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Wednesday, 15 April 2020 18:35

School Appeals and Coronavirus: Part 3

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Note: This article has been overtaken by School Appeals in Kent & Medway, and Coronavirus: Part 4 which explores implications of the new emergency regulations. 
Update: 23/4/20: See new article that also looks at HTAs in Grammar School appeals. 
The government has now issued further guidance to Local Authorities and Admission Authorities relating to school appeals during the Coronavirus crisis. It is broadly consistent with my previous article which has been widely read and triggered enquiries from across the country, although to clarify I have no official status and am unable to interpret government advice with inside information. That article also offers advice to families offered an appeal hearing which considers written material.
The guidance does differ from a view in my previous article by giving priority to appeals held in person, by telephone, video conference and playing down the written evidence option which I anticipate will be widely used in Kent an Medway (explained below). The latter should only be considered if appeals cannot be held in person due to social distancing and then only if not everyone has access to the necessary equipment or  appellants are unable to participate in a hearing by telephone or video conferenceIn practice, I consider the great majority of Kent and Medway appeal hearings will fall into the written information category, given the large number of appeals for some Kent and Medway schools, as well as the added complexity of those for grammar school places. This may well be different from many other parts of the country, where numbers of appeals for individual schools ma\y be far fewer. 
I have previously discussed the issues surrounding the video conferencing and telephone hearing approach, and the government advice does nothing to dispel my concerns for local families if this approach were to be adopted. 
You will find plenty of data on school appeals in general here
Quotations from the Government Advice are in Blue
The key paragraphs are:
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.
However, in line with the School Admissions Appeals Code, where an appellant fails, or is unable, to take part in the hearing, and it is impractical to offer an alternative date, the appeal may go ahead and be decided on the written information submitted. Where that happens, the appeal panel must take steps to ensure that the parties are able to fully present their cases, and be satisfied that the appeal is capable of being determined fairly and transparently. 
Last year, 23 Kent and Medway schools held more than 50 appeal hearings. These were headed up by: Chatham & Clarendon and Dartford grammar schools both with 130 appeals heard, Oakwood Park 128, and Maidstone Girls and Wilmington Boys with 114; together with non-selective Valley Park with 95, Brompton Academy 85, Fulston Manor 81, and St George’s CofE (Broadstairs), 74.
Hearings decided by Conference Call
The expectation that the clerk for each of these panels has the capacity and authority to be able to contact that number of parents and panel members, to set up a conference call and explain the procedure which will be a completely new concept for the majority is completely unreasonable. The clerk has to 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. I suppose this could be done by asking the question in writing but is highly likely to simply elicit a large number of negative responses, or else it could make families feel pressured to accept. The alternative is to discuss the situation with each concerned family individually by telephone. 
Of course all this is to happen whilst schools are closed through the Coronavirus crisis, so administration, computer access and other support can be very difficult or impossible in some cases.
Certainly, many families will be comfortable with the Conference Call but this would clearly bestow a considerable advantage on those who, for instance, use conferencing professionally.  It will certainly leave too many families discriminated against if the Panel attempts to treat families differently by considering some appeals in writing. I have worked with too many disadvantaged and ethnic minority families in the past to believe otherwise.
Hearings Decided by Written Information Submitted
The guidance does not actually give advice on what happens if not everyone has the necessary equipment or if a number of appellants are unable to manage conference calling. It is clearly grossly unfair if some appellants are able to appear personally by video to the Panellists, and others are deprived of this opportunity and so have their cases considered by writing submitted.
I would expect any Panel faced with this situation to consider all appeals in the same way, which leads straight on to managing all cases based on the written information submitted, even though it is not explicitly authorised (reminder, I am not a lawyer). My previous article gives considerable advice to families on the written material to be submitted.
Stage One of the Two Stage Appeals Process
The one additional item I wish to look at here, is what is called Stage One of the Two Stage Appeals Process (Page 15 of the School Admissions Appeals Code).  I mentioned this briefly in my previous article, but it is a significant matter and, I don't believe simply resolved. One of its requirements is: The panel must then decide whether the admission of additional children would prejudice the provision of efficient education or the efficient use of resources. I would expect many Panels will conduct a variant of Group Appeals, explained here. I suspect different Admission Authorities will devise their own way of managing this, given that they need to set up a system for panellists and families to be able to question the school Presenting Officer. In any case, every appellant will be sent the case for the school enabling them to ask ask those questions about it.  I will update this section as I learn how this is to be done!
Other Matters
The government guidance states: We will publish guidance to support admission authorities and local authorities in carrying out admission appeals over the coming months to provide further details on these regulations. By a couple of months time, Panels should be part way through the appeals timetable. Further detail on the regulations will be too late for those appeals that have happened and probably those that have been set up.
We will not be relaxing any of the requirements on clerking and our accompanying guidance will reinforce the importance of training, following correct procedure and ensuring fairness.
There is a certain amount of unfairness in this requirement itself, with accompanying guidance still to come. Relevant panel training, especially for appeals heard by conference call, will necessarily rely on this guidance and is a statutory requirement. I suspect that some panellists will be unable or unwilling to participate in Conference Calls. I am sure that all clerks will work hard to try and ensure correct procedure is followed, but there will inevitably be failings.
This emphasis will encourage too many unsuccessful families to take up the complaints procedure. My almost final thought is for the poor clerk who, as the guidance makes crystal clear, is responsible for the Panel following correct procedures. Just in case: Yes, it is important that parents are able to lodge a complaint if they have evidence of maladministration. We will not be relaxing any of the requirements set out under Section 5 of the School Admissions Appeals Code which covers complaints about appeals. However, it is important to recognise that such complaints will only be upheld where there is injustice caused by such maladministration.  Whilst the last set of data I obtained was several years ago, just 6 out of 234 complaints about academies nationally  were upheld, and none in Kent or Medway out  of  25.
The guidance appears to place tremendous responsibility upon the clerk, whereas this should surely lay with the Admission Authority which can be the school itself, or the Local Authority for maintained schools. 
I have written before that whatever procedures are adopted to meet this emergency situation will inevitably be unfair to many families, especially from the disadvantaged sector but, given the situation the Written Information Submitted hearing is surely the fairest way forward in most cases.. 
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