The DfE Published a New School Admission Appeals Code 2022, Along with an Update on the Admission of 'Summer Born Children'

Separately, the DfE have recently published an update on their previous announcement in respect of the admission of 'summer born children'.

School Admission Appeals Code 2022

The DfE consulted on two key changes to the School Admission Appeals Code 2022 (Appeals Code):

• to permit Admission Appeal Hearings to take place by remote access

• to allow appeals to continue when only two members of an Admission Appeal Panel (AAP) remain in certain circumstances

Having considered consultation responses, the DfE have decided not to go ahead with the proposed change to allow appeals to continue with two AAP members, due to concerns that this could adversely impact on the fairness of the proceedings.

However, the DfE has proceeded with the change to allow hearings to take place by remote access. Paragraph 2.11 states "Admission authorities may make arrangements for appeal hearings to be held in person or remotely by video conference or a mixture of the two (“hybrid”¹¹). Appeal hearings held entirely by telephone are permitted only where video conferencing cannot be used for reasons relating to connectivity or accessibility and if the appellant and presenting officer both agree. Regardless of the forum chosen, appeal panels must allow appellants the opportunity to make oral representations". A 'hybrid' hearing is one with a mixture of attendees in person and remotely.

Paragraph 2.16 provides that, where a hearing is held remotely (including on a hybrid basis), admission authorities "must be satisfied that the appeal is capable of being heard fairly and transparently. In doing so they must be satisfied that the parties will be able to present their cases fully and that each participant has access to video or telephone facilities allowing them to engage in the hearing at all times".

In our experience, in-person hearings will be the 'gold standard' as they ensure that everyone present can be seen and heard in the same way, and with the same perception, thereby ensuring fairness and transparency in the process.

The Appeals Code makes it explicitly clear that responsibility for making the arrangements for appeals rests with the admission authority for the school. A recent Ombudsman complaint decision made it explicitly clear that this remains the case where the admission authority outsources the administration process to another organisation (including a Local Authority). This means that admission authorities should be actively involved in making these decisions, and should retain oversight over all of the arrangements to ensure compliance with the Appeals Code and other relevant law.

Schools should note that the temporary changes put in place during the pandemic which permitted admission appeals to take place remotely, and to continue with only two AAP members, in specific prescribed circumstances linked to the pandemic, will remain in force until 30 September 2022. The new rules come into force immediately after those temporary rules expire.

Admission of Summer Born Children

Back in 2015, former Schools Minister, Nick Gibb, wrote to all schools confirming that legislation would be passed to enable the automatic admission of 'summer born children' (ie children born between 1 April and 31 August) into Reception Year, rather than Year 1, one year later than usual when their parents have exercised their right to delay their entry until they reached compulsory school age.

The DfE has now confirmed in a statement that, due to vast improvements in the way in which Governing Boards deal with requests for admission outside normal age group in respect of 'summer born children', with the majority of requests now being agreed, the proposal to legislate to give parents this automatic right has now been dropped.

To clarify, parents have an absolute right to decide that their 'summer born child' will delay starting school for one whole year until they reach compulsory school age, which cannot be interfered with by schools. The issue at play for the Governing Board is to consider the parents' request for admission outside normal age group to Reception Year instead of Year 1 at that stage.

The question the Governing Board must consider is whether it is in the child's best interests to miss a year and go into Year 1, not whether the Governing Board believes the child should actually start school at the age of 4 rather than 5 years of age, which is a decision only the parents are entitled to make (and will usually have already made). The DfE has made it clear that it will rarely be in the best interests of the child to miss a whole school year and go into Year 1 (even if there was a place available).

If you have a query relating to admission appeals or the admission of summer born children, please contact Joanna Goddard on 020 7665 0805, in our Regulatory Compliance team, or complete the form below.