other children may leave.

9 Annex A

Definition of a ‘school teacher’ for infant class-size purposes

1. Schools will meet the infant class size requirements if an infant group of no more than 30 is taught by a ‘school teacher’3. School teachers include:

 Head teachers

 Qualified teachers

 Overseas trained teachers

 Instructors with special qualifications or experience

 Staff on an employment-based teacher training scheme

 Graduate teachers

 Registered teachers

 Student teachers

 Teacher trainees yet to pass the skills tests

2. ‘School teachers’ do not include teaching assistants, higher level teaching assistants or other support staff. However, support staff may carry out ‘specified work’, such as delivering lessons to pupils, within infant classes in certain circumstances4. In each case:

 the headteacher must be satisfied of the support staff’s skills, expertise and experience to carry out such work;

 the work carried out must be in order to assist or support the work of a ‘school teacher’; and

 s/he must be subject to the direction and supervision5 of a ‘school teacher’.

3. In practice this means that, although a school with infant classes must have sufficient school teachers to be able to teach its infants in groups of 30 or fewer per teacher, support staff, providing they meet the above criteria, may ‘teach’ infant groups when teachers are not available (e.g. when a

3 Defined by section 122 of the Education Act 2002 and the Education (School Teachers’ Prescribed Qualifications, etc) Order 2003 which was made under that section 4 See the Education (Specified Work and Registration) (England) Regulations 2003) 5 ‘Supervision’ does not mean that the teacher must be alongside the teaching assistant or HLTA etc but that he or she is able to ensure that the member of support staff is effectively teaching the class.

10 teacher is away from their class on their Planning, Preparation and Assessment time).

4. Support staff must not be the main ‘teacher’ for an infant group and, where support staff are undertaking the more demanding aspects of “specified work” – particularly where they are working with whole classes – head teachers should have regard to the higher level teaching assistant (HLTA) standards in determining whether those staff have the necessary level of skills and expertise.

5. If a school were to use support staff instead of teachers to lead its infant groups, either as a permanent arrangement or for the majority of the school week on a regular basis, it would be in default of its class size duty. Consequently, a school must employ sufficient teachers to enable it to teach its infant classes in groups of no more than 30 per school teacher.

11 Annex B

Summary of roles and responsibilities of schools and LAs

Schools:

 To complete the Schools Census return accurately;  (Foundation & Voluntary Aided schools) To ensure that they do not set admission numbers or make decisions on admission which result in breaches of the infant class size limit;  To make necessary organisational or staffing changes to ensure that the class size duty is met;  To check with the LA before admitting children as permitted exceptions under the ‘no other available school within reasonable distance’ category (see paragraph 6);  To provide suitable and timely training for admission appeal panel members, clerks and presenting officers – in the skills required to consider, record and present appeals; on School Admission Codes and relevant legislation (including the limited scope for upholding infant class size appeals). This can be done in collaboration with LAs, diocesan authorities etc.

Local Authorities:

 To check Census returns and follow-up on any apparent breaches of the class size duty;  If a school refuses to take qualifying measures to comply with the class size limit, to refer the case to the DfES’ School Admissions Team;  (For community and voluntary controlled schools) To ensure that determined admission numbers or admission decisions do not result in breaches of the infant class size limit;  To provide suitable and timely training for admission appeal panel members, clerks and presenting officers – in the skills required to consider, record and present appeals; on School Admission Codes and relevant legislation (including the limited scope for upholding infant class size appeals);  It is good practice for LAs to facilitate this training for all involved in an area’s appeal panels – to ensure greater fairness and consistency in decision-making.

Some time ago, the Department commissioned Information for School & College Governors to produce training packs for appeal panel members and officers involved in admission and exclusion appeals. The packs include all the necessary information for a trainer to organise and run a structured training day. More information is available from www.governors.fsnet.co.uk/

12 Annex C

CHECKLIST

For schools

1. Check admission number.

Is it right ? Could admitting pupils up to the Published Admission Number result in a breach of the class size limit ?

Remedial action – (a) change admission number through annual admissions consultation process (if this means setting an admission number which is lower than that given as an ‘indicated admission number’ in the school’s net capacity assessment, this will require publication of a notice in a local newspaper); or (b) reorganise to ensure the class size limit won’t be breached.

2. Review school/class organisation

Do you need to change to mixed-age teaching in order to comply with the class size duty ?

Example

A primary school decided that it needed to adopt a mixed-age teaching structure to comply with the class size duty.

The Head recognised that some parents would be concerned about the impact on their child’s education and prepared a letter, explaining that the change was being introduced to ensure that classes did not exceed 30 children to a teacher, and setting out what the new arrangements would be. She explained in a positive way how differentiated teaching would ensure that children received a suitable education. Although she had to meet with a few parents to talk through their children’s needs and how they would be met, the change was implemented smoothly.

3. Are you using the right mix of teaching staff/support in your infant classes ?

Check your current staff usage against the list in Annex A. Are you complying

13 with the class size duty ? Have you got the balance of teaching staff across infant classes right ?

For local authorities

1. Do you have systems in place to handle schools’ requests to confirm whether a child qualifies as a permitted exception under the “no other available school within reasonable distance” category ?

2. Do relevant staff understand the class size duty and what the permitted exceptions are ?

3. Do you have systems in place to check the School Census returns, and to identify and follow-up on large classes and reasons for them ?

For Admission Forums

1. Do you commission reports or ask for regular information on compliance with the infant class size duty ?