Revised admissions appeals procedure approved

Article by Naomh Gibson

As per our earlier article, the Government has now updated their guidance on how primary and secondary schools should organise and run their pupil admissions appeals in light of COVID-19. The updated guidance is publicly available online (here).

As of 24 April 2020, temporary changes have been made to the School Admission Appeal Regulations 2012 in order to accommodate appeals during this unprecedented public health crisis. The emergency regulations are called the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020, which gives effect to these temporary amendments, and will remain in force until 31 January 2021.

The temporary regulations only apply to appeals lodged between 24 April 2020 and 31 January 2021, unless you lodged an appeal before 24 April which has not yet been decided. It is anticipated by DfE that by 31 January 2021, there will no longer be a need for temporary regulations, however to avoid the expiry of the measures from prejudicing any appeals that are already in progress on this date, the temporary regulations will still apply as long as the appeal was lodged between 24 April 2020 and 31 January 2021.

The temporary regulations take precedence over the Appeals Code if there is a conflict between the two. Much of the usual appeal admissions procedure remain in place, with the general scheme of amendments being to allow for more generous timeframes and greater flexibility on panel quorum to avoid adjournments or delays.

For example, usually when a panel member withdraws from a panel of 3 members, proceedings must be postponed until the return of that panel member, or a replacement must be appointed, and the appeal reheard. However, where COVID-19 has meant this is not reasonably practicable, the temporary regulations allow a panel made up of at least 2 members to continue to consider and determine the appeal.

Further, the admission authority must now allow you at least 28 calendar days to appeal from when they send the decision letter, an increase from the usual 20 school days, and another 28 calendar days’ written notice of any other deadline associated with your appeal. The temporary regulations also mean that admission authorities must review the deadline for lodging an appeal included in any decisions sent to parents after 28 February 2020 where that deadline still refers to ‘school days’, rather than calendar days or a date within that period.

If you have any queries regarding this article, you can contact Naomh’s clerks on 0121 237 6035 or clerks@halcyonchambers.com. Naomh is a first six pupil accepting instructions from July 2020 onwards.

Admissions appeals still going ahead subject to revised procedure

Article by Naomh Gibson

While the COVID-19 pandemic rages on and schools currently remain closed, families who have been carefully planning ahead for their child’s education may have received some bad news yesterday. Thursday 16 April 2020 marked National Primary Offer Day, when primary school places were confirmed for thousands of pupils for the academic year 2020/2021, starting September this year. Applications for primary school places were made before the January deadline, when COVID-19 was for many people an international news item with no relevance to life in the UK.

There is always some movement to places offered following National Offer Days for both primary and secondary schools, as parents accept or reject places. You may find that your preferred choice becomes available within several days due to this re-shuffling. The statistics currently available suggest that the rate of successful applications is down from last year due to an increase in applications in major cities, including Birmingham.

For those who are not able to secure their preference through the waiting list process, they may avail themselves of their statutory right of appeal in accordance with the Schools Standards and Framework Act 1998.

The unprecedented situation has many parents and carers wondering whether they will still be able to exercise this right to appeal. The good news: the Department for Education has announced plans to temporarily relax procedural regulations from 24 April 2020 until 31 January 2021 so that hearings can go ahead despite the lockdown.

Appeal panels are usually held in person, which would break the current restriction on gatherings of more than 2 people. Therefore this requirement has been amended so that the hearings will no longer need to be attended in person, and the panel may be reduced from 3 members to 2 if one member has to withdraw for any reason.

DfE have also relaxed the regulations to allow appeals to be entirely paper-based, as in decided only on what written arguments have been submitted. It is not anticipated this will be a popular substitute compared to remote hearings however due to obligations around natural justice and procedural fairness.

The process therefore will be revised as follows:-

In your rejection letter, you will be advised of the appeals process for that particular school – follow this. You may notice a change from previous years that the admission authority for the school has set new or revised deadlines for appeals to be submitted in certain circumstances.

The admission authority must now allow you at least 28 calendar days to appeal from when they send the decision letter, an increase from the usual 20 school days, and another 28 calendar days’ written notice of any other deadline associated with your appeal.

Use this time wisely to prepare an appeal letter with any evidence you think supports your position. At the earliest opportunity, provide the admission authority with your dates of unavailability and preferred modes of remote attendance, to ensure they do not arrange this when you are not available or by a method you cannot use.

Appellants will now be given 14 calendar days’ written notice of an appeal hearing (although appellants can waive their right to this), an increase again from the usual 10 school days. All deadlines for the hearing of appeals must be as soon as reasonably practicable.

The admissions authority may require some date flexibility in order to secure the attendance of suitably independent panel members, if these individuals are unexpectedly engaged in other key worker duties, caring for a sick relative, or have taken ill themselves. Communicate regularly with the admissions authority’s designated clerk to ensure clarity.

If you fail to communicate with the clerk, or cannot take part in a remote hearing and an alternative date is not practical, the appeal may go ahead and be decided on the written information submitted.

While remote hearings can be daunting, you have the ‘home turf’ advantage of being able to attend the hearing in an environment in which you feel more comfortable. Please see our blog post here which details the technologies commonly used for remote hearings (NB: this guide is written for legal professionals but may still help).

Ultimately, your success at appeal will depend on whether the appeals panel consider: firstly, the school’s admission criteria were properly followed; and secondly, the admission criteria complies with the School admissions code (‘the Code’). The Code is statutory guidance that schools are legally obliged to follow when carrying out duties relating to school admissions. This is publicly available online (here). You may ask the admissions authority to provide you with a fresh copy of the school’s admission criteria if required. 

While the procedure for your appeal has to be altered, the way in which your appeal is decided will not be different; Schools cannot use the current situation as an excuse to unfairly deny your child a place.

To use some common examples, this means a child still cannot be rejected because the admission authority:

  • Took into account any other conditions when considering your child’s application, other than the oversubscription criteria published in their admission arrangements;
  • Took into account any previous schools attended by your child;
  • Gave extra priority to children whose parents ranked their preferred schools in a particular order;
  • Took into account reports from previous schools about your child’s past behaviour, attendance, attitude or achievement;
  • Took into account your older children’s behaviour, attendance, attitude or achievement if they attend(ed) your preferred school.

These procedural changes to the regulations will come into effect, subject to legislation, on 24 April 2020. If you require any further information on the timeline of this legislation, you may contact DfE’s designated coronavirus helpline on 0800 046 8687. Lines are open Monday to Friday from 8am to 6pm and weekends 10am to 4pm.

If you have any queries regarding this article, you can contact Naomh’s clerks on 0121 237 6035 or clerks@halcyonchambers.com. Naomh is a first six pupil accepting instructions from July 2020 onwards.