Remote Access/Virtual Meetings and Hearings - What Are the Current Rules?
Since the end of March 2022, there has been a growing sense of confusion as to whether and when it is still permissible to hold remote access or virtual meetings and hearings (ie by telephone or video conference).
As many of you will know, some regulations and guidance were temporarily amended to allow for remote access or virtual meetings and hearings to happen during the Coronavirus pandemic.
In this article, we look at what the law currently allows and the guidance says in this respect.
Suspension/Permanent Exclusion Meetings
The default position was and is that Governors' Discipline Meetings (GDMs) to review Headteachers' decisions to suspend or permanently exclude, and Independent Review Panel Hearings (IRPHs) for reviewing permanent exclusions, must be in person.
During the pandemic, the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (as amended) (Regulations) were amended to provide that, in respect of a 'relevant exclusion' only (which is one imposed between specific dates prescribed in the Regulations) and for a reason linked to Coronavirus, GDMs and IRPHs could be held by remote access, as long as the other prescribed conditions were met.
It is important to note that the Regulations have not been amended to make this change permanent, and GDMs and IRPHs must therefore currently be held entirely in person only, to be lawful.
At the beginning of 2022, the DfE consulted on a proposal to make remote access meetings/hearings permanent, however they subsequently decided against doing so. In the Government response to consultation published in July 2022, the DfE stated:
"Although a majority of respondents agreed that virtual meetings should be made permanent, many respondents who explained their views raised concerns about the use of remote meetings and potential unintended consequences. We will therefore give further careful consideration as to how this proposal impacts certain groups of children and families, including those most vulnerable where a face-to-face meeting may be more beneficial, before taking any further action." [our emphasis added]
It is therefore clear that the DfE made an informed decision not to allow remote access/virtual hearings within the statutory suspension/permanent exclusion process at this time.
Admission Appeal Hearings
Conversely, following consultation on proposed amendments to the School Admission Appeals Code 2022 (Appeals Code), the DfE did choose to make temporary changes during the pandemic permanent by allowing Admission Appeal Hearings to take place "in person or remotely by video conference or a mixture of the two (“hybrid”)"
Paragraph 2.11 makes it clear that hearings held entirely by telephone are only permitted "where video conferencing cannot be used for reasons relating to connectivity or accessibility and if the appellant and presenting officer both agree". Appellants must be given the chance to make oral representations at hearings, and admission authorities (who are responsible for arranging these hearings) must ensure that their wider duties under the Equality Act 2010 are met.
It should be noted that, even where own admission authority schools outsource the administrative arrangements for admission appeals to other organisations (including Local Authorities), it is the admission authority that remain responsible/liable for the arrangements and decisions made.
Paragraphs 2.15 to 2.17 govern remote access and hybrid hearings. Admission authorities must be satisfied that the appeal is capable of being heard "fairly and transparently" by remote access or hybrid, that the parties will be able to present their cases fully, and that each participant has access to video or telephone facilities that will allow them to engage in the hearing at all times.
Paragraph 2.18 stipulates that hearings must be conducted in the presence of all Admission Appeal Panel members and parties, whether in person or remote. One party must not be left alone in the absence of the other, and the Clerk must be present at all times.
Complaint Meetings/Hearings
The law and guidance relating to complaints focuses on the stages that must be included within schools' Complaints Policies, rather than the way in which the complaint is investigated or otherwise dealt with.
As such, there is nothing to prevent investigators from speaking to complainants and witnesses over the telephone or via a video conference during investigations, as long as an appropriate record is made with the date and time noted.
It is open to schools to hold Complaint Panel Hearings by remote access as video conferences. Although technically it is possible to hold these as "hybrid" hearings, our recommendation is that these should be avoided wherever possible, as clearly participants attending in person, by telephone or via video conference will have entirely different perspectives and experiences to each other.
Although there is no specific regulation, the principles of public law/rules of natural justice will still apply, and schools must therefore ensure that the process is fair and transparent, and that all parties are able to see and be seen and/or hear and be heard, and properly engage in the process. Wherever possible, schools should try to accommodate the wishes of parents when making the arrangements, rather than imposing a decision and date/time upon them.
Other Meetings
In respect of other meetings, including those of Governors, Trustees, Members and Local Governing Bodies, it is important to refer to your Articles of Association (for academies), or the School Governance (Roles, Procedures and Allowances) (England) Regulations 2013 (for maintained schools) to ensure that remote meetings comply with the relevant rules.