Please find below a list of questions which were asked by school delegates at our recent webinar on Admission Appeals during the coronavirus outbreak, along with our answers.
The Appeals Code states at Paragraph 1.12 that one of the Clerk's roles is that they must keep an accurate record of the proceedings. Para 2.26 states that the Clerk must ensure that an accurate record is taken of the points raised at the Appeal Hearing, including the proceedings, attendance, voting and reasons for decisions. These notes and records of the proceedings must be kept securely by the Admission Authority for a minimum of two years. The new guidance states that the Clerk must keep an accurate record of proceedings, but does not prescribe or give options for the format.
Our view is that the Appeal Hearing itself may be recorded with the consent of all of the parties involved, providing that other aspects of Appeals Code are not contravened (such as 2.15 'Admission Authorities must ensure that appeal hearings are heard in private except in the first stage of grouped multiple appeals').
Careful thought would need to be given as to whether the Admission Panel's deliberations should be recorded, which would mean that this aspect of the proceedings would have accurate detailed minutes. Para 2.27 of Appeals Code expresses the view that notes and records will, in most cases, be exempt from disclosure under the Freedom of Information Act 2000 and the Data Protection Act 1998 (now the GDPR and Data Protection Act 2018). However, we do not necessarily agree with this view, as this would depend on whether there is a lawful basis for refusing disclosure under that legislation. We therefore recommend that Admission Authorities seek legal advice in this respect.
Admission Authorities should also note that recordings and notes will be disclosable under the duty of candour in civil proceedings (including during the pre-action stage) under the Civil Procedure Rules.
The guidance state that, in line with the new regulations, where a face-to-face Appeal Hearing is not possible, the Appellant should be offered an Appeal Hearing by remote access (ie telephone or video conference) wherever possible.
In our view, it may be possible to have a mixture of parties joining their Appeal Hearing by video and telephone, providing that the three mandatory conditions are satisfied throughout the hearing, and all of the parties have agreed in advance that they wish to proceed by way of one or the other. We recommend that the Clerk makes regular enquiries of the various participants during the course of the Appeal Hearing to ensure that the three mandatory conditions continue to be satisfied.
While the mixed participation model may prove more expedient overall, there is a risk that an unsuccessful Appellant may challenge the mixed format as an unfair process.
The new regulations envisage that, wherever possible, the Appellants will be offered an Appeal Hearing by remote access (ie video or telephone), and it is only where the three mandatory conditions are not satisfied that a Written Information Appeal process will apply. Admission Authorities should therefore make this clear in their communications with parents, and will then need to carefully consider the reasons put forward by Appellants for requesting a written information appeal only, to establish whether one or more of the conditions are not met.
The guidance suggests a five-stage process (see (a) to (e) below) for Written Information Appeals which will assist Admission Authorities in demonstrating that a fair and transparent process was followed.
a) The Clerk should contact the Appellant and Presenting Officer, in line with the revised timetable. The Presenting Officer should be provided with a copy of the appeal and grounds lodged and asked to submit the Admission Authority’s arguments and evidence. The Appellant should be given the chance to submit additional evidence, if they wish. All submissions should be in writing – preferably by email but, where this is not possible, by post.
b) The Panel and Clerk should meet via a telephone or video conference to consider the submissions and formulate questions for the Appellant and Presenting Officer. The aim should be to clarify points made and solicit further relevant information. They should bear in mind that Appellants, in particular, may be less familiar with the kind of information and arguments that are required, and may have less experience preparing written submissions.
c) The Clerk should send the questions and all documents/submissions to each of the parties, so that the Presenting Officer’s submission are sent to the Appellant with a list of all questions for each, and vice versa.
d) Both parties should reply with answers to the questions, and any further points they wish to make. On receipt, the Clerk should send each party’s submission to the other party. The parties should be informed that any information or evidence not submitted by any deadline set for submitting evidence might not be considered by the Panel.
e) The Panel should meet by telephone or video conference, with the Clerk, to consider all the information and reach a decision in the same way as prescribed in the Appeals Code.
The new regulations provide that Admission Authorities may set their own new or revised reasonable deadlines for submission of evidence and for the Clerk to circulate the documents/submissions to the Panel and the parties. These deadlines may take account of the particular circumstances of each appeal. We recommend that all parties are notified of these deadlines as soon as is reasonably possible.
The five-stage process set out above should be followed, with the Clerk first establishing with the Appellant whether they have a Legal Representative. If so, the Clerk should communicate with the Representative as well as the Appellant at each stage. The set deadlines should remain the same, unless an adjustment is made in the interests of fairness.
If the Chair has had to withdraw and will not be returning, the new regulations state that the Admission Authority must appoint (or arrange for the Clerk to the Panel to appoint) one of the remaining Panel members as the Chair.
This is a very good question, as this will present a particular challenge for Admission Authorities in ensuring that the appeals process is fair to all Appellants.
Paragraph 2.18 of the Appeals Code states that where more than one Panel has to consider appeals for the same school, each Panel must make its own decision independently. Therefore, the decisions made by one Panel should not have a bearing on the decision taken by the second Panel.
However, the Appeals Code provides that, in certain circumstances when dealing with multiple appeals, the Panel has to balance the arguments/compare cases between individual Appellants before deciding which appeals will be successful, and which will not. Clearly, in these circumstances, if the appeals are split between two separate Panels, those dealt with by the first Panel would obtain an advantage, as the second Panel would clearly need to be provided with updated place information following those appeals, which would directly impact on their decisions in respect of the appeals heard later.
In view of this, we strongly recommend that Admission Authorities use their best endeavours to ensure that all appeals are heard by the same Panel, even if they will need to be heard over two or more days. This will mean that the same Panel will then be able to balance the arguments/compare cases in respect of all appeals on the last day, ensuring that all appeals have been dealt with fairly and equally, and reducing the risk of successful legal challenge.
The new regulations do not change the statutory requirements of the Appeals Code in respect of the two stage decision making process for appeals as set out in Sections 3 and 4. All representations made by Appellants must be considered by the Panel, including those relating to the coronavirus pandemic, against the context of the relevant two stage process.
It will be for Appellants to demonstrate the relevance of their submissions, and Panel's to determine what weight to attach to them.
We have no knowledge of this happening, or being proposed, at this time. We are aware that Courts and Tribunals are listing their own hearings via remote access, which do not require the parties to attend a Court or Tribunal building, and this would suggest that they would not permit other people to attend their buildings for a different purpose while social distancing restrictions are in place.
If Admission Authorities are made aware that an Appellant does not have access to a reliable computer or telephone service, they will need to consider what arrangements they can make to overcome this barrier in safe and compliant manner (for example, by providing a laptop or tablet on a temporary basis).
Paragraph 2.9 of Appeals Code states that the Admission Authority must supply the Clerk to the Panel with all relevant documents needed to conduct the Appeal Hearing in a fair and transparent manner. This must include details of how the school's admissions arrangements and the Local Authority's co-ordinated admissions scheme was applied to the Appellant's application, the reasons for the decision to refuse admission, and an explanation as to how admission of an additional child would prejudice the provision of efficient education to pupils, or the efficient use of resources.
At the time of these Admission Appeal Hearings, we think that it unlikely that the Government will have published guidance for a September re-opening, or to have issued either a temporary closure or continuity direction to schools under schedules 16 or 17 of the Coronavirus Act 2020. With this in mind, we believe it would be difficult for Admission Authorities to attempt to predict the impact of the coronavirus pandemic in September, and seek to rely on this to demonstrate prejudice for this purpose. This may, in fact, open to the door to legal challenge.
We recommend that Admission Authorities draft their statements strictly in accordance with Paragraph 2.9, as set out above.
Yes, but this only applies where the refusal letter was sent after 28 February giving previous timescales, and where no appeal has already been lodged/the deadline has not already expired.
The re-issued letter must be sent by 22 May 2020, or within 7 days of the date of the original letter. The deadlines re-start from the date of the re-issued letter.
This is a perennial problem. Clearly, this challenge will become even more apparent with Appeal Hearings by remote access, and particularly with Written Information Appeals.
We recommend that careful thought is given to communications with Appellants both prior to and during Appeal Hearings, in order to assist them. Extra time should be planned in the process to ensure that there is time for misunderstandings to be resolved, to enable Appellants to participate as fully as possible and to ensure that hearings are conducted fairly.
We would reiterate that the default position is that all Appeal Hearings should take place via remote access, and that it is only when one or more of the three mandatory conditions are not met that a Written Information Appeal may take place. Efforts should be made to facilitate remote access (for example, by loaning electronic equipment).
In any event, a decision to hold a Written Information Appeal must be made by a Panel, not an Admission Authority. This is set out in Schedule 2 Section 2 (1) of the new regulations which state that a Panel may decide to hold an Appeal Hearing using remote access where the 'coronavirus exception' applies and the three mandatory conditions are met:
a) the parties are able to present fully present their case
b) each participant has access to electronic means to allow them to hear and be heard and (where using a video link) see throughout the appeal hearing
c) the Panel considers that the appeal is capable of being heard fairly and impartially
Where the three conditions are not all met, then Schedule 2, Section 2 (2) states that the Panel may make its decision on the appeal based on the written information submitted. The guidance adds detail in this respect by stating that, in order for the Panel to make a decision which is fair and transparent, they must ensure that the parties are able to fully present their case by way of written submissions.
There is not a prescriptive answer to this question. However, if arrangements are in place for documentation received to be circulated immediately, and all parties (including Panel members) are aware in advance that they are likely to receive documentation within two days of the Appeal Hearing (and did not raise concerns in this respect), we do not consider that this would present an issue.
The overriding principles governing all appeals are procedural fairness and natural justice. The timetable set must take account of any difficulties that Appellants may face, and any reasonable adjustments that will need to be made under the Equality Act 2010.
The Appeals Code states at Paragraph 2.10 that a Panel must decide whether any material not submitted by the specified deadline is to be considered, taking into account its significance and the effect of a possible effect of a possible need to adjourn the hearing.
We would advise Panel's decisions should be made with reference to the above considerations. However, decisions to exclude an Appellant's submissions because they were submitted late should be avoided wherever possible, as to do so is likely to open the door to legal challenge.
Where an Appellant loses connection to a remote access Appeal Hearing and, in spite of reasonable attempts to help them re-join, this has not be possible, this would mean that the three mandatory conditions required for holding an Appeal Hearing by remote access are no longer satisfied. In these circumstances, the Appeal Hearing would need to be adjourned.
Enquiries will then need to be made of the Appellant as to the viability of rescheduling the Appeal Hearing via remote access again, or proceeding to a Written Information Appeal.
In our view, the same would apply to a situation where the Appellant did not 'turn up' to the remote access Appeal Hearing, as this may of course be because they tried but were unable to connect via remote access. Enquiries would still need to be made.
It is important to note that a Written Information Appeal follows a separate process to an Appeal Hearing by remote access.