Forum for School Appeals Panel Members ('the Forum')
Response to the Department for Education and Skills' Consultation Document on the draft School Admission Appeals Code
1. Introduction
1.1 The Forum is a very new body which meets informally. Membership to date comprises interested members of schools appeals panels, who sit to decide admission and exclusion appeals in 12 admission authority areas, namely:
- – Buckinghamshire
- – Coventry Diocese
- – Hampshire
- – Milton Keynes
- – Northamptonshire
- – Oxfordshire
- – Plymouth
- – Portsmouth
- – Southampton
- – Swindon
- – Warwickshire
- – West Berkshire
1.2 The main purposes of the Forum are to provide members with opportunities to share best practice, hopefully arrange joint training, and express collective views about the ways in which, from the panel members' perspective, the schools appeals admissions and exclusions systems work and how they might be improved. Being recently formed we have had only a short time to respond to the consultation paper. However we have been able to focus on a number of issues raised by the draft Code, but we have not attempted a comprehensive response.
1.3 What follows therefore are our comments on certain parts of the draft Code. Please treat these as our response to question 12 on the response form. Although Admission Appeals Panels have official status in that they are included at paragraph 7(e) of the 'Introduction' to the draft Code, there is no corresponding 'Panels' box on page 4 of the Response Form.
1.4 This Response is being submitted as an email attachment. Forum members email addresses all appear on the covering email. We would be grateful if in future consultations the Department would include all of us on its circulation list.
2. Admission Authority
2.1 There is a lack of clarity in references to local authority, admission authority, governing body and school despite the explanation in paragraph 7 of the Introduction to the draft Code. For example in paragraphs 1.4 and 1.7 both 'local authority' and 'governing body' are used whereas in paragraph 1.10 they become 'admission authority'. By paragraph 1.11 they become 'admission authorities and local authorities', by paragraph 1.17 'local authority or the school's governing body', by paragraph 1.22 'the school and local authority', and in paragraph 2.21 the funding goes to 'admission authorities' whilst 'local authorities' may provide a venue.
2.2 References to the 'Local Education Authority' in the old Code have gone. Some parents at least may have felt that there was a degree of separation between the Local Education Authority and the Local Authority. However many others probably did not. Even this element of separateness is lost in the new draft Code.
2.3 In the rest of this Response we will use the phrase 'Admission Authorities' as defined in paragraph 7 of the Introduction.
3. Independence
3.1 We believe strongly that independence is at the heart of what we do. Panel members should be independent of all parties, and be seen to be so. We are therefore reassured by paragraph 9(a) of the Introduction and by paragraph 1.3 of the draft Code where there is emphasis on the importance of independence. However there is then a fundamental contradiction with this principle in paragraph 1.4 and subsequently where the roles of the admission authority are described.
3.2 Lest it should be thought that there might be any room for the argument that a small degree of independence will suffice, it is worth referring to the unequivocal views expressed by a number of eminent people and bodies, including: Sir Andrew Leggatt (former judge of the Court of Appeal), the Department for Constitutional Affairs ('the DCA'), and the Council on Tribunals.
3.3 In his Report of the Review of Tribunals in March 2001 to the then Lord Chancellor Sir Andrew Leggatt expressed concerns about the relationship between tribunals and sponsoring departments in general and School Admission appeals in particular. His general views were expressed in paragraph 1.19 of his Report where he said:
"There is also an uneasy relationship between most tribunals and the departments on whose decisions they are adjudicating. In those tribunals which are paid for by sponsoring departments, the chairmen and members feel that they cannot be seen as independent, however impartial they are, and however scrupulous departments are. Indeed plainly they are not independent."
Aspects of Schools Admission Appeals (Part II of his Report) which he felt militated against 'real' independence included:
"The members chairing the panels we attended did the best they could to emphasise the independence of the panels, and be supportive. This was a peculiarly difficult task because the hearings were heard in the Town Hall; everybody there was either a teacher, or a local authority employee, apart from a single panel member and the parents; and the two stage hearing created the strong impression of an uphill struggle".
lack of "systematic efforts to distinguish support for the panels as separate and independent bodies";
"appointments are made by the local authority or governing body concerned. Its staff select the panels to hear individual cases. It is the respondent."
3.4 In the DCA's July 2004 White Paper 'Transforming Public Services: Complaints, Redress and Tribunals' this issue was addressed in paragraph 5.3. At that time most central government tribunals were still sponsored by the Departments whose decisions were being challenged. Further the Department was usually paying the fees and expenses of the tribunals' members and appointing some of them. Whilst there may have been a limited degree of separation between the Department and the corresponding tribunal, and therefore a semblance of independence which had clearly not satisfied Sir Andrew Leggatt, the White Paper's conclusion was in terms:
"... but they are not seen to be manifestly independent of those whose decisions they are reviewing. Furthermore, information about the tribunal process often comes from the original decision-maker, further undermining confidence in the independence of the tribunal".
3.5 In the following paragraph of the White Paper it referred to Sir Andrew Leggatt's conclusions on independence and said:
"His findings drew widespread support from user representatives and the tribunal judiciary. This issue drew the largest number of responses to the Government's consultation paper on the Leggatt review with nearly 80% of the respondents perceiving the current links between tribunals and public authorities to be a threat to the independence of tribunals."
3.6 Since then, and in response to the Leggatt Report, the Government has established the Tribunals Service, and the previous sponsorship of many tribunals by Departments has been transferred to the Tribunals Service, which like the Courts Service, is independent of Government, both national and local.
3.7 The Council on Tribunals, whose statutory supervisory role and whose 'Framework of Standards for Tribunals' are referred to at paragraph 2.2 of the draft Code, has repeated many times that tribunals must be independent. At the beginning of the Council's Framework of Standards it expresses its belief, thus:
"the principal hallmark of any tribunal is that it must be independent."
At section 1 of its Framework of Standards, it says:
"Judicial officers should be independent
- Procedures for the selection and appointment of Tribunal members should be fair and independent of related departments of government and other interested parties"
3.8 Against this background it seems to us to be unacceptable to perpetuate any longer the manifest lack of independence displayed in the draft Schools Admission Appeals Code.
3.9 In contradistinction to the mandatory requirement for independence set out in paragraph 1.3 the draft Code goes on to require the admission authority to appoint the panel (1.4), to review panel membership every three years (1.10), to advertise for lay members (1.12), to arrange and fund training (1.31), to provide an indemnity (1.35), to meet the costs (1.36), to arrange the timetable for appeal hearings and notify parents (2.1), to ask parents for their evidence (2.10), and to provide parents with panel member and clerk details (2.11). The combination of these tasks seems to us to fly in the face of the expressed intent to provide an independent system.
3.10 It cannot in our view be right to espouse independence and at the same time to seek to impose mandatory requirements on admission authorities, whose decisions to refuse chosen school places are being challenged, both to recruit, select, monitor and pay the expenses of panel members and to make the arrangements for the hearing. How can parents give credence to professed independence if the opposing party, which also has vastly more resources and experience than them, has appointed the panel, and is informing and directing parents what to do, where to go and when to do it ? It does not seem to us that sufficient lessons have yet been learnt from the cogent views expressed on this subject by Sir Andrew Leggatt and others. Like Sir Andrew we are not criticising the people presently working the system, what we believe should be changed is the system.
3.11 In our view the opportunity should be taken now to separate the administration of both the school admission and exclusion appeals processes and the appeal panels themselves from admission authorities. Lest this be thought unrealistic in the short term we note that on page 55 of the DCA's White Paper it was envisaged that a review of local government tribunals should start in January 2007. It is therefore timely to grasp this nettle before the school appeals system falls further behind the advances made by so many other tribunals following both the Leggatt Report and the DCA White Paper.
4. The clerk
4.1 We agree with the statement in paragraph 1.22 of the draft Code that the clerk must be independent of the admission authority – described there as 'school and local authority'. We are aware that currently some clerks are lawyers within the council's legal department, some are appointed for each panel hearing from outside firms of solicitors, and some are other staff within other council departments such as the chief executives office. We are also aware that at one end of the spectrum some clerks' involvement is limited to the hearing itself whilst at the other end the clerk is pivotal to the whole system from the moment an appeal is lodged by a parent, and there are many permutations in between.
4.2 The mandatory requirement of the clerk being independent of the admission authority in paragraph 1.22 is then watered down in paragraph 1.23. As we understand it is intended that any suitably trained and experienced member of the admission authority's staff will be regarded as 'independent' as long as they do not work on children's services. This watering down seems to us to be so diluting as to largely negate the mandatory requirement in paragraph 1.22.
4.3 In making these comments we wish to make clear that we are not criticising the quality of the clerks which we have at the moment and who do a very good job within the constraints of the system. We are however pointing out how important we think true independence is, and how parents' may be forgiven for being cynical about the professed independence of the system. If the clerk works for the admission authority and writes to parents on council notepaper this increases the lack of perception in the professed independence of the process. How can parents feel that they are receiving independent advice on procedure from the clerk as required by paragraph 1.26(c) if he/she works for the admission authority, the opposing party and the one which has refused a place for their child at their chosen school; the more so when the advice is often being given inside the council's own premises where the hearing is to take place. Incidentally we welcome the mandatory requirement for a neutral venue in paragraph 2.21, but feel that clarification of 'neutral' in this context is required.
4.4 With regard to the clerk's mandatory jobs before the hearing as set out in paragraphs 2.18 and 2.19 we have doubts that the juxtaposition of five and three working days is sufficient, or that three days is long enough for parents or indeed panel members. Neither of these periods seem to us to be long enough. Parents in particular must be given enough time after receiving the papers to prepare and get advice if they wish for the hearing.
5. Unrepresented parents
5.1 In the vast majority of admission cases parents are not represented. Often the hearing is traumatic for them. In paragraph 1.17 we are expected to play an active part in the questioning of the presenting officer and the parents. We welcome this. We also welcome paragraph 2.28. It confirms that we may ask questions at any time either to clarify what is being said or if we wish to ascertain further information. Both of these often apply. We are concerned however at the mandatory prohibition in paragraph 2.13 against treating unrepresented parents any differently from those who are represented. Whilst it is not easy to articulate the extent to which the panel should be investigative, we do feel that part of our role is an enabling one, so that parents are helped to ask their questions and make their points. This does not arise, at least to the same extent, for those parents who are represented.
5.2 In the Council on Tribunals' Framework of Standards they advise that the necessary steps should be taken to ensure all relevant issues are explored. This seems to be reflected in paragraph 2.28 but not 2.13 of the draft Code. We suggest that the last sentence of paragraph 2.13 should be removed.
6. Training
6.1 We support the mandatory requirement for training for panel members in paragraph 1.31 of the draft Code. We agree that panel members' training should be 'differentiated' from that for clerks and presenting officers. It should be tailored to panel members' specific needs.
6.2 We believe that there is a strong case for joint training of panel members from a number of admissions authorities in neighbouring counties. Not only would it provide opportunities for learning from each other and sharing best practice but also the costs could be shared. We would welcome this being made clear in the Code.
7. Pooling Resources
7.1 We welcome the encouragement in paragraph 1.11 to pool resources. However this could with advantage be extended beyond county boundaries so that panel members from one authority area might sit with colleagues in another area. We are conscious that there is great variety in the ways in which the schools appeals system operates in different admission authority areas. We believe that it is important that we learn from each other and share best practice.
7.2 We wonder if this principle could be extended to recruitment and reviews of panel member performance. If this was done collectively on a wider area basis then not only would this break the link between each panel member and the corresponding admission authority, which currently militates against independence, but also the monitoring or appraisal of members would not be carried out by employees of the same admission authority, whose decisions are being adjudicated upon.
7.3 Further with regard to recruitment we suggest that one or two experienced panel members should be involved in the process rather than, as appears generally to be the case, recruitment being done exclusively by admission authority staff.
8. Notification of names of panel members
8.1 We have some concern with paragraph 2.11(a) of the draft Code. Our enquiries indicate that some panel members would be nervous if their names were given out in advance. It would be very unfortunate if disgruntled parents decided to try to contact panel members. We are however conscious of the trend for greater transparency. Nevertheless set against this we do not feel that panel members, all of whom give freely of their time, should be made to feel vulnerable as a result of a mandatory requirement. It seems to us that paragraph 4.19 of the present 2003 Code works well and recognises the sensitivity of this issue for some panel members. Can it please be retained?
9. Chair's responsibilities
9.1 We are comfortable with the flexibility provided by the wording 'The Chairman is responsible for' at the start of paragraph 1.21. However the similar provision in paragraph 2.27 is mandatory on the chairman personally. We do not understand why they are different, and would suggest that the formula in 1.21 should be repeated in 2.27.
10. Prejudice
10.1 At paragraph 3.2 of the draft Code panels are mandated to consider two separate issues. However we do not understand why 'should' rather than 'must' is used in line 6 of paragraph 3.2(a). If the child would have been offered a place if the admission arrangements had been properly implemented then our understanding is that we have to uphold the appeal. Having said that it seems to us that the exception set out in the last sentence of paragraph 3.2(a) should be clarified and given a separate paragraph.
11. Multiple appeals
11.1 We think that paragraph 3.11 requires some clarification. In particular in paragraph 3.11(a)(ii), having decided that say 3 children could be admitted without prejudice, on what basis should those children be chosen from say 10 appellants ? If we should use the admissions criteria then should not the Code say so ? If another basis then should not this be spelt out ? We assume that the 'remaining parents' mentioned in paragraph 3.11(a)(iii) are those whose children have not been chosen at the first stage.
11.2 Whilst paragraph 3.11(b)(ii) is very similar to the corresponding provision at paragraph 4.71 of the present 2003 Code, it would nevertheless be useful to have guidance both on how the panel should determine what number the school could 'cope' with and on what basis it should carry out the comparison.
11.3 We believe that experience has shown that the 'Individual Multiple Appeals' process is unfair and should not be a continuing option.
12. Infant class size appeals
12.1 We find that the section between paragraphs 3.16 and 3.34 lacks clarity. There are differences between the drafting of paragraphs 3.79 and 3.80 of the draft Schools Admissions Code and 3.33 and 3.34 of the draft Appeals Code, the former being more detailed and what we believe is intended.
12.2 Would it not be helpful to take this opportunity to reverse the order of Grounds A and B in paragraph 3.17 of the draft Appeals Code ? Consequential changes could then be made at 3.23 and 3.24 so that Ground A was dealt with before Ground B.
12.3 We have some discomfort with the reasoning in paragraphs 3.19 to 3.22, described as the first stage where the Admission Authority has to prove that this is a class size appeal. It appears that the intention is that the Admission Authority should have two opportunities to make their case on different grounds, first on class size prejudice and secondly on normal prejudice. If it is legitimate for the Admission Authority to be entitled to two bites of the cherry it seems to us that as a minimum the refusal letter to parents conveying the Admissions Authority's decision should make it clear that, if it be the case, the decision was based not only on 'class size' but also 'ordinary' prejudice, and that both can be appealed. If it is solely a class size appeal and the panel disagree, then the appeal must be upheld at that point. A similar point arises in regard to paragraph 3.30.
12.4 We would repeat the point at paragraph 11.3 above in relation to paragraph 3.31(b) of the draft Code.