The government has outlined plans to permanently allow school admissions appeals to be heard remotely and for decisions to be made by two-person panels where required.
These two measures were introduced during the pandemic to allow admissions appeals to continue when panels could not meet in person with parents and when there was an increased chance of a member of a panel being taken ill, which could have delayed decisions.
Now, in a new consultation document outlining its rationale for wanting to make these two changes permanent, the Department for Education says that 41,110 appeals were heard with these measures in place in the 2020-2021 academic year, of which 7,823 were successful.
“The flexibilities provided by the temporary regulations have been essential to enable so many appeals to continue during the Covid-19 pandemic and these figures demonstrate how well local authorities and other admissions authorities have adapted to hearing appeals remotely,” it says.
As such, the DfE has proposed making these measures permanent, effective from 1 October, after the current emergency legislation expires.
Proposed changes to school admissions appeals
Two-person panel decisions
With regards to the move to allow two-person panels to rule on any admissions appeal, the consultation says panels would still have to start as three people but could “continue with and conclude” as two if required.
It says this will not only streamline the process for schools and parents but also remove the additional costs to admission authorities, schools and panels by removing the need to find a replacement panel member.
Notably, though, this would mean that if the two remaining panel members disagreed on the appeal outcome, the decision would lie with the chair of the panel.
Fiona Scolding QC, a public law barrister with expertise in education law, says this is something she thinks should only happen in ”exceptional circumstances” and should not become a matter of routine, as three-person panels offer more “balance”.
Meanwhile, Laura Berman, a partner at Stone King, adds that this change “may not be welcomed by parents on the face of it” because of the risk of a single person being responsible for any decision.
However, she notes that the wording in the proposed new code is open enough so this will probably only happen very rarely.
Specifically, she says that it states that a two-person panel “may” be used to reach a decision if not doing so would mean an “unreasonable delay” - words that she says are open to interpretation.
“What does ‘unreasonable delay’ mean? What is unreasonable to one may not be the same as to another,” Berman says.
“It may be that a parent can be given the choice between proceeding with a two-person panel in the knowledge that if these panel members disagree, the chair will effectively make the decision, or waiting for a replacement panel member, however long that may take.”
So Berman thinks it is “unlikely” that two-person panels will make decisions very often - a point echoed by Richard Freeth, a partner at law firm Browne Jacobson.
“The issue of carrying on appeals where the panel is reduced to two members will be a rare occurrence. I have not had a panel member have to withdraw from an appeal for any reason in over 20 years of advice and support on admission appeals,” he says.
However, having the option to move to a two-person panel if required is something that Tomas Thurogood-Hyde, assistant CEO of Astrea Academy Trust, says is welcome, because it would “offer more flexibility for panelists and parents” and reduce the time schools may have to wait for outcomes.
“For schools that have multiple appeals, which can run over a number of days, ensuring that panels can carry on with two of their number is an important safeguard for families who need certainty about where their child will go to school,” he adds.
Kulvarn Atwal, executive headteacher of two large primary schools in the London Borough of Redbridge, also thinks that this will be a good option to have in the system.
“As long as the two members have the relevant expertise, the changes should support students getting into the right school as soon as possible,” he says.
Remote hearings
Meanwhile, with regard to the proposed change to allow remote hearings to be used when required, the DfE says admissions authorities, local authorities and appeals clerks say that this change in the pandemic has improved the process for parents and schools.
“The arrangements were enabling parents to more easily access the appeals system without, for example, having to take significant time off work and/or incur any other additional costs, such as arranging additional childcare,” it says.
“Admissions authorities also reported a significant drop in the number of hearings where parents had failed to attend.”
The DfE says that continuing with this policy will help all involved in the admissions process - and that any costs incurred by schools to ensure they have the “necessary technology or time spent on providing any additional support” to deliver this in the future will be offset by the benefits.
Freeth says this change makes a lot of sense as the past two years have proved it can work well for schools and parents and legal issues arising from this have been rare.
“In my experience over the last two years, there have not been any significant issues with appeals being held online as both parents and schools have been able to present their cases effectively and for the panels to test the evidence present and make robust evidence-based decisions,” he says.
Berman agrees that the flexibility of remote hearings has been something both schools and parents have welcomed but notes that, under this new system, there will be new issues to consider to ensure that appeals can be heard “fairly and transparently”.
“In doing so, [admissions authorities] must be satisfied the parties will be able to present their cases fully and that each participant has access to video or telephone facilities allowing them to engage in the hearing at all times,” she says.
Thurogood-Hyde says it is important to keep this in mind because not all parents will necessarily have access to technology or be comfortable using it.
“Panels will need to be vigilant to ensure that digitally disadvantaged families are not put at a further disadvantage where this format is applied,” he says.
Scolding agrees. “Steps must be taken to ensure that those who find remote technology challenging or have particular needs are not excluded from this process,” she says.
“There must be a way in which those individuals can continue to access in-person hearings where their particular needs or circumstances require it.”
Future reform ‘needed’
Overall, Thurogood-Hyde says that while these changes are welcome, the admissions system as a whole needs further reform given that “the vast majority of appeals fail” and it takes up time and moneyi n schools that could be better spent on providing for current pupils.
He says there is a long list of things that need to be looked at in the future. “Requiring specific grounds for appeal, introducing a sifting stage and allowing admissions authorities’ own governors to review appeals, just as they do exclusions, would greatly simplify and improve the system,” he adds.
Consultation responses to the proposed changes can be made until 3 April.
