Changes to the admission appeals regulations during the coronavirus outbreak: revised guidance September 2021

This guidance is non-statutory and explains the temporary changes to the Education (Admission Appeals Arrangements) (Wales) Regulations 2005 which have been extended to 30 September 2022 and provides guidance for managing appeals during the coronavirus (COVID-19) outbreak.

The School Admission Appeals Code 2013 is made under section 84 of the School Standards and Framework Act 1998 (“the 1998 Act”)(As amended by the Education and Inspections Act 2006) which requires the Welsh Ministers to issue a Code in respect of the discharge of admissions functions.

It provides guidance for all those bodies who are required to comply with the School Admission Appeals Code (the Code), including:

• admission authorities: local authorities are the admission authorities for community and voluntary controlled schools, unless under section 88 (1) (a) (ii) of the 1998 Act, the function has been delegated to the governing body. Governing bodies are the admission authorities for foundation schools and voluntary aided schools.
• governing bodies (including those that are not admission authorities).
• local authorities (when not acting as an admission authority).
• admissions forums
• admission appeal panel clerks and panel members

The First Minister announced a move to Alert Level Zero in Wales from 7 August 2021. However, Coronavirus has not gone away and we recognise that it may not always be possible or appropriate for these bodies to comply with all the requirements of the Code and the Education (Admission Appeals Arrangements) (Wales) Regulations 2005 during the current coronavirus (COVID-19) outbreak.

We made emergency regulations which temporarily amended the 2005 regulations to give admission authorities, local authorities and appeal panels some additional flexibility when dealing with appeals during the outbreak, and to ensure that appeal timetables work in light of school closures.

The Education (Admission Appeals Arrangements)(Wales)(Coronavirus) (Amendment) Regulations 2020  came into force on 4 May 2020 and ended on 30 January 2021. They temporarily amended the 2005 regulations.

The Education (Admission Appeals Arrangements)(Wales)(Amendment) (Amendment) Coronavirus 2020, which came into force from 30 January 2021, extended these temporary changes to 30 September 2021.

We recognise that due to the ongoing pandemic it may still not be possible or appropriate to comply with all the requirements of the Code and the Education (Admission Appeals Arrangements) (Wales) Regulations 2005 when the Amendment Regulations end on 30 September 2021. 

We have therefore made new regulations, the Education (Admission Appeals Arrangements (Wales)(Coronavirus)(Amendment)(Amendment) Regulations 2021 which further extend the temporary changes to the 2005 Regulations until 30 September 2022. This will to give admission authorities, local authorities and appeal panels continued additional flexibility when dealing with appeals during the ongoing outbreak.

This guidance refers to the amendments as “the temporary regulations”. The Appeals Code has not been amended and the vast majority of its requirements remain appropriate and must still be complied with.

Where the temporary regulations introduce or mandate a temporary change to admission appeal rules which conflicts with an aspect of the Appeals Code, the temporary regulations take precedence. For example, the temporary regulations impose new rules in relation to admission appeal timetables.

This guidance sets out where the temporary regulations should be followed in preference to an Appeals Code requirement.

Where an Appeals Code obligation applies in full and is unaltered by the temporary regulations, it is not expressly discussed in this guidance.

The overriding principles governing all appeals are procedural fairness and natural justice.

Admission authorities, clerks and panels should comply with the government guidelines applicable at the time of arranging and hearing the appeal.

Where face-to-face hearings cannot take place due to the impact of Coronavirus, 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.

The temporary regulations  extend the temporary rules relating to appeal timetables. Appeals should be determined as soon as is reasonably practicable and in accordance with the deadlines set by the temporary regulations. Admission authorities should determine appeals lodged as part of the main admissions round before the start of the September term, wherever possible.

Where a panel member needs to withdraw part way through the appeals process, and it is not reasonably practicable for the panel to be reconstituted in the normal way for a reason related to the incidence or transmission of coronavirus (COVID-19), a panel made up of at least two members may continue to consider and determine the appeal.

Admission authorities remain responsible for making arrangements for appeals against the refusal of a place at their school. They will need to review any arrangements they have already put in place to ensure they comply with the temporary regulations.

Admission authorities should clearly set out for all parties to an appeal how the appeals process will be carried out, including how appeals will be conducted and the expected timescales for each part of the process.

Appeal panels must be transparent, accessible, independent and impartial, and operate according to principles of 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.

The new temporary regulations come into force on 29 September 2021 and will apply:

• to any appeals lodged between that date and  30 September 2022

The temporary regulations will cease to apply in most respects on 30 September 2022 and the requirements relating to appeals will revert to the rules under the Appeals Code and 2005 Regulations.

To ensure that the expiry of the temporary regulations does not prejudice appeals that are already in progress on 30 September 2022, the temporary regulations will continue to apply to:

• appeals that have already been lodged before 30 September  2022 but have not yet been decided

so that:

• any appeal panel that has been constituted as a panel of two can conclude the appeal on this basis
• where an appeal panel has started to consider an appeal on the basis of the written information only, it may continue to decide the appeal on that basis
• any time limits set or prescribed under the temporary regulations will continue to apply

It is recommended that admission authorities and those involved in appeals, prepare for appeals to be conducted in the normal way after the end of September  2022. In particular, timetables for  2023 should be prepared in the normal way.

Section 2 of the Appeals Code continues to apply in full, except where the temporary regulations have the effect of relaxing certain rules in response to the coronavirus (COVID-19) outbreak.

Membership

Paragraph 2.2 of the Appeals Code reflects the requirement of the Schedule 1 to the Regulations that, the panel must consist of a chair and at least two other panel members. The panel must have at least one member from each of the categories listed.

Paragraph 2.18 reflects the requirement of the Schedule 1 to the Regulations that, where a panel member withdraws from a panel of three members, proceedings must be postponed until the return of that panel member, or a replacement must be appointed and the appeal reheard.

The temporary regulations amend these requirements.

Where it is not reasonably practicable for an admission authority to comply with paragraph 2.18 of the Appeals Code for a reason relating to the incidence or transmission of coronavirus (COVID-19), it will be permissible for the panel to continue to consider and determine the appeal where a panel member withdraws, even where there are only two members remaining, and irrespective of the background of those members.

The panel must always be constituted in accordance with paragraph 2.2 of the Appeals Code at the outset. The clerk should note in the record of the proceedings the reason for a panel member withdrawing and the panel continuing with two members.

If more than one member has to withdraw, leaving a panel of fewer than two members, new panel members should be appointed so that the panel is constituted in the normal way (that is, as a panel of at least three members and in compliance with paragraph 2.2 of the Appeals Code). Any part-heard appeals must be reheard.

Training

Paragraph 2.8 of the Appeals Code stipulates that panel members and clerks must not take part in appeal hearings until they have received appropriate training. 

Paragraph 3.3 of the Appeals Code stipulates that clerks must have a good understanding of the law on admissions and must have received appropriate training that includes equality law. 

This applies equally to appeal hearings held remotely, or determined on the basis of written submissions only.

Where panel members have not yet received training, it may not be possible to provide them with the full training package they would normally receive, for example, if training is delivered in face-to-face sessions. Admission authorities should find alternative ways of ensuring panel members and clerks have received training which meets the minimum standards set out in paragraph 2.8 and 3.3 of the Appeals Code, which still apply in full.

In order to comply with the obligations in paragraph 2.8 and 3.3 of the Appeals Code, admission authorities should also ensure the panel and clerk have a full understanding of the temporary regulations, this guidance, and how the new process will work, whether that is by telephone or video conference, or on the basis of written submissions only.

Section 4 of the Appeals Code must be complied with in full, except where the temporary regulations have the effect of imposing new procedural rules as a result of the coronavirus (COVID-19) outbreak.

New deadlines and timescales

The temporary regulations set out revised deadlines and timescales for appeals. This has the effect that those involved with appeals can temporarily disregard timetables published and deadlines set in accordance with paragraphs 4.3, 4.4, 4.9, and 6.1 of the Appeals Code. They should instead follow the new timetable requirements in the temporary regulations.

The temporary regulations work to ensure that the appeals process can continue during school closures by removing references to ‘school days’. Certain deadlines relating to hearing appeals have been revised and appeals must be considered as soon as reasonably practicable.

Where a local authority or an admission authority informs a parent of a decision to refuse their child a place at a school for which they have applied, the requirements to provide the information set out in paragraph 4.2 of the Appeals Code still apply.

However, the temporary regulations mean that the local authority or admission authority must include a deadline for lodging an appeal which is at least 28 days from the date of the notification and refers to a date or calendar days, rather than making any reference to school days.

The temporary regulations require that appellants must be given at least 14 calendar days’ written notice of an appeal hearing (although appellants may waive their right to this in writing).

Some families may be under pressure at this time, whether because of illness or because they are critical workers or managing work and childcare responsibilities. Admission authorities may wish to take account of this when setting any deadlines for lodging an appeal while the temporary regulations are in force.

The temporary regulations mean that admission authorities may set new or revised reasonable deadlines relating to the parties submitting evidence and for the clerk to send the relevant appeal papers to the appeal panel and parties. These deadlines may be set on a case by case basis and can take account of the circumstances of each appeal case. It is recommended that all parties are notified of new deadlines as soon as is reasonably possible.

The temporary regulations mean that the deadlines by which appeals should be heard have been revised. Hearings should now take place (where a hearing is being held), and cases should be decided as soon as is reasonably practicable.

The temporary regulations mean that decision letters should be sent within 7 calendar days of the hearing or, in the case of an appeal conducted on the basis of written submissions only, within 7 calendar days of the appeal panel making their decision, wherever possible.

Effect of the temporary regulations on hearing appeals

Paragraphs 4.13 and 7.5 of the Appeals Code require that appellants and presenting officers are given the opportunity to appear in person and make oral representations.

Where it is not reasonably practicable to hold an appeal hearing in person for a reason relating to the incidence or transmission of coronavirus (COVID-19), the temporary regulations allow for:

• appeal hearings to be conducted remotely (that is, by telephone or video conference)
• appeals to be determined on the basis of written submissions only

In line with the temporary regulations, where a face-to-face appeal is not possible, 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

Where these conditions cannot be met, the temporary regulations allow an appeal panel to make their decision on the basis of written information submitted only. In order for the panel to make a decision which is fair and transparent, they must ensure that the parties are able to fully present their case by way of written submissions.

Where an appeal is being heard remotely or on the basis of written information, the requirements relating to the appeal venue set out in paragraphs 4.19 and 4.20 of the Appeals Code do not need to be followed.

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.

Appeals conducted by telephone or video conference

It is recommended that admission authorities consider the security of the remote access platforms they are using. They should read the privacy terms and conditions and ensure that, where possible, they enable any security features. If they have any concerns, they should consult their IT provider or staff for support.

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.

The admission authority must provide a presenting officer for a remote access hearing, but 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.

As set out in paragraph 4.13 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, interpreter or signer in a remote access hearing.

Appeal panels must comply with their duties under the Equality Act 2010, in particular Section 29, provision of service and including the Public Sector Equality Duty (PSED), when conducting remote access appeals, including when considering an appellant’s attendance and representation at the hearing. This includes a duty to consider any reasonable adjustments that may be needed. It is recommended that the clerk ensures that any decisions taken in relation to requests for reasonable adjustments are recorded as part of the appeal record and confirmed with the appellant in writing prior to the appeal hearing.

Paragraphs 5.2 of the Appeals Code continue to apply in relation to remote-access appeals. The chair should ensure the remote access appeal is held in private, all the parties can hear everything that is said and have an equal chance to participate. It is recommended that appeal panels bear in mind that appellants may be less familiar with this kind of meeting.

Where there are multiple appeals for the same school, the principles set out in paragraphs 5.18 to 5.26 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.

Appeals decided on the basis of the written submissions only

The requirements and principles relevant to appeal hearings in section 5 of the Appeals Code must be applied as far as possible to appeals decided on the basis of written submissions only. However, those requirements that can only apply to hearings where the parties are present (either in person or remotely) may be disregarded and/or modifications may be made in order that they can be applied to appeals decided on the basis of written submissions only.

Section 7 of the Appeals Code must be complied with in full, except where the temporary regulations have the effect of imposing new procedural rules as a result of the coronavirus (COVID-19) outbreak.

The temporary regulations set out revised deadlines for appeals by governing bodies against local authority decisions to admit twice-excluded children. This has the effect that those involved with appeals can temporarily disregard deadlines set out in paragraphs 7.1, 7.3 and 7.10 of the Appeals Code. They should instead follow the new deadlines in the temporary regulations.

New deadlines and timescales

Governing bodies must make these appeals in writing within 21 calendar days after the day it is given notice of a decision that a twice-excluded child is to be admitted to the school.

These appeals must be determined as soon as is reasonably practicable.

The modifications to the method of determining an appeal made by the temporary regulations (such as an appeal that can be determined using remote access or on the basis of written submissions only) also apply to appeals by governing bodies against local authority decisions to admit twice-excluded children.

As a result, the requirement for parties to appear and make oral representations as set out in paragraph 7.5 of the Appeals Code may be disregarded in certain circumstances.