Allison Cook reviews the government's recently introduced regulations covering school admissions appeals during the coronavirus outbreak, and outlines some key considerations.
The appropriately named School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 ('the new regulations'), are now in force.
The government has also published non-statutory guidance to accompany the new regulations. The regulations amend some sections of the School Admissions (Appeals Arrangements) (England) Regulations 2012 ('the 2012 regulations'). They apply to all admission authorities (including academy trusts, through their funding agreement) and local authorities.
In essence, the new regulations protect the parental right to appeal against an admission authority's decision to refuse admission. The new regulations apply to:
- all appeals lodged before 24 April but not yet determined; and
- all appeals lodged on 24 April and after.
The 2012 regulations will revert back into force in their original form from 1 February 2021, including for appeals lodged before this stop date which have not been determined.
The Coronavirus Exception
The new regulations introduce the 'coronavirus exception', a condition which applies where, for a reason related to the incidence or transmission of coronavirus:
- it is not reasonably practicable for an admission authority or local authority to comply with the requirements of paragraph 1(1) and (2) of Schedule 1 of the 2012 regulations, or paragraph 1.5 and 1.9 of the School Admission Appeals Code 2012 ('SAAC') relating to the composition of the appeal panel ('the constitution reason'), or
- it is not reasonably practicable for an admission appeal panel to comply with the requirement in paragraphs 2.12 or 6.4b) of the SAAC for appellants or representatives of local authorities or admission authorities to be allowed to appear in person ('the appeal in person reason').
What has changed?
Where the coronavirus exception applies, two main aspects of the pre-existing requirements for admission appeals hearings are relaxed.
Composition of the Panels
The 2012 regulations and the SAAC require an admission appeal panel to be constituted with at least three people, comprised of a Chair and at least two other panel members. In the event that one has to withdraw, the panel is required to postpone until their return, or appoint a replacement and then rehear the appeal.
Now, in circumstances when the coronavirus exception applies, due to paragraph 1 in Schedule 2 of the new regulations, two people on the admission appeal panel will suffice for making the determination, regardless of whether they are a lay person or person with experience in education. Where the Member withdrawing is the Chair of the panel, the admission authority must appoint (or arrange for the Clerk to appoint) one of the remaining members of the panel as the Chair.
Appeals in Person
Again, in circumstances when the coronavirus exception applies, paragraph 2 in Schedule 2 of the new regulations enables appeal panels to hold hearings by remote access or to decide appeals on the basis of the written information provided (see regulation 9).
'Remote access' means that individuals who are not all present together at the same place can attend or participate simultaneously in the hearing by electronic means, including by live audio and live video link.
In deciding whether to hold a hearing by remote access or on the basis of written information, paragraph 2 of Schedule 2 sets out the necessary considerations that will apply in coming to the decision on the format for the appeal:
"(1) An appeal panel may decide to hold an appeal hearing using remote access provided—
(a) the parties are able to present fully their case;
(b) 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
(c) the panel considers that the appeal is capable of being heard fairly and transparently.
(2) Where any of the conditions prescribed in sub-paragraph (1)(a) to (c) are not met, an appeal panel may make their decision on the appeal based on the written information submitted.
(3) Where sub-paragraph (2) applies, the appeal panel 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."
- Privacy and confidentiality - There are additional factors to bear in mind when contemplating remote access hearings. These include the requirement for the admissions appeals to be conducted in private, in accordance with paragraph 2.15 of the SAAC. It is worth bearing in mind that some remote platforms are less reliable in terms of security and confidentiality than others. Admission authorities and local authorities should ensure that when offering remote access, privacy and confidentiality is not compromised. It is advisable to read the privacy terms and conditions and ensure that, where possible, any security features are enabled. If you have concerns, you should consult with the IT provider or IT staff for support.
- Equipment - Where appeals are to be heard by telephone or video conference, it is recommended that panel members are only appointed if they have, or can be provided with, the necessary equipment and facilities. This will require a review of what equipment may be needed to facilitate enough panel members being available for the forthcoming admission appeals.
- Reasonable adjustments - There will also be a requirement to make reasonable adjustments for disabled appellants, panel members and all relevant participants in accordance with the Equality Act 2010. People with audio or sight difficulties for example, may struggle with one or other type of hearing, and information relating to their needs and requirements will need to be factored into this decision.
- Multiple appeals - Multiple appeals will also require specific consideration. The SAAC states that these can be held individually or in groups. When multiple appeals are grouped, the Presenting Officer's case is usually heard in the presence of all of the appellants at the beginning of the hearing (or sometime at the start of each day when a hearing runs over a number of days).
Holding grouped multiple appeals offers significant time efficiencies. However, depending on the number of appellants and any reasonable adjustments required for disabled participants, some remote platforms will not offer sufficient capacity to proceed in this way. If there are to be consecutive presentations by the Presenting Officer, the panel must ensure that the Presenting Officer does not produce new evidence in later appeals that was not presented in earlier appeals as this would deny earlier appellants the opportunity to consider and respond to the new evidence.
Deadlines for an admission appeal
When the coronavirus exception applies, Schedule 2 of the new regulations provides for new timelines to apply. These time limits cover every scenario ranging from situations where the admission authority or local authority has already communicated an admission decision to a parent, to those decisions that will be communicated as in-year admissions applications. The time limits also cover appeals involving twice excluded pupils.
The time limits are detailed, and are not reproduced in full in this article. We advise admission authorities and local authorities to review the time limits carefully.
Admission authorities and local authorities will need to first consider whether the coronavirus exception applies. At this time of lockdown, this is a straightforward decision to record, but this may become a more detailed consideration as the lockdown is gradually lifted. Thereafter, admission authorities and local authorities should embark on a review of the number of hearings that are required and consider in accordance with the new regulations the most appropriate format for each hearing in accordance with the regulations and the considerations above.
We would also advise recording the reasons for these decisions, including a statement of why the coronavirus exception applies, as this may be needed in the event of subsequent challenge or complaint.
Consideration must also be given to training requirements. The mandatory training requirements for clerks and for panel members in accordance with paragraph 1.10 in the SAAC remain in place. The training must cover the law relating to admissions; relevant aspects of the Human Rights Act 1998 and the Equality Act 2010; procedural fairness and natural justice; and the roles for particular panel members (for example chairing skills). The Clerk is responsible for ensuring that all panel members have received any necessary training to enable them to fulfil their role.
We suggest that training should now extend to conducting appeals by remote access and on the basis of written information. Again, records of training should be maintained for use in the event of subsequent action by an unsuccessful appellant.
Do remember, the requirement remains for admission authorities to ensure that all aspects of the admission appeals hearings are legally complaint, even in circumstances when the independent appeal hearings are outsourced to local authorities or commercial providers. To assist you with this, we can provide a checklist and telephone advice service. For more information please see our flyer on school admission appeals.