If a child is refused a school place, their parents have a legal right to lodge an appeal and there have been many questions in recent weeks about how admission appeals should be managed due to the restrictions in place to manage the transmission of the coronavirus. . Given that the government has now introduced legislation which sets out how admission appeals should be handled, this briefing note covers some of the key issues that admissions authorities will need to be aware of.
What are the new regulations and why have they been created?
On 24 April 2020 the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (the ‘New Regulations’) came into effect to amend on a temporary basis the School Admissions (Appeals Arrangements) (England) Regulations 2012. The School Admissions Appeals Code (the ‘Appeals Code’) has not been amended and many aspects of it must still be complied with, but where the New Regulations introduce or mandate a temporary change to admission appeal rules which conflicts with an aspect of the Appeals Code, the New Regulations take precedence. Non-statutory guidance has also been issued called ‘Changes to the admission appeals regulations during the coronavirus outbreak’ and is available here.
The objective of the New Regulations is to provide admission authorities, local authorities and admission appeal panels with greater flexibility to handle and manage appeals and to provide parents appealing admission decisions with appropriate support to avoid them being disadvantaged as a result of the public health measures in place to manage Covid-19.
The New Regulations will apply until 31 January 2021 (subject to being brought forward should the government consider this appropriate).
Are there any practical changes to consider?
Although the New Regulations are designed to provide more flexibility, they also introduce new challenges for admission authorities, clerks and appeal panels to grapple with in a short space of time. It will therefore be important for admission authorities to ensure they are familiar with the changes, not least because appellants can still bring complaints on the grounds of maladministration.
There are also a number of practical issues that arise this year. For example, due to the additional challenges this year, admission authorities that usually contract out the administration and management of admission appeals to the local authority should make enquiries about whether an appeals service will still be available this year as local authorities might struggle to arrange hearings over and above the appeals they are legally responsible for. If some local authorities do not have the capacity or resources to provide an appeals service to other admission authorities, then the schools / trusts that usually rely on this service will need to make urgent alternative arrangements to source independent and trained panel members and clerks.
In addition, for admission authorities that usually make their own arrangements to appoint an independent appeal panel, it is important to bear in mind that clerks and panel members who are usually called on for this task may not be available this year due to their personal circumstances.
It is important to remember that the appeal panel must be independent of the school and the panel must avoid bias or the appearance of bias. No person should be appointed to a panel who has a connection of a kind which might reasonably be taken to raise doubts about that person’s ability to act impartially.
Does the appeal hearing have to be held in person?
No. In normal circumstances, appeal panels must allow appellants the opportunity to appear in person and make oral representations. However, the New Regulations state that there is no requirement for the panel hearing to be held in person where it is not reasonably practicable to do so for a reason relating to the incidence or transmission of coronavirus.
An appeal panel may decide to hold an appeal hearing using telephone or video conference (“remote access”) as long as the following conditions are satisfied:
- the parties are able to present fully their case;
- each participant has access to the electronic means to allow them to hear and be heard and (where using a live video link) see and be seen, throughout the appeal hearing; and
- the panel considers that the appeal is capable of being heard fairly and transparently.
Note that this is a decision for the appeal panel, not the admissions authority.
When can an appeal be considered based on written information?
Appeals can be decided based on the written information submitted by the parties but only where any of the above conditions for telephone or video conferencing are not met. As a result of the emphasis placed on remote hearings in the New Regulations, an appeal panel, supported by the clerk, should make a careful note on a case by case basis to justify any decision to consider an appeal based on written information alone given that it will mean that appellants will not have an opportunity to make oral representations.
If an appeal panel considers an appeal based on the written information submitted, it must ensure that the parties are able to present fully their case, in order for the panel to make a decision on the appeal which is fair and transparent. The guidance referred to above sets out the suggested procedure for appeals decided on the basis of the written submissions.
Are there any other procedural considerations to have in in relation to remote appeals?
If a parent makes a request for the appeal to be considered in a particular format, then the appeal panel should give that request due consideration instead of applying a blanket policy across the board, considering each request on a case by case basis. Appeal panels must also take into account any considerations under the Equality Act 2010, including the duty to make reasonable adjustments for participants with a disability.
The clerk will need to contact appellants as soon as possible to explain the new, temporary arrangements for appeals and to establish whether they have access to the necessary equipment for telephone or video conference (if that is how the appeal is to be considered). The guidance issued by the Department for Education recommends that, where possible, the clerk should contact appellants by telephone to discuss the arrangements (although much of the detail can, of course, be confirmed in writing too).
Consideration will also need to be given to how the appeal panel will enable appellants who do not have English as a first language to participate, including how translators can be included in the process where appropriate.
If video or telephone conferencing is used, appeal panels will also need to consider whether any steps can be taken to reduce the risk of IT issues affecting the integrity of the hearing, for example, by having IT support on hand as it is likely to be difficult for a clerk to respond to any technical difficulties as well as clerking the hearing. In addition, appeal panels will need to consider offering appeal hearings at flexible times given that it is possible that some parents will struggle to participate in a hearing during the daytime if they have children to look after and key workers will need to be able to access the hearing around their working hours.
Are there any data protection considerations which arise from the new procedures?
Admission authorities and appeal panels must consider data protection when planning how to manage appeals this summer. For example, is the technology you are using secure and is the clerk familiar with how to adjust the settings to enhance the level of security that is available (assuming the clerk is dealing with these practicalities). Is training required before the hearing and / or does the panel need IT support on hand during the hearing to ensure the appropriate security arrangements are in place?
If you are holding appeal hearings by telephone, how can you verify that it is the appellant joining the call and can you ‘lock’ the call to prevent anyone else from accessing it? What steps should you take to ensure there is appropriate security in place if you need to share appeal information with the parties and the panel by electronic means as sending unprotected attachments by email opens up the risk of a data security breach? In light of all these issues, it is advisable to carry out data protection impact assessment which should help you to identify any areas of weakness from a data security point of view.
Must the appeals panel consist of a chair and at least two other panel members?
Yes and no. At the outset of a panel hearing, there must be a chair and at least two other panel members (in accordance with paragraph 1.5 of the Appeals Code). If during the panel hearing one panel member withdraws due to a reason relating to the incidence or transmission of Covid-19, then the New Regulations allow for a panel of two to continue to consider and determine the appeal.
A clerk will always be required during the admission appeal process so if the clerk who is originally appointed is unable to continue, a replacement will be required.
What should the clerk do if a panel member withdraws?
The clerk should note in the records of the proceeding why the panel member withdrew, and that the proceedings from that point on had two panel members.
What happens if it is the chair who withdraws?
The admission authority or the clerk must appoint a panel member to be the chair.
How is a decision to be made if only two individuals remain on the appeals panel?
The decision must be made by simple majority vote, with the chair having the casting vote.
What if more than one member withdraws leaving a panel of fewer than two members?
A new panel should be appointed so that it is constituted in the normal way, i.e. it is a panel with at least 3 members and is in compliance with paragraphs 1.5 and 1.9 of the Appeals Code. A part-heard appeal must be reheard.
Has there been a relaxation of training requirements in respect of panel members?
No. The panel members and the clerk must still have at least the minimum standards of training required as per paragraph 1.5 of the Appeals Code in order to take part in the hearing. This is the case whether the panel hearing is held by telephone or video conference, or based on paper. We can provide online training to admission authorities, panel members and clerks if required.
Do the New Regulations introduce any additional training requirements?
Yes. Admission authorities must ensure that the panel and the clerk fully understand the New Regulations, the accompanying guidance and how the appeals process works under the New Regulations. As mentioned above, we can assist with delivering this training to clerks and panel members via video conference. Please contact 0345 070 7437 or schoolsupport@wslaw.co.uk for more details.
From a practical point of view, it will be important that the panel members and the clerk are trained on how to use any video or telephone conferencing facilities and consideration should be given as to whether IT support will be needed to administer the appeals. It will also be important that appellants have clear instructions about how to access the appeal hearings remotely and consider whether technical support should also be made available to them. It will be advisable for clerks and appeal panels to build in some time to allow for technical difficulties when preparing the timetable for appeals.
What changes have there been to the appeal timetables?
The New Regulations remove any reference to ‘school days’ when calculating the timescales for dealing with admission appeals, providing more flexibility for admission authorities to set new or revised deadlines for submitting an appeal. This means that appellants will be given:
- at least 28 calendar days’ written notice of a new appeal deadline;
- at least 14 calendar days’ written notice of an appeal hearing (although appellants can waive their right to this).
Admission authorities must review the deadlines for lodging an appeal which were included in any decision letters sent to parents after 28 February 2020 where that deadline does not comply with these new requirements, for example, where they contain references to school days or are otherwise unclear, unless:
- the existing appeal deadline has already expired; or
- an appeal has already been lodged.
Therefore, if an admissions authority sent out offer letters with the normal appeal deadline (as set out in the Appeals Code), they should write to parents to inform them of the revised deadline for submitting an appeal i.e. it must be at least 28 days from the date of the notification of that deadline, expressed by reference to a fixed date or calendar days, rather than school days. The parties to an appeal will also need to be told how the appeals process will be carried out, including how appeals will be conducted and the expected timescales for each part of the process.
The admission authority must notify potential appellants of the new deadline within 28 days of the New Regulations coming into force, or within 7 days of a decision letter which does not meet the new requirements relating to deadlines, whichever date is later.
The admission authority may also set new or revised reasonable deadlines for both the submission of evidence and the submission of appeal papers to the appeal panel and the parties.
All deadlines for appeals must be arranged as soon as possible, and decision letters should be sent within 7 calendar days of the hearing, or in the case of an appeal conducted on the basis of written submissions only, within 7 calendar days of the appeal panel making their decision, wherever possible.
There will be a lot of work for clerks to undertake in order to arrange and co-ordinate appeals under the new procedures so it is possible that appeals will take place later than usual and some appeals may drift into the summer holidays. The guidance issued by the Department for Education states that appeals should be determined before the start of the September term “wherever possible”.