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Saturday, 25 April 2020 12:44

Coronavirus: School Appeals in Kent & Medway Part 4

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Index

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.

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