Coronavirus: School Appeals in Kent & Medway Part 4

Saturday, 25 April 2020 12:44

Written by Peter Read

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Index

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):

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.

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.