Education (Admission Appeals Arrangements) (Wales) (Amendment) Regulations 2023: integrated impact assessment

Parents have the right to express a preference for any school they would like their child to attend and where there are places available admission authorities, (the local authority or governing body depending on the type of school) must usually comply with that preference. Parents have a right to appeal a decision by an admission authority not to offer their child a place at their preferred school. 

There are 2 separate categories of admission appeals dealt with under the School Admission Appeals Code (“the Appeals Code”):

• appeals against an admission authority’s decision to refuse admission to a maintained school
• appeals by the governing bodies of community or voluntary controlled schools against a decision by the local authority (their school’s admission authority) to admit a child who has been permanently excluded from two or more schools

Admission appeals panels are independent of the admission authority. As part of its deliberation the panel should consider whether the admission authority has acted correctly in applying its admission arrangements when reaching its decision.

The Education (Admission Appeals Arrangements) (Wales) Regulations 2005 (“the 2005 Regulations”) prescribe matters relating to appeals brought under sections 94 and 95 of the School Standards and Framework Act 1998. The School Admission Appeals Code imposes mandatory requirements on admission authorities to ensure the appeals process is fair and transparent.

In undertaking their school admission functions admission authorities, local authorities and school governing bodies (when not acting as admission authorities) and appeal panels must comply with the 2005 Regulations, the School Admission Code and Appeals Code.

The 2005 Regulations and the Appeals Code currently provide for appeals hearings to be held in person (face to face). 

Temporary amendments to appeal arrangements in Wales

Due to restrictions imposed in response to the COVID-19 pandemic it was not always possible or appropriate to comply with the Appeals Code and the 2005 Regulations. For example, restrictions on social distancing made it impossible to hold hearings in person.

The Welsh Government therefore introduced the Education (Admission Appeals Arrangements) (Wales) (Coronavirus) (Amendment) Regulations 2020. The 2020 Regulations temporarily amended the 2005 Regulations and the Appeals Code to give admission authorities, local authorities and appeal panels some additional flexibility when dealing with appeals during the outbreak.

The temporary changes provided that where it was not reasonably practicable for an admission appeal panel to comply with the procedural requirements in the Appeals Code or Schedule 2 of the 2005 Regulations on appeals in person for a reason related to the incidence or transmission of coronavirus, they were able to hold hearings by remote access or decide appeals on the basis of the written information provided.

The temporary changes were extended twice. The most recent, the Education (Admission Appeals Arrangements) (Wales) (Coronavirus) (Amendment) (Amendment) Regulations 2021, ended on 30 September 2022 (subject to certain transitional provisions for appeals already in train on that date).

Review of the effectiveness of the temporary arrangements

During the summer of 2022 officials undertook a review of the effectiveness of the temporary arrangements by way of a survey of the Association of Directors of Education in Wales (ADEW) School Admissions Officer Group, which has representation from all 22 local authorities and diocesan authorities. Eighteen local authorities responded, along with one diocesan authority which responded on behalf of schools for which the governing body is the admissions authority in one local authority area.

An analysis of survey responses showed that since the temporary arrangements came into force, a total of 3,543 appeals were heard by respondents, 2,937 (83%) of which were held remotely. There were 943 successful appeals. The feedback from respondents was positive, suggesting that the temporary arrangements worked well and provided benefits for local authorities, admission authorities, schools and appeal panels in both time and cost savings.

A number of local authorities provided some positive feedback they’d had from parents. This included parents not having to take time off work, not having to arrange childcare and not having to travel to venues to attend hearings. Local authorities also reported the perception that families appeared to be more comfortable in undertaking their appeal at home in their own surroundings. We hope to gather more evidence on the direct views of parents on these arrangements through the formal consultation.

Some initial teething problems were experienced with IT issues, which were usually resolved quickly. Over the period of the temporary arrangements admission authorities and appeals panels have become accustomed to undertaking remote appeals and have put in place the necessary technology and support to facilitate them.

Some concerns were raised regarding the use of written appeals as a first choice, with one authority requesting that appeals determined by written information only being used only where face to face or remote hearings are not possible.

All 22 local authorities have requested that the flexibility provided by remote appeals are retained and made permanent. 

Consultation on changes to school admission appeal arrangements

In response to the call for the flexibility provided by remote appeals to be made permanent, the Welsh Government consulted on changes to the Appeals Code and 2005 Regulations to add an option for holding appeal hearings remotely as well as face to face. 

The consultation ran from 18 January to 22 March 2023. A total of 50 responses were received from local authorities, diocesan authorities, appeal panel members and organisations such as Estyn, school unions, the Catholic Education Society, and the Royal British Legion.

There was broad support for the proposal to allow appeals to take place remotely, as well as in person or a mixture of both.

Proposal to submit regulations and issue a revised School Admission Appeals Code

Taking into consideration the positive feedback to the consultation on changes to school admission appeal arrangements, The Education (Admission Appeals Arrangements) (Wales) (Amendment) Regulations 2023 have been made. The 2023 Regulations amend the 2005 Regulations to allow admission authorities to decide in certain circumstances whether an appeal hearing is to be held in person, by remote access (“a remote appeal”) or partly in person and partly by remote access (“a hybrid appeal”). If the admission authority decides to have a remote appeal or a hybrid appeal, it must make all necessary arrangements for the appeal panel to have access to the necessary remote access equipment.

These Regulations further amend the 2005 Regulations to allow the admission authority to decide that an appeal may be decided on the basis of written information only in certain circumstances, i.e. if either the presenting officer or the appellant are unable to attend on the date of the hearing.

How have people most likely to be affected by the proposal been involved in developing it?

Local authorities and schools that are their own admission authorities have experience of undertaking appeals remotely during the Coronavirus pandemic. The proposals make permanent, with suitable adaptations, some of the temporary arrangements put in place at that time. We have engaged with the Association of Directors of Education, Wales (ADEW) School Admissions Officers group which has representation from all 22 local authorities in Wales and diocesan authorities to review these arrangements by way of a survey. The survey also captured the views of some parents whose appeals were heard remotely. All 22 local authorities requested that the temporary changes in respect of remote appeals be made permanent.

Since then, a public consultation ran from 18 January to 22 March 2023 on changes to admission appeal arrangements to allow appeals to take place remotely. A total of 50 responses were received from local authorities, diocesan authorities, appeal panel members and organisations such as Estyn, school unions, the Catholic Education Society, the Royal British Legion and the Equality and Human Rights Commission. There was broad support for the proposals.

What are the most significant impacts, positive and negative?

Positive impacts

• Flexibility for admission authorities to determine whether appeals are held remotely, in person or a mixture of the two, whilst ensure that appeals continue to be heard fairly. This allows admission authorities to respond to local issues and national issues.
• A reduction in time and costs for local authorities in finding and funding venues for appeals, travel costs and time taken off work by staff. 
• A reduction in time and costs for parents/young people including time away from work, not having to arrange and fund childcare, transport costs to venues and both parents being able to take part from separate venues if needed.
• Anecdotal evidence suggests that parents feel more comfortable undertaking appeals from their own home. Similarly, panel members, many of whom are older feel more comfortable taking part in remote appeals, as they feel it reduces the possibility of contracting COVID and other seasonal illnesses.
• Where appeals are held remotely reduction in travel will have a small but positive effect on the environment.

Negative impacts

• Possible connectivity issues in some more rural areas. 
• Some families may not have the necessary technology to undertake appeals remotely.
• Some disabled people with certain impairments may not be able to present their case effectively via video conference.

In light of the impacts identified, how will the proposal:

• maximise contribution to our well-being objectives and the seven well-being goals and/or

• avoid, reduce or mitigate any negative impacts?

The proposal aims to ensure that school admission appeals are undertaken in the most efficient way, whilst ensuring that all appeals for maintained schools continue to be held fairly and in line with equality law and the public sector duty. In doing so the proposals avoid any negative impacts of the Welsh Government’s well-being objective to continue our long-term programme of education reform, and ensure educational inequalities narrow and standards rise. The proposals contribute to our well-being objective in respect of climate change.

We are not imposing any new requirements on admission authorities. They will have the flexibility to decide whether to undertake appeals remotely, face to face or a mixture of both. 

The new Education (Admission Appeals Arrangements) (Wales) (Amendment) Regulations 2023 provide that an admission authority may only decide to hold an appeal hearing remotely or partly remotely and partly in person (hybrid) provided appellants and admission authorities are able to present their case fully and each participant has access to the electronic means to allow this to happen.

The Clerk to the Appeals Panel is encouraged to engage with appellants prior to the hearing to understand their requirements and ensure they are able to participate as fully as possible. This includes when considering an appellant’s attendance and representation at the hearing where this involves remote access and the duty to consider any reasonable adjustments that may be needed. The clerk will be responsible for ensuring 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.

Admission authorities are well-versed with understanding and providing for the needs of families within their locality, including the provision of BSL, interpreters and appeals papers in alternative formats.

The Appeals Code provides that the appellant may be accompanied or represented by a friend, adviser, interpreter, or signer who may speak on the appellant’s behalf. An independent advocacy service could be used if necessary. The Clerk to the Appeals Panel is responsible for ensuring compliance with the Equality Act 2010 and the Public Sector Equalities Duty.

How will the impact of the proposal be monitored and evaluated as it progresses and when it concludes? 

The Appeals Code is subject to ongoing review. We will continue to liaise with local authorities and admission authorities regarding implementation of the revised Code and monitor any feedback received from parents and carers. 

Describe and explain the impact of the proposal on children and young people

We are making changes to the Education (Admission Appeal Arrangements) (Wales) Regulations 2005 and the School Admissions Appeals Code to include an option for admission appeals to be held remotely as well as in person. The proposal makes permanent, with appropriate adaptations, temporary arrangements put in place in response to the Coronavirus pandemic. A survey of local authorities which are the admission authorities for the majority of schools in Wales suggests that these arrangements worked well and resulted in savings in time and costs for admission authorities, appeal panels and parents alike. The changes are also informed by an eight-week public consultation. There was overwhelming support for the proposal with 98% of responses supporting the proposal to include an option for appeals to be held remotely.

Explain how the proposal is likely to impact on children’s rights

Parents have a right to express a preference in any school they would like their child to attend and where there are places available the admission authority must usually offer them a place. Parents whose child is refused a school place, or young people refused a place in a school sixth form, have a statutory right of appeal to an independent appeal panel. Appellants, including young people, refused a place in a school sixth form retain the right to make oral representations at their appeal. The changes we propose not affect this. 

The school admission appeals process is predicated on natural justice and procedural fairness. Where an admission authority decides to hold an appeal remotely, the new Education (Admission Appeals Arrangements) (Wales) (Amendment) Regulations 2023 provide that an admission authority may only decide to hold an appeal hearing remotely or partly remotely and partly in person (hybrid) provided appellants and admission authorities are able to present their case fully and each participant has access to the electronic means to allow this to happen.

Clerks will continue to carry out a key role in relation to appeal hearings in providing advice on admissions law as well as keeping an accurate record of proceedings and ensuring that the appeal hearing is fair. 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 in person.

The proposed amendments to the Appeals Code and the 2005 Regulations will continue to safeguard the interests of parents, children and young people by ensuring that school admission appeals are administered in the fairest and most equitable way possible.

Describe and explain the impact of the proposal on people with protected characteristics as described in the Equality Act 2010

The proposals will have a neutral impact on people with protected characteristics as described in the Equality Act 2010. Appeal Panels must comply with all relevant legislation including the Equality Act 2010. Appeal panels must comply with their duties under the Equality Act 2010 when considering an appellant’s attendance (either in person or remotely) and representation at the appeal.

The Equality Act 2010 consolidates the law prohibiting discrimination, harassment and victimisation and expands the list of protected characteristics. All schools must have due regard to their obligations under the Act. Their policies and practices, including admissions arrangements and decisions, must meet the requirements of the Act, and failure to do so may be relevant to the matters an appeal panel has to decide.

Admission authorities are also subject to the Public Sector Equality Duty. Therefore, they must have due regard to the need to eliminate discrimination, harassment and victimisation, advance equality of opportunity, and foster good relations in relation to disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Appeal panels must comply with their duties under the Equality Act 2010 when considering an appellant’s attendance (either in person or remotely) and representation at the appeal.

The Public Sector Equality Duty requires public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities. It places a legal duty on decision makers when considering how polity impacts on individuals protected under the Equality Act 2010.

Public authorities include the Welsh Government, admissions authorities, local authorities, and governing bodies. Appeal panels must comply with their duties under the Equality Act 2010 when conducting appeals, whether they are face to face, remote access, or a mixture of the two. This includes considering any reasonable adjustments than an appellant may need in order to attend.

In Wales, certain public bodies are also subject to specific duties found in the Equality Act 2010 (statutory Duties) (Wales) Regulations 2011, also known as the Welsh specific equality duties. The aim of these duties is to enable the better performance of PSED by requiring, for example, the publication of equality objectives together with equality impact assessments, engagement requirements, progress reports, collection of data and more.

When an admission authority opts to hold appeals remotely rather than face to face, they will need to take reasonable steps to ensure that all participants can engage effectively in the hearing at all times and take into account accessibility issues in deciding how to hold appeals. This could include considering whether the appellant has access to the appropriate software or functionality to participate fully, provide any necessary support and making reasonable adjustments.

Do you think that this policy will have a positive or negative impact on people’s human rights?