School admission appeals – the new virtual reality?

03 Apr 2020

Local Government

Local authorities are seeking advice as to whether they may exercise their quasi-judicial functions by means of remote technology, in the current circumstances in which Government advice issued in response to the Covid-19 virus prevents all but essential forms of social interaction. This question arises in the context of school admission appeals (amongst others). The answer is relevant not only to local education authorities, but also to all admissions authorities, including school governing bodies and Academy Trusts.

The answer to this question has now been made apparent, to an extent, by the new draft regulations due to come into force shortly, namely, the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. These draft regulations, as the title suggests, comprise measures permitting a range of public authorities to conduct their business by virtual means. They do not, however, specially deal with school admission appeals.

This is a fast-moving area. At the time of writing, the Department for Education has just advised local education authorities that it intends to put in place emergency regulations and guidance to establish suitable, flexible alternative arrangements, including ones enabling appeals to proceed by way of telephone or video conference, or in writing. They are also reviewing the question of whether they can extend the current timescales associated with admission appeals.

In the meantime, it is worth considering whether, as a matter of principle, in the absence of legislation specially dealing with the matter, school admission appeals can be heard and determined by means of remote technology. The answer to this question, in my view, is yes.

Section 94 of the School Standards and Framework Act 1998 imposes a duty upon admissions authorities to “make arrangements” for the hearing of appeals against the refusal of admission to a school. That duty itself comprises a discretionary power as to the nature of the arrangements in question. This power, in turn, is subject to the mandatory requirements of the School Admissions Appeals Code, issued by the Secretary of State under section 84 of the 1998 Act.

The Code itself confirms, however, that responsibility for making arrangements for appeals against the refusal of a school place rests with the admission authority of the school. Upon scrutiny of the specific requirements of the Code, it is clear that there is nothing in them which serves to prevent admissions appeals from being conducted by remote technology. Indeed, in the current circumstances, some of those requirements can only be complied with if remote technology is deployed for the hearing and determination of appeals.

The starting point, where the Code is concerned, is that it is designed to give admission authorities “the freedom they need to run the appeals process efficiently, whilst maintaining minimum requirements which will ensure fairness and transparency”. Accordingly, if admission authorities take the view that it is necessary to use remote technology in order to run the appeals process efficiently, the Code allows for this. Second, and importantly, Section 2 of the Code sets out time-frames for the appeal process with which admission authorities must comply.

Thus, for example, for applications made in the normal admissions round, appeals must be heard within 40 school days of the deadline for lodging appeals. Plainly, given the nature of the appeal process, which confers an entitlement upon appellants to both appear before and be heard by an appellate panel, this requirement cannot currently be complied with; and it may not be capable of being met by way of physical hearings for weeks, if not months.

Accordingly, it is strongly arguable that admissions authorities have not only a power, but also a duty, to make alternative arrangements to ensure that appeals can be heard within the requisite time-frame. Modern technology, in the form of internet-based communications platforms, provides an entirely appropriate solution to this conundrum.

As the Code itself makes clear, the overarching principles pertaining to admissions appeals are the well-known principles of natural justice, including the principle that both parties to the appeal must be given an opportunity to state their case “without unreasonable interruption”. The use of remote technology to administer appeals is, or at the very least can be, entirely compatible with these principles. Practical considerations may arise relating to the need to ensure that appellants, in particular, have access to the technology in question. As a matter of law, however, it is clear that both the legislation and the statutory Code governing school admissions appeals are sufficiently flexible to allow for them to be conducted in the “virtual world”.

The admission appeal period is an anxious and stressful time for parents and pupils, and local education authorities will be keen not to prolong any uncertainty relating to this. There are grounds for optimism that the corona virus will have a limited impact, in terms of delay, on the appeal system. It is clear from the above considerations that the new regulations which the Government proposes to introduce will be capable of safeguarding the fairness of the appeals process, while regulations will also have the considerable benefit of ensuring consistency in the procedures followed by admissions authorities for the hearing and determination of appeals.

Lisa Busch QC is well-established as a leading practitioner on local government law, as well as education law. She regularly advises local authorities on the scope and application of their powers and duties. She also acts on a regular basis for the Department for Education in dealing with new Academy and Free Schools.