The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 ('2020 Regulations') were brought in last year to assist admission authorities in overcoming the practical difficulties of holding admission appeals during the pandemic. The 2020 Regulations were due to expire on 31 January 2021, however the Government has confirmed that they will now be extended until 30 September 2021.
The 2020 Regulations amend certain sections of the School Admissions (Appeals Arrangements) (England) Regulations 2012 ('2012 Regulations'). They apply to all admission authorities (including academy trusts, via their funding agreement) and local authorities.
In essence, the 2020 Regulations protect the parental right to appeal against an admission authority's decision to refuse admission during the pandemic.
The 2020 Regulations currently apply to all appeals lodged up to and including 31 January 2021. It has been confirmed that this will be extended to all appeals lodged up to and including 30 September 2021, when new regulations are passed extending these dates.
The 2020 Regulations introduced the 'coronavirus exception', a condition which applies where, for a reason related to the incidence or transmission of coronavirus:
Where the 'coronavirus exception' applies, two main aspects of the pre-existing requirements for admission appeals hearings are relaxed, as set our below.
The 2012 Regulations and the Appeals Code require an admission appeal panel ('AAP') 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 AAP is required to postpone until their return, or appoint a replacement and then rehear the appeal.
Since the 2020 Regulations came into force, in circumstances when the 'coronavirus exception' applies, due to Paragraph 1 in Schedule 2 of the 2020 Regulations, two people on the AAP 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 AAP, the admission authority must appoint (or arrange for the Clerk to appoint) one of the remaining members of the AAP as the Chair.
Again, in circumstances when the 'coronavirus exception' applies, Paragraph 2 in Schedule 2 of the 2020 Regulations enables AAPs to hold appeal hearings by remote access or, as a last resort, to decide admission 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 appeal hearing by electronic means, including by live audio and/or live video link.
In deciding whether to hold an appeal hearing by remote access or, as a last resort, on the basis of written information, Paragraph 2 of Schedule 2 of the 2020 Regulations sets out the necessary considerations that will apply in coming to the decision on the appropriate 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."
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 AAP 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.
When the 'coronavirus exception' applies, Schedule 2 of the 2020 Regulations provides for new timescales to apply.
The time limits are detailed, and are not reproduced in full in this article. Essentially, all the 2020 Regulations do is replace the original time limits with the same time limits, but stated in calendar days instead of school days (eg 20 school days becomes 28 calendar days). Crucially, however, this now means that school holiday periods which were not previously counted will now count.
Admission authorities and local authorities should review the time limits carefully.
Admission authorities and local authorities must continue to consider whether the 'coronavirus exception' applies in respect of admission appeals. At a time of national lockdown, this is a straightforward decision to record, but this may become a more detailed consideration as lockdowns are gradually lifted/a tier system is reintroduced.
Admission authorities and local authorities will need to consider the most appropriate format for each admission appeal hearing in accordance with the rules and the considerations set out above.
We recommend that the reasons for decisions are carefully recorded, with a statement confirming why the 'coronavirus exception' is deemed to apply, 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 panel members in accordance with Paragraph 1.10 of the Appeals Code remain in place. This 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.
Over the past year, many of us have become conversant with the use of different platforms for holding virtual meetings and hearings. As part of the review of the requirement for panel members' mandatory training, we also suggest that admissions authorities and local authorities consider whether their panel members should also undergo training on conducting appeals by remote access, as well as on the basis of written information. Again, records of training should be maintained for use in the event of subsequent legal or other 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 compliant, even in circumstances where they choose to outsource these to local authorities or commercial providers.