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Comment :
Schools Admission and Exclusion Appeals –
the need for a panel members forum
(July 2006)
Michael Brown, former member of the Council on Tribunals and now lay member of the independent admission and exclusion appeal panels for Oxfordshire, talks about the need for a review of the appeals system for schools admissions and exclusions.
Introduction
1. The purpose of this short paper is to draw attention to the forthcoming opportunity for those involved in schools admissions and exclusions appeals to contribute to a Government Review of the education appeals system. The paper expresses my personal views and is written from my perspective as a member of both admission and exclusion panels, and as a former member of the Council on Tribunals.
Background
2. The Education Act 1980 established Education Appeal Committees to determine appeals about parent's choice of school. The 1981 Act extended this to children with special educational needs, and in 1987 the jurisdiction was extended further to include permanent exclusion appeals. In 1994 the special educational needs cases were transferred to SENT (now SENDIST), a specialist tribunal set up, like most tribunals, with a national administrative structure and a president. By the School Standards and Framework Act 1998 the Committees became Admission and Exclusion Panels, and county councillors were no longer permitted to be members of the panels.
3. Under this legislation, together with secondary legislation in 2002 (SI No.2899) and Codes of Practice, local authorities make the appeal arrangements for maintained schools, whilst governing bodies of foundation and voluntary-aided schools make their own arrangements. These arrangements include communicating with parents and LEA officers prior to the appeal hearing, organising the venue, recruiting, training and paying the expenses of panel members, clerking the hearing, and reporting the outcome to the parents.
4. In May 2000 the Leggatt review of tribunals was established by the Lord Chancellor. Its remit was to review the delivery of justice through tribunals in resolving disputes between citizens and the state, or between other parties. In his report in 2001 Sir Andrew Leggatt said: "Responsibility for tribunals and their administration should not lie with those whose policies or decisions it is the tribunals' duty to consider".
5. In March 2002 a research study entitled 'The Operation of Appeal Panels, Use of the Code of Practice and Training for Panel Members' by Sheffield Hallam University commissioned by the DfES was published. It reported that "most parents and panel members believe that the process works well and is as fair as it can be in the circumstances."
6. In May 2003 the Council on Tribunals published its special report 'School Admission and Exclusion Appeal Panels'. It repeated its previously expressed concerns about the lack of independence of these panels, their constitution, the need for greater consistency in the clerking arrangements, the need for a clear and uniform policy on training, the need for better guidance and information for parents, the need for better and more appropriate accommodation, and particular concerns about the operation of appeals for voluntary-aided and foundation schools. Amongst its many recommendations it had two that it regarded as key: first that because of the recurring link between exclusion and special educational needs, exclusion appeals should be heard by SENDIST; and second that, as an interim measure pending the establishment of a national structure, admission appeals should be organised on a regional rather than local basis. The DfES were not persuaded, at least not at that time.
7. In response to the Sheffield Hallam report the Council on Tribunals commented that "the majority of parents and panel members have little or no experience of any other appeals system against which to compare the operation of the admissions panels. Parents are unlikely, therefore, to be able to assess how well or otherwise their appeal has been handled, the result of the hearing usually being the main criterion by which they will judge it."
8. In March 2004 advice and guidance from the Local Government Ombudsmen was published in their special report 'School Admissions and Appeals'. They advised that "Appeal panels must be absolutely independent of the admission authority, and manifestly seen to be independent." On the role of clerks they advised that " The role of the clerks is vital and it is important that clerks are independent of the authority and seen to be so."
9. Finally the House of Commons Education and Skills Committee looked at these issues. It reported on 22nd July 2004 – HC 58-1. They too were concerned about the system. They were complimentary about the reports of both the Council on Tribunals and the Ombudsmen, and expressed disappointment that the DfES had so far been reluctant to act on many of the Council's recommendations. Taken together they said that "the two reports provide compelling evidence of the need to establish and enforce a common framework for the admissions and appeals process". They were particularly concerned about the difficulties with appeals conducted by voluntary-aided and foundation schools, and in this context pointed out that "parties should be mindful of the need for the appeals process to be, and to be seen to be, independent from any admissions authority, including LEAs."
White Paper
10. Following the Leggatt report the Government has decided to establish a single administrative structure for tribunals, the Tribunals Service. Its proposals were set out in a White Paper, 'Transforming Public Services: Complaints, Redress and Tribunals' published in July 2004. Many of the larger tribunals have now been brought into the new Tribunals Service. However local government tribunals such as School Admission and Exclusion panels are not included, at least at this stage.
11. Crucially in the timetable set out in the White Paper there is provision for a review of local government tribunals starting in January 2007 with a reporting date of January 2008. A major part of this will relate to Schools Admissions and Exclusions appeals.
Present position
12. All local authorities, and all governing bodies for voluntary-aided and foundation schools, do their own thing. Each runs its own process for admission and exclusion appeals. As the Leggatt report concluded: "There appears to be a complete lack of coherence in the practice and procedure. Authorities interpret the guidance issued by the DfEE as they see fit." Whilst Sir Andrew Leggatt had praise for the individuals involved, the report said that, "Our concerns are largely about the system which they are asked to operate".
13. One or two employees of each relevant local authority or governing body concerned are pivotal to the present system. Usually they hire and fire panel members; select teams of three for each case; often provide the training; arrange the hearings by communicating with parents, education officers and school heads; organise the venue (often County Hall), advise the parents; often clerk the hearings and draft and send out the letters explaining the panel's decisions; and arrange for panel members expenses to be paid. Across the country there are many permutations in the local authority staff involved, and some outside clerks are used for the hearings. However a recent 'Adjust' newsletter from the Council on Tribunals confirmed that: "The process of recruitment and training of panel members is generally the responsibility of clerks to the panels".
14. With regard to panel members there is no communication between those in one local authority area and another. There is no sharing of best practice. Each panel acts in isolation guided by such training as they get and by their clerks. A few years ago some clerks realised their own isolation. They got together and formed the Education Appeals Support Initiative (EASI) group. This has been very successful. Clerks within a region meet regularly to share best practice and to support and help each other. Other EASI groups have been formed in other geographical areas. The Council on Tribunals has lent its support and acted as a catalyst to extend EASI groups into the London Boroughs more recently. However panel members are not involved. The 'judiciary' therefore remain cloistered in their local panels unaware of other practices. The judiciary have neither local nor national structure; they are merely called in threes to hear individual cases. Unlike magistrates, who also sit in threes and dispense local justice also without recompense, there is neither a local nor a national association. There is no body for appeal panel members to belong to.
Forthcoming Opportunity
15. The Department for Constitutional Affairs has now started a review of local government tribunals. The bulk of these in terms of throughput of cases are school admission and exclusion panels. It seems to me that panel members, the judiciary, should not be left out of the expected consultation process. At present neither the DCA nor the DfES even knows who we are. There is no organisation to consult. There is no way of finding out if members have a collective view. Until the EASI groups were established the DfES could not even consult with the clerks. Consultations have therefore concentrated on Directors of Education.
16. It is unrealistic to think that overnight a national association of panel members could be formed. However, using the EASI group areas, of which there are now about 6 covering about 90 of the 150 Local Authorities administering the schools appeals process in England and Wales might it be possible to assemble groups of panel members within the area of an EASI group to see if a nucleus of interested members might wish to share experiences, their views about the system, and perhaps share training? An area or regional group might then be able to consider and respond collectively to any government proposals in a consultation paper as part of its review.
Conclusions
17. There is a widespread and prevailing view that the present system of school admissions and exclusions appeals requires fundamental reform. Virtually all other tribunals are now established on a national basis. Much effort is presently being directed towards the new Tribunals Service
18. If the present cadre of admissions and exclusions panel members is to have a voice in this process a means needs to be found urgently for those interested members to come together to express a collective view either at an early stage or, more likely, in response to a consultation paper. An initial meeting of a few Oxfordshire panel members has taken place and a second is scheduled in August to which some neighbouring authorities' panel members are being invited. It is hoped that this will grow. Any panel members who are reading this paper and who are interested should please let the Council on Tribunals (tel.020 7855 5200) know and their contact details will be passed to me.
19. If each of the 150 local authorities administering schools appeals has, say, 20 panel members, this will amount to a national cadre of some 3,000 panel members. According to the Council on Tribunal's statistics in its 2004/05 Annual Report these panel members decide about 60,000 cases annually. I think that they should have a collective voice.