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Saturday, 25 April 2020 12:44

Coronavirus: School Appeals in Kent & Medway Part 4

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I have now written a further article looking at fresh developments: Coronavirus and School Appeals: Five 

The government has now published temporary regulations for the operation of school admission appeals during the Coronavirus emergency. Not to put too fine a point on it, my personal view is that as set out these are unworkable in Kent and Medway, whose schools held over 10% of all secondary school admission appeals in the country in 2019. The new regulations appear to have been drawn up without regard for the people who matter at this difficult time. Instead, when there was opportunity to be flexible by varying aspects of the non-statutory School Admissions Appeals Code in order to be fair to families, the regulations attempt to force the new circumstances into the existing Code.   

There are three groups of people to consider. Most importantly are the thousands of families, some of whom have spent up to eight months worrying about their children’s futures and all hoping they would get a fair hearing at an appeal which will affect their children’s life chances. Secondly, there are the army of volunteer appeal panellists  who freely give of their time to bring this about, but given no consideration here. Finally, do not forget the shrinking number of administrators whose workload and responsibilities are expanded enormously by the new regulations, but also given no consideration;whose  job is made all the more difficult because schools are closed at this time and access to documentation can be impossible.  

I look in more detail below at the implications for these new Emergency Regulations, mainly as applicable to Kent and Medway.

You will find direct quotations from the new regulations in blue below. Recent updates are in red

This is my fourth article on Coronavirus, Number Three being here, as the format of appeal hearings have clarified with fresh releases of information and regulations. I have also written a recent article on Coronavirus: Kent Test, Grammar School Admission and Appeals 2020 which includes amongst other matters, a look at different aspects of, and fresh problems with, appeals at grammar schools. 

I recognise I am not a lawyer; this being just the view of a practitioner (although with over fifteen years experience of appeals as panellist, trainer and adviser to families)To be clear, this is my personal interpretation, and may well be regarded as controversial in places. No doubt we shall soon hear the legal interpretations of the new rules, but this article is mainly written from a human perspective.. I have conducted an online survey of many Local Authorities and have only found two so far which have taken a position (27/4), Hertfordshire and Northamptonshire County Councils. See update below.  

In Kent and Medway alone, over 3,000 secondary school appeals were heard last year, more than twice as many as any other Local Authority, and over four times as many as the large majority. Initial reports suggest that the number of appeals locally will be significantly higher for 2020. Seven local schools had over 80 appeals each in 2019, with two hearing 130 appeals, many panellists volunteering to hear appeals for a number of schools.  Now the schools are closed, the ranks of administrators depleted through the pandemic and its consequences, and no doubt many volunteer panellists pondering on whether to get involved due to the current uncertainties. In this case a decision to greatly expand the workload for each appeal, as spelled out in the new Regulations, appears foolish in the extreme and shows  a lack of awareness of the job in hand.

In particular the regulations bear down hard on appeals to be decided on the basis of written submissions only, their recommendations detailing an enormous extra administrative burden, surely impossible to deliver without the caveat noted below.    

 Overwhelmingly, the regulations appear to have been written by Civil Servants who regularly use Video Conferencing and clearly assume that the rest of the nation is equally comfortable with it. They make the assumption that appellants and panellists are more conversant with video conferencing than many Members of Parliament and media correspondents at Minister’s briefings, and that they will be using technology that is more effective than either of these. One of my correspondents wrote, ‘everyone is familiar with video conferencing through pub quizzes, etc’. It doesn’t take a moment to see that an appeal hearing in this mode is far more complex than these, with critical live exchanges between different members of the conference between at least six people, several of whom may never have encountered the concept before. Current practices see at least a dozen half hour appeal hearings per day on a tight schedule per school, so any hitch in the technology is going to throw this out of kilter, and be reliant on the clerk to solve problems of timing and rearrangement. The television programme 'Have I got News for You', currently conducted remotely, is a good example of how the content of a half hour programme  becomes greatly reduced in this mode. Therefore, in the case of video conferencing, the Appeal Panel and clerk will need to make a  choice of: holding fewer hearings each day to a very flexible timetable; curtailing discussion in each hearing; or rearranging appointments as the day goes on. All this in a very tight schedule for appeal organisers including KCC, which will inevitably have that reduced pool of volunteer panellists.   

I am conscious that the issues are most acute in the 38 Kent and Medway selective schools, which held 72% of the local 2019 appeals. These can become quite technical through examination of the evidence to justify  grammar school ability. However, quite simply the document washes its hands of problems, merely noting that panellists should only be appointed if they have the necessary equipment or facilities; no mention of expertise, confidence or specific training for remote hearings. Parents are dismissed with the patronising: ‘It is recommended that appeal panels bear in mind that appellants may be less familiar with this kind of meeting’. No explicit mention of the many who may have no experience whatever, nor the ability to manage conferencing. 

On the following pages you will find sections on: Some General Principles in the RegulationsNew Deadlines and Timescales;  Effect of the Temporary Regulations on Hearing AppealsWelsh Office RegulationsAppeals decided on the basis of the written submissions onlyConcluding Thoughts


Some General Principles in the Regulations (selected from the document as being particularly relevant.
  • The overriding principles governing all appeals are procedural fairness and natural justice.  I am sorry but this is simply not true.  In the case of video (or telephone, even more difficult to visualise) conferencing, a massive advantage falls to those comfortable with using the facility.
  • The School Admissions Appeals Code has not been amended by these temporary regulations, and the vast majority of its requirements remain appropriate and must still be complied with.
  • Where face-to-face hearings cannot take place, hearings should be conducted by telephone or video conference. Where telephone or video conference is not possible, appeals conducted entirely on the basis of written submissions are acceptable. At least  three Local Authorities have now decided on their policies (written 27/4): Somerset and Hertfordshire (Telephone Conferencing, details to follow 24th April update); also Northamptonshire which has  published this policy at face value without amplification. Most have not, although time is passing. The written submission option is relegated to being only acceptable when telephone or video conference are not possible. The clerk is required to contact all appellants preferably by telephone (see below) to establish if they have the necessary equipment. There is no mention of whether appellants are to be asked or assessed (how?) if they have the competence  or confidence to manage a conference hearing. Too many will sign up to the procedure through not wishing to  appear inadequate and perhaps damage their chances . This judgement by the clerk appears to be placing a great responsibility on him or her, who will in most cases have no training nor have been expected to have the ability to carry out this critical task.   
  • Appeal panels must be transparent, accessible, independent and impartial, and operate according to principles of natural justice (Accessible? Natural justice?). The clerk must keep an accurate record of proceedings.
  • Parents retain the right to raise a complaint of maladministration on the part of the appeal panel (one can only hope that the authorities have factored in the large increase in complaints and the resources need to manage them, including the large additional workload that will fall onto schools. However, the very low historical rate of success should mean they will be easy to deal with)
  • The temporary regulations work to ensure that the appeals process can continue during school closures by removing references to ‘school days’.
New Deadlines and Timescales
There are various temporary changes to the regulations to ease the timetable and introduce flexibility (but only timetable flexibility, none in process).

Effect of the Temporary Regulations on Hearing Appeals 
In line with the temporary regulations, where a face-to-face appeal is not possible (which it clearly won't be), the appellant should be offered a hearing by telephone or video conference wherever possible.
The appeal panel can decide to hold the hearing remotely if they are satisfied that:
  • the parties will be able to present their cases fully; each participant has access to video or telephone facilities allowing them to engage in the hearing at all time; 
  • the appeal hearing is capable of being heard fairly and transparently in this way.
  • It is recommended that the clerk contacts appellants as soon as possible to explain the new, temporary arrangements for appeals and to establish whether they have access to the necessary equipment for telephone or video conference. Where possible, the clerk should contact the appellant by telephone.  Again, there appears no requirement to establish that the appellant has the skills or confidence necessary to participate in a video conference. I look forward to learning how clerks, especially those responsible for multiple appeal hearings will have the capacity to make up to a hundred plus telephone calls for each school!
  •  Where appeals are to be heard by telephone or video conference, it is recommended that panel members are only appointed if they have, or can be provided with, the necessary equipment and facilities. Rightly so, but this introduces an additional filter on numbers. Again, there is no requirement that panellists have the necessary skills, confidence or additional training for this very different type of hearing.
  • The admission authority must provide a presenting officer for a remote access hearing but, as set out in paragraph 2.11 of the Appeals Code, if no presenting officer attends the hearing, the panel can resolve the case using the evidence submitted by the admission authority if it is satisfied that to do so will not disadvantage the appellant. There is no such requirement for the panel to be satisfied for written submission cases (below).
  • As set out in paragraph 2.12 of the Appeals Code, where an appellant fails or is unable to take part in the hearing at the arranged time, and it is impractical to offer an alternative date, the appeal may go ahead and be decided on the written information submitted. The appellant retains the right to be represented or accompanied by a friend in a remote access hearing.It appears from this that where appellants do not have the skills to access Video Conferencing, the Panel can simply ignore them and carry on regardless, in their absence. This would be grossly unfair, contrary to basic principles and likely to occur for some families in the large majority of multiple appeal hearings. The only concession is the patronising and dishonest advice (not requirement) to panels that: ‘It is recommended that appeal panels bear in mind that appellants may be less familiar with this kind of meeting’. Apparently lack of any experience is not to be considered according to this recommendation, for there is no mention of parents who have never taken part in a complex video conference, or have the necessary skills.

Every one of the 77 Kent and Medway secondary schools that held hearings in 2019 conducted multiple appeals. However, the sole explicit reference to these is  as follows:

  • Where there are multiple appeals for the same school, the principles set out in paragraphs 2.18 to 2.20 of the Appeals Code continue to apply in relation to remote access appeals. These principles should be considered by the admission authority, clerk and appeal panel in deciding whether it is possible for multiple appeals to be heard on a remote access basis, and how they should be organised. Again, there is no advice on what should happen if a remote hearing is not possible for individual families, nor advice on how they should be organised, in sharp contrast to the detailed arrangements laid down for written submission appeals, below. 
A crucial omission is to advise or require panels who are video conferencing, what to do if some of the appellants do not have the skills or confidence to take part in video conferencing. This omission ignores the 'overriding principles governing all appeals are procedural fairness and natural justice'. The documentation then proposes that in such cases 'the appeal may go ahead and be decided on the written information submitted', but not following the procedure below. There is no way this 'solution' can be considered to be procedurally fair or following natural justice, and so all appeals at such hearings should be thrown and out and repeated following a successful complaint of maladministration on the part of the appeal panel.
I am conscious that I have not considered explicitly the telephone conferencing option, which is currently favoured in Hertfordshire (before the new regulations were produced), a Local Authority with the fourth highest number of appeals in the country at 771 last year (although all for comprehensive schools). This is partly because I have only recently come across it, but quite simply cannot visualise how it would work in practice. 
 
Welsh Office Regulations
Readers may wonder why I am wandering across the Welsh border, but the following excerpt from their Regulations so much more positive and friendly to parents, clear and succinct than the DfE rules.
The clerk should establish not only whether the appellant is able to participate in, but also whether they consent to, a hearing by telephone or video conference. Where a telephone or video conference hearing is not reasonably practicable, the panel should decide the case using the parties’ written submissions. Where that happens, the appeal panel must take steps to ensure that the parties are able to fully present their cases in writing, and be satisfied that the appeal is capable of being determined fairly and transparently.

 
Appeals decided on the basis of the written submissions only.
The regulations for this section appear to have been designed without any thought as to the practicalities of multiple appeals, except by imposing a massive administrative input for all concerned in each appeal, although with an important caveat. In the case of multiple appeals the large amount of documentation generated and the exchanges of individual material created will spin out of control, as participants are asked to comment on each batch, ask questions, or prepare answers, leaving many non-professional families completely out of their depth. So (a summary of the five steps in the regulations):
  1. The clerk should contact the appellant and presenting officer, in line with the amended timetable. The presenting officer should be provided with a copy of the appeal 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. 

  2. The panel and clerk should meet by 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.

  3. The clerk should send the questions and all the papers to each of the parties, for example, the presenting officer’s submission will be sent to the appellant along with both sets of questions, and vice versa.

  4. 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. 

  5. 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.

There is nothing of the same prescriptive order for the government’s preferred route of using telephone or video conferencing, presumably drawn up by Civil Servants comfortable with the process, and so assuming that all will run smoothly. 

However, there is a chink of light, in that the regulations note that, for appeals considered through written submission:
The following process may be used to decide an appeal on the basis of written submissions only, however admission authorities and appeal panels must exercise their own judgement in the circumstances of any particular appeal being considered. This is to determine that the approach ensures the parties are able to fully present their case and allow the panel to make a decision which is fair and transparent. The key words and phrases in this paragraph are 'MAY' and 'MUST': 'The following process may be used; and 'admission authorities and appeal panels must exercise their own judgement in the circumstances of any particular appeal being considered'. I would expect any admission authority and appeal panel to use these caveats to the full.
Concluding Thoughts
It is most unfortunate there is no way of pre-testing these emergency regulations for a set of multiple appeals, when I believe the impossibility of operating the process with procedural fairness and natural justice would rapidly become apparent, but too late for amendment now. Government statistics record that there were 31,769   secondary admission appeals in total in 2018-19, with Kent and Medway holding over 10% of these, 7% of the total relating to our 38 grammar schools, so we do have a different perspective and different challenges to other parts of the country.  Certainly, the  225 Infant Admission appeals heard out of 9,316 nationally for Kent and Medway look to be a more  typical number. 

I am aware that government has consulted with Local Authorities over these regulations but fail to see that any notice has been taken of the above issues in these challenging times, missing the opportunity  to be flexible with the terms of the Appeals Code of Practice. This flexibility has already been used with time limits for hearing appeals, so the principle of holding to the Code inflexibly has already been broken. 

The one saving grace appears to be for appeals conducted through written submission, where 'admission authorities and appeal panels must exercise their own judgement in the circumstances of any particular appeal being considered'. 

I sincerely hope that is the case, lawyers permitting, for the alternative appears to be an unnecessary collapse of the system locally. 

 

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