Coronavirus (COVID-19) New admission appeal regulations

New regulations (The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020) (“the regulations”) have come in to force as of Friday 24th April. The regulations relax the requirements in the School Admission Appeals Code 2012 in relation to holding Independent Appeal Panels (“IAPs”) for school admissions. The regulations are time-limited and will (subject to review and any further amendment) expire on 31 January 2021. This note is relevant to any Academy Trust or Governing Body (depending on the type of school) who run their own admission appeals process.

At the outset it should be noted that the right of parents to appeal any refusal of a school place remains. However, in light of the current restriction on gatherings of more than 2 people, the regulations make necessary changes to allow that process to continue in a modified format.

The regulations apply to admission appeals which are lodged:

  1. On or after 24th April 2020 but on or before 31st January 2021;
  2. Before 24th April 2020 but where the appeal has not been fully determined on or before 24th April 2020

The regulations make 3 significant changes, as follows:

  1. The requirement that IAPs are held in person are relaxed;
  2. The rules regarding what happens if one of the 3 panel members withdraws (temporarily or permanently) have been relaxed to allow for the IAP to continue with and conclude the appeal as a panel of 2;
  3. The deadlines relating to appeals have been amended for the duration of these regulations being in force.
Hearings

The regulations provide that:

An appeal panel may [for a reason related to the incidence or transmission of coronavirus] decide to hold an appeal hearing using remote access provided:

  • the parties are able to present fully their case;
  • 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
  • the panel considers that the appeal is capable of being heard fairly and transparently.

Where any of the above conditions are not met, an appeal panel may make their decision on the appeal based on the written information submitted. In which case 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.

Remote access” means “access to an appeal hearing to enable those who are not all present together at the same place to attend or participate simultaneously in the hearing by electronic means, including by live audio and live video link.”

Related DfE guidance on the topic here states:

If appeals cannot be safely heard in person due to social distancing measures, the clerk should contact all parties and explain the temporary arrangements for appeals. The clerk should establish whether everyone has access to the necessary equipment and that the appellant is able to participate in a hearing by telephone or video conference.

All of this means that admission authorities should consider very carefully the approach that they take to organising IAPs in the current circumstances. It is unlikely that a blanket approach to how hearings not in person are conducted will meet the ongoing requirements for following the correct procedure and ensuring fairness.

Panels

Where one or more members of an appeal panel has to withdraw (for a reason related to the incidence or transmission of coronavirus) from membership of the panel, the appeal panel may continue to consider and determine the appeal provided there remains a panel of at least two members (the requirement that the IAP is constituted of at least one lay member and at least on experienced in education, is disregarded)

Where this exception is applied and the member withdrawing is the panel Chair, the admission authority must appoint (or arrange for the clerk to the IAP to appoint) one of the remaining members of the panel as the Chair.

Therefore, admission authorities should be alive to the potential for an IAP member to have to take the responsibility of Chairing appeals. Paragraph 2.23 of the School Admission Appeals Code is relevant here: “Panels must ensure that appeals are decided by a simple majority of votes cast. Where votes are equally divided the panel chair has a second or casting vote”

Deadlines and time limits

The key changes here are:

  • the deadline for an appeal to be lodged is changed from a minimum 20 school days to 28 (calendar) days;
  • the required written notice of appeal hearing is changed from 10 school days to 14 (calendar) days; and,
  • the appeal decision letter is to be sent out within 7 (calendar) days of the hearing “wherever possible”, replacing the previous “five school days, unless there is good reason”.

The new regulations also allow that:

  • An Admission Authority may (but does not have to) set new or revised reasonable deadlines for-
    • an appellant to submit additional evidence;
    • the admission authority to submit their evidence; and
    • the clerk to send relevant appeal papers to the appeal panel and the parties.
  • All appeals which have been lodged, whether in time or not, must be heard and determined by an appeal panel as soon as reasonably practicable.

Therefore, Admission Authorities should review their published appeal timetables to take account of calendar rather than school days. Further detail on how Admission Authorities should fulfil these requirements are set out below:

Deadlines for appeals from the date of an admission decision (i.e. a refusal of a place) being sent must be:

  • at least 28 days from the date of the notification of the admission decision, and
  • expressed by reference to a fixed date or a number of calendar days. (“the new requirement”)

Where an admission decision sent after 28th February 2020 contains a deadline for an appeal that does not meet the new requirement, the admission authority must review the existing deadline for the appeal where:

  • no appeal has already been lodged in response to the admission decision,
  • the existing deadline refers to school days, or the admission authority otherwise considers that the existing deadline is unclear in all the circumstances; and
  • the existing deadline has not already expired.

and set a new deadline for the appeal which must meet the new requirement.

Where a new deadline has been set in accordance with the new requirement, notification of the new deadline must be sent to the recipient of the original admission decision within 28 days of 24th April 2020 or seven days from the date of an admission decision which does not comply with the new requirements.

The Authority which sent the relevant admission decision (whether the Admission Authority itself, or a Local Authority on the Admission Authority’s behalf) must send the notification of the new deadline. The latter only applies once the Local Authority has been informed of the new deadline by the relevant Admission Authority.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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