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 Regulations; New Deadlines and Timescales; Effect of the Temporary Regulations on Hearing Appeals; Welsh Office Regulations; Appeals decided on the basis of the written submissions only; Concluding Thoughts
- 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’.
- 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.
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.
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.
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.
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.
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.
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.