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Part 2: Admission Appeal Panels

Background

2.1 Education Appeal Committees, as they were previously known, came into existence following the Education Act 1980, initially to hear appeals concerning parental choice of school. The Education Act 1981 extended the Committees' jurisdiction to include appeals concerning children with special educational needs; these appeals are now dealt with by the Special Educational Needs and Disability Tribunal, which was established in 1994. In 1987, the Committees' jurisdiction was further extended to include appeals against permanent exclusion from school. The Committees became admission and exclusion appeal panels following the enactment of the School Standards and Framework Act 1998.

2.2 Throughout their existence, the operation of admission and exclusion appeal panels has caused us considerable concern, and has been the subject of detailed comment in our Annual Reports. There have, however, been some notable improvements in the operation of the panels, many of which have taken effect following the 1998 Act.

2.3 Some of the provisions of the 1998 Act will be amended by provisions in the Education Act 2002, which, among other things, provides for the panels' procedural regulations to be contained in secondary legislation. We have long urged this, and were disappointed that the Department did not seek our advice at an earlier stage, while its policy was being developed, to enable us to offer suggestions about a more comprehensive approach for the new rules for the panels. We would have suggested that the regulations include matters such as the time limits for appeals and the circumstances in which late appeals may or may not be accepted. The guidance contained in the Code of Practice on Admission Appeals is unsatisfactory, since it leaves these matters to the discretion of appeals clerks, which inevitably leads to an inconsistent approach.

2.4 The School Standards and Framework Act of 1998 established admission appeal panels, distinct from exclusion appeal panels, under Section 94 and Schedule 24 to the Act [Schedule 24 was repealed with effect from 20/01/03 and replaced by provisions in S.I.2002 No.2899]. Under Schedule 24, which specifies separately the appeal arrangements to be made by local authorities for maintained schools and by governing bodies for foundation and voluntary-aided schools, a panel may comprise 3 or 5 members, including:

one lay member with no experience of management or in the provision of education in any school, other than in a voluntary capacity; but excluding any person who is a member of the relevant LEA or a governor of the relevant school, anyone employed by the LEA, or anyone with any connection with the authority or school in question which might raise doubts as to their impartiality; and
other members who have experience in education, or who have knowledge of local education conditions, or who are parents of pupils at a school.

2.5 Schedule 24 also provides for joint arrangements for the constitution of admission appeal panels by local authorities and governing bodies of one or more schools. The Schedule also prescribes some of the procedures for dealing with appeals (which are now defined by secondary legislation).

2.6 Admission appeal panels are required by law to have regard to guidance issued by the Secretary of State in the discharge of their statutory functions. A Code of Practice on School Admission Appeals was published by the Secretary of State in November 1999. The Department has since consulted on a draft revision of the Code of Practice, which came into effect in February 2003.2

Independence openness, fairness and impartiality

Extracts from our visit reports:

" Mrs X is an absolutely excellent clerk, but unfortunately she is also the personal assistant to the Headmaster of the school. I did not think she should be acting as clerk."

" I was surprised that the school governor showed no sign of leaving. It then transpired that he needed to wait to give the clerk a lift. Although I was sure that the school governor would not in any way seek to influence the decision of the panel, it would be good practice if he left once he had presented the case for the school in all cases before the panel."

" The governor representing the school was already well settled in his place when the mother had been invited in, so in her view of the situation, it may have looked as if he was part of the panel."

2.7 One of the main criticisms we have made in the past in respect of both admission and exclusion appeal panels is that they could appear not to be entirely independent and impartial. School admission appeal panels are appointed, trained, financed, constituted, serviced and often clerked by the LEA, or in the case of voluntary-aided or foundation schools, by the school's governing body. The LEA determines the procedures of the panels, other than those procedures specified in Schedule 24 to the 1998 Act. The LEA also maintains local schools on behalf of the Secretary of State and employs the staff. There is, therefore, not the degree of separation between the original decision-making and appeal functions that we would usually expect to see in an independent appeals system. As Sir Andrew Leggatt stated in his Report of the Review of Tribunals, "Responsibility for tribunals and their administration should not lie with those whose policies or decisions it is the tribunals' duty to consider. Otherwise for users, as has been said, "Every game is an away game.""

2.8 On the question of how parents themselves perceive the appeal process, the study of admission appeal panels, carried out by researchers from Sheffield Hallam University, reported that "most parents and panel members believe that the process works well and is as fair as it can be in the circumstances". However, the majority of parents and panel members have little or no experience of any other appeals systems against which to compare the operation of admission appeal 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. In addition, parents usually have low expectations of the appeals process, and if the appeal panel treats them sympathetically and allows them to have their say, they are less likely to feel dissatisfied about the process. We, of course, have the advantage of observing post-hearing deliberations, an opportunity not available to parents.

2.9 In our Special Report, "Tribunals their Organisation and Independence" we set out what we considered to be the key conditions for independence which tribunals systems should be able to demonstrate. These conditions included such matters as:

proper rules of procedure;
high quality appointments of chairmen and members;
proper training for chairmen and members;
appropriate standards of judicial performance;
the freedom to take decisions uninfluenced by resource or other external considerations;
proper administrative support by way of hearing clerks and support staff;
adequate and appropriate hearing accommodation in premises which are not connected with one or other of the parties; and
sufficient resources to meet their needs.

2.10 However, we acknowledged in our Report that some of these conditions might not be universally applicable to all tribunals and particularly to locally-based appeals systems (such as admission and exclusion appeal panels) which do not have a judicial Head to give leadership and guidance.

2.11 We have in the past suggested that the appeal panels (particularly in respect of exclusion appeals) should be organised on a regional basis rather than within each LEA [Annual Report for 1997/98, para 1.24], and we remain firmly of that view. What we have in mind is an early reorganisation (albeit only an interim measure before a national system can be established) involving the grouping of all panels for 3 or 4 counties, or such other larger administrative area as is geographically manageable. Such grouping should be sufficient to give a critical mass of experience and to demonstrate independence from individual schools.

2.12 School admission authorities are currently separated into many small units, either at LEA or foundation/voluntary-aided school level. We have frequently observed how isolated these panels and their clerks are, and particularly those hearing appeals from foundation and voluntary-aided schools. However, a regionally based service, both in terms of the management and organisation of appeals and appeal panel hearings, and in the provision of training to members, would provide the potential for a much improved service. This would also bring the advantage of saving on resources, through reducing the unnecessary duplication of effort among LEAs in servicing admission appeals. It would also provide for a greater degree of separation between the appeal panel and the LEA or admission authority whose decision is under appeal, and improve the actual and perceived independence of the panels.

Extract from our visit reports:

" The Chair was a governor of an associated school in the area. She was, thus, technically independent of the school whose admission procedures were being questioned but was involved with the overall management. She herself was clear as to the need to demonstrate independence of decision but an aggrieved parent might have perceived a lack of independence and even considered their human rights to have been infringed."

2.13 The changes brought about by the 1998 Act to the composition of the panels have resulted in a greater degree of independence in their constitution. In particular, the Act disqualified certain persons from membership of the panels; including, members of the appointing authority or of the governing body, i.e. local Councillors, any person employed by the authority or the governing body (other than a person employed as a teacher), and any person whose connections with the authority or school might raise doubts about his or her ability to act impartially.

2.14 However, there remain, in our view, some outstanding concerns related to the actual and perceived independence of the panels, both resulting from their constitution and as a result of inadequate standards of chairmanship skills.

2.15 On the constitution issue, the Code of Practice makes it clear that a teacher may not be a member if he or she is a teacher at the school which is the subject of the appeal or appeals in question. However, we do not believe that this disqualification provision goes far enough. There are still too many teachers on the panels, which skews the balance of the panels against parents. In particular, we have observed many cases where teachers from schools within the same LEA area regularly sit on appeal panels to hear cases for the other schools within their own area, which makes it more likely that they will know the staff at the school. We cannot see how in those circumstances these particular panel members can ever truly be regarded as wholly independent. It would be preferable if the disqualification criteria were extended to exclude from membership of the panels all teachers from within the particular LEA area of the school which is the subject of the appeal(s) in question.

Accommodation for Hearings

Extracts from our visit reports:

" The room being used for the hearing is normally used for training, so there had been a hasty re-arrangement of the furniture... The arrangement did not lend itself to informality, and when coupled with the echoing bare floorboards and rather stark minimalist decor, the whole effect was rather intimidating. The arrangement of the room also meant the clerk had to sit alongside the panel and, given her enthusiasm to contribute to the proceedings at some points, she could well have looked like a member of the panel."

" The venue was imaginative, neutral, accessible and pleasant, being the board room of the theatre in the centre of town."

" The accommodation was wholly unsuitable ... on the outskirts of the town. The hearing room was a second floor attic room with no access provision for disabled people. The appellants congregated in the bar on the first floor. Toilet provision was on the ground floor. Workmen were replacing the roof immediately above the hearing room and the hammering and drilling were intolerable..."

2.16 We have commented in the past on the unsuitable nature of the accommodation in which we have observed some hearings taking place, particularly where the hearing takes place within the school itself. This inevitably impacts on the extent to which parents perceive the panel to be independent from the school. It is pleasing to note that the incidence of hearings taking place in schools appears to be reducing, (other than in relation to appeals from foundation and voluntary-aided schools, covered at paragraphs 2.47-2.50). Hearings now usually take place in the local Town Hall or in other local authority accommodation, no doubt because such accommodation is more freely available. Whilst this is an improvement, it is still not ideal. We have frequently observed that parents are unlikely to be able to draw the distinction between the local authority and the local education authority.

2.17 We continue to have some concerns about the standards of the venues for hearings (as highlighted in the extracts from our visit reports), for example: the hearing room may be too large or too noisy; there may be a lack of waiting room facilities; poor access for disabled people; or a poor arrangement of the furniture for the panel and the parties. We are pleased to note that the revised Code of Practice includes additional guidance in respect of the venue for appeal hearings, including such matters as the need for a more neutral location and ensuring the venue is reasonably accessible, with facilities for private discussion between appellants and their representatives.

The Chairing of Admission Appeals Panels

Extracts from our visit reports:

" The Chairman was friendly and tried hard, sometimes too hard, to keep the proceedings informal. The result was that the hearing wandered into almost irrelevant areas of questioning and therefore overall took too long."

" The Chairman had practised at the bar, and was a district judge before he retired. His training and experience showed."

" The Chairman invited the mother to put questions to the school governor. Unfortunately, she launched into a series of statements and was stopped each time by the Chairman, insisting that she must ask questions. However, he made no effort to help her turn her comments into questions."

" The Chairman gave an excellent introduction, emphasising the panel's independence. He also explained the two-stage process in a manner which the mother clearly understood. He skilfully guided the proceedings. He also picked up on a number of points on the mother's behalf."

2.18 We have observed poor chairing skills, which is often a direct result of a lack of training (which is discussed in more detail in Part 4). The Chair of an appeal panel plays a critical role in the proceedings: the Chair is responsible for directing the hearing and ensuring fair play, by allowing everyone to have their say and to put questions to the other parties. Where parties are unrepresented, as is usually the case in admission hearings, the chair has a duty to assist each of the parties. Sir Andrew Leggatt, in his Report "Tribunals for Users One System, One Service", described this as an "enabling" role. We believe that Chairs have an equally important "management" role, in directing proceedings in a timely and efficient manner.

2.19 In respect of the necessary qualifications of tribunal chairmen, the Franks Report[Cmnd. 218] stated "There has been substantial agreement among witnesses that at any rate the majority of chairmen of tribunals should have legal qualifications. We attach great importance to the quality of chairmanship. Objectivity in the treatment of cases and the proper sifting of facts are most often best secured by having a legally qualified chairman, although we recognise that suitable chairmen can be drawn from fields other than the law. We therefore recommend that chairmen of tribunals should ordinarily have legal qualifications but that the appointment of persons without legal qualifications should not be ruled out when they are particularly suitable". That view holds as true today as it did when first published in 1957.

2.20 Our observations suggest that the general standard of chairing of admission panels is variable but, overall, remains less than satisfactory. The main reason for this, in our view, is because the Chair of the panel will usually have had neither legal training nor any training in chairing skills. Some of the best Chairs we have seen have usually had previous experience as a magistrate or judge.

2.21 We have observed some hearings where the Chair has adopted a heavy-handed, almost dogmatic approach, and others where the Chair has exercised very little control, allowing the proceedings to be taken over, either by the clerk or one of the wing members, or by one of the parties to the appeal. We have advocated on many occasions the need for a legal Chair for admission panels or for dedicated training in chairing skills for lay Chairs.

Extracts from our visit reports:

" The Chairman was chosen by the panel members at the start of the pre-hearing discussions. It was not until this point that the clerk handed to the Chairman the relevant correspondence from the Council's secretariat."

" The Chair had been decided on the day, shortly before my arrival. Given their collective experience, I think that any one of them could have coped, but it is not a very satisfactory way to arrange things."

2.22 The Chair has significant judicial and management functions to perform on the day, which require careful preparation and planning in advance of the hearing. It is important that the Chair of the panel should be selected and notified to the other members and the parties in advance of the hearing. We have observed on many occasions the unacceptable practice where the panel chooses the Chair on the day of the hearing. It is often a lack of planning and preparation on the part of panel Chairs which can result in the kind of unsatisfactory hearings that we have witnessed during our visits.

2.23 The need for good preparation also applies to the other panel members. We have noted hearings which have been flawed as a result of poor preparation on the part of the wing members, and in particular, the failure by the panel to identify the key issues in the appeal and to agree before the hearing which matters need to be clarified. This often leaves the panel in no better a position to reach an informed decision after the hearing than they were before.

The Clerk

Extracts from our visit reports:

" The hearing itself was in effect conducted by the clerk. It was he who introduced everyone present and outlined procedures. He indicated to the Chairman throughout what she should do next, suggested questions she might ask and asked some questions himself. The clerk began drafting formal decisions on the basis of what appeared to be the consensus of opinion. His draft decisions, carefully worded to give the impression that full consideration had been given to all relevant matters, were not questioned or altered in any way. I doubt that it was intended that clerks should run the hearing with panel members little more than observers."

" The clerk was clerk to two Parish Councils locally and to the governors at a primary school. She handled arrangements well and took extensive notes, to which the panel referred at various times during the deliberations. She was not legally qualified. Some legal points arose on which she could not give a clear ruling. The panel had received no training whatsoever which put them at a disadvantage when seeking to interpret some of the points in the guidance."

" The Council's solicitors take it in turns to handle appeal panels. They confirmed my view that either a legal Chair or a good legally qualified clerk is a pre-requisite for a satisfactory hearing."

2.24 The traditional role of clerk to the appeal panels, which may be carried out by more than one person, involves the following functions:

acting as the main contact point for the parties to the appeal;
making the arrangements for the hearing within the statutory time limits;
giving advice on the appeals procedures;
notifying the parties to the appeal of the arrangements for the hearing;
ushering the parents and the school representatives on the day of the hearing;
giving advice to the panel on procedure and the law;
noting the proceedings;
assisting the panel to draft its decision letter in order to reflect the reasons for the panel's decision;
notifying the parties of the panel's decision.

2.25 We have observed a variety of different arrangements as regards the clerking of admission appeal panels. The role of the clerk is often carried out by a member of staff from the local authority's committee section, sometimes accompanied by a member of the authority's legal Department. The clerking role is usually an add-on to the individual's main job, which can often have a negative effect on the way the individual operates in that role. At hearings of appeals from foundation and voluntary-aided schools we have observed clerks from a range of different backgrounds, from an ex-Magistrates' Court clerk to a PA to the school's headteacher. Regardless of how skilled in clerking the particular individual may be, the close working relationship of the clerk to one of the parties to the appeal can make it entirely inappropriate for that person to be the clerk to an independent appeal panel. Equally, the clerk should not be involved in admissions within the LEA.

2.26 We see certain advantages in the clerk having a legal qualification, particularly where the Chair is not legally qualified, but, in any event, as a minimum requirement, we would expect that the clerk should be sufficiently familiar with the law and the Secretary of State's guidance to be able to give advice to the panel and the parties to the appeal as required. For this reason, it will often be necessary for the clerk to remain with the panel during the deliberation stage, so as to be on hand to provide advice on procedure and the law as required. All parties to an appeal should receive information about the clerk's role, and specifically that the clerk provides legal advice to the panel but takes no part in the deliberations or the decision making process.

Extract from our visit reports:

" Last year was the first time the school had had admission appeals and the clerk had to learn how to cope with them without any support. Her position illustrates how isolated some of these panels can be, and reinforces how often people are having to "reinvent the wheel", and acting without suitable and helpful networks."

2.27 In a regionally based appeals service, it would be possible to create a cadre of specialist clerks to service appeal panels. This would enable clerks to build up a more detailed and specialist knowledge of the law and the procedures, thereby enabling them to offer a more effective and efficient service to the panels and the parties to an appeal. This would also give clerks a greater degree of independence and place them within an effective support network.

Education Appeals Support Initiative

Extract from our visit reports:

" EASI is a model of good practice, with local authorities working together... I tried to encourage them to consider hearing each other's appeals, sharing clerks and panels, to reinforce independence. It would be good if the "free-standing" foundation and voluntary-aided schools could be encouraged to operate in a similar way."

2.28 We wish to highlight an initiative known as the Education Appeals Support Initiative (EASI), which comprises a group of admission and exclusion appeals clerks from a range of LEAs who meet every 6 months to share experiences and good practice in the conduct of admission and exclusion appeals. We have taken a keen interest in the work of the group and applaud the members for their initiative in getting this group started and maintaining its momentum. The group's members keep in close contact between meetings via e-mail, in order to share information and exchange ideas about such matters as recent court judgments or the latest policy initiatives affecting the panels. The Department takes an interest in the group and its officials regularly attend the group's meetings, to speak about the latest policy developments and to answer any questions the group's members may have.

2.29 We hope that the group will continue to meet and share good practice and would urge the Department to promote positively the EASI group's work. We would also urge the establishment of a similar group for panel members.

Representation

Extracts from our visit reports:

" Once the mother was invited to put her case, I suspect she was feeling quite cowed by the proceedings. With support and advice, or knowledgeable representation, there appeared to be a number of points she could have made which might have helped with her case. However, she tended to concentrate on the wrong things. After some fairly limited questioning, she was asked to sum up her case... I left feeling rather sad that the mother had suffered such a sterile experience, when I am sure it would have been possible to send her away with the feeling that she had had a good hearing."

" The parents on the whole represented themselves, or had a friend to help them. For some of them this was quite an ordeal, despite all the panel did to help, whilst for others who had been through this system several times with older children, less so."

2.30 Appearing before an appeal panel can be a daunting experience for many parents, despite the best efforts of the clerk and the panel. We have come away from many hearings with the impression that the parent(s) did not have a fair hearing, principally because they did not have the knowledge and/or experience to put their case properly and fully to the panel. It is often only by observing the panel's private deliberations that the unfairness of a hearing can be detected. We have concluded, therefore, that there is a need for parents to have access to specialist advice and representation, both in preparation for a hearing and on the day of the hearing to assist with the presentation of their case. We recommend that the information given to parents about the appeals process should, therefore, include details of where parents might obtain such assistance and advice locally.

2.31 The Sheffield Hallam study canvassed parents' views on what improvements might be made in the organisation of the appeals process. A strong theme in the responses concerned the need for more guidance and representation. Many parents said that they would like some kind of representation from the beginning of the procedure. Panel members expressed a similar view but also thought that this could become very legalistic and expensive.

The two stage process

Extracts from our visit reports:

" Nothing in the early part of the deliberations would have indicated that the panel was aware that there is a two stage process in these cases."

" Nothing in the procedure adopted in the hearing would have indicated to the parents, or reminded them, that this was a two stage process that the panel was undertaking."

" The Chairman explained the two stage process in a manner which the mother clearly understood."

" The Chair's explanation of the two stage process was very effective, translating the technicalities of "prejudice" into language which was more understandable, with the effect that the questions which emerged were all relevant."

2.32 We have observed shortcomings in respect of panel members' understanding of the two stage process in admission appeals. The two stage process comprises a first stage, where the panel must decide whether admitting the child or children would "prejudice" the provision of efficient education or the efficient use of resources. At the second stage (which only arises if the first stage test is satisfied), the panel must exercise its discretion in balancing the degree of prejudice against the weight of the parent's case for admission. (There are, in our view, three stages before panels consider the prejudice question they should first satisfy themselves that the admission criteria have been properly applied, which, from our observations, many panels fail to do).

2.33 There appears to be some correlation between how well or otherwise the panels operate the two stage process and the extent to which panel members have or have not received training (which is covered more fully in Part 4). In the first two extracts the panel members had received little or no training, whereas the panels in the latter two extracts had received some training (although indicated their wish for more). This highlights why we place such high importance on the need for all panel members to receive appropriate training before they themselves sit on appeal panel hearings.

2.34 The apparent lack of understanding of the two stage process also suggests that some panel members (including some Chairs) are not sufficiently familiar with the Code of Practice on Admission Appeals, which includes a full explanation of the process. This is equally disappointing, and we would urge that every panel member should be given their own personal copy of the Code as part of their initial induction, and be required to refer to it.

Multiple Appeals

Extracts from our visit reports:

" There were 16 appeals to be heard, divided between the morning and afternoon sessions. The parents for the morning session were invited into the hearing room, and the Chairman proceeded to give a very full introduction. The panel asked a series of questions of the school's representative. Questions from the floor were asked generally by the more confident, articulate parents. The parties were then asked to withdraw and the panel quickly came to the view that the school succeeded at this stage. There followed a series of individual cases. In the afternoon the whole two stage process was repeated with a new set of parents. This was where a slightly unsatisfactory, but perhaps inevitable, feature emerged. The same evidence for the school had to be elicited, so that these appellants could hear and challenge it. The question and answer session between the panel and the school's representative therefore had the feel of "this is one we prepared earlier"."

" I also highlighted the problem of the panel not repeating their questions to the head teacher, as it meant that later parents did not know what had been elicited by the panel in earlier hearings. I ventured the suggestion that, after the first case, they could ask the head teacher to ensure that he commented in his presentation on issues which had been raised by questions in earlier cases."

2.35 Admission appeals usually arise at particular times in the academic year, when some of the more popular schools receive large numbers of appeals from parents who wish their children to be admitted to the school. The Code of Practice states that it is desirable that one appeal panel, comprising all the same members, considers all the appeals, and advocates dealing with them either in "grouped" or "individual" appeals. The "grouped" method involves going through stage one, where the admission authority presents the prejudice case for the school, with all the parents present, and then, if prejudice is established, going on to the second stage for each of the parents individually. The "individual" method, as its title suggests, involves dealing with both stages for each appeal individually.

2.36 The extracts from our visit reports highlight some of our findings in respect of our observations of hearings of multiple admission appeals. The Code of Practice states that either method is acceptable. Each method has its own advantages and disadvantages but, on balance, we favour the grouped approach to organising hearings. This appears to us to be fairer to parents, and avoids some of the artificiality involved in dealing with cases individually. It also reduces the risk of panels failing to deal separately with the two stages. The grouped approach also offers a certain advantage to those parents who are apprehensive or nervous, who can benefit from the questions put to the other side by parents who are more articulate and experienced.

2.37 We were pleased to note in the draft of the revised Code of Practice that the Department was advocating the grouped method as the preferred approach of the two where there were large numbers of appeals. We have urged that this be emphasised more fully in the Code, by highlighting the advantages of the grouped approach over dealing with cases individually.

Class Size Appeals

Extract from our visit reports:

" In my subsequent discussion with the panel, they agreed that most of these appeals were now a waste of time. It was almost impossible to prove that the LEA had acted improperly, and if only there were better communication with the parties, or if there were an advice agency which could assist parents, then many of these lengthy hearings would be unnecessary."

2.38 The extract from one of our visit reports is typical of the omments which are regularly made to us by panel members in respect of appeals against infant class size provisions. We have been concerned to learn from many panel members that they have refused to sit on class size appeals.

2.39 Broadly speaking, the class size provisions specify that infant classes may not contain more than 30 pupils with a single teacher. The circumstances in which an appeal panel can allow an infant class size appeal are quite limited the panel must show that the decision not to admit the child was not one which a reasonable admission authority would make in all the circumstances of the case, or that the child would have been offered a place if the admission arrangements had been properly implemented.

2.40 We have learned from a representative of the Local Government Ombudsman's office that, from the cases received by his office in respect of class size appeals, some panels appear to take too narrow a view of their jurisdiction in these cases; and in particular, fail to consider, first, whether the school admission arrangements have been properly applied; and secondly, whether the decision not to admit a child was unreasonable. In addition, the Ombudsman's office has noted a number of cases where factual errors have resulted in children failing the admission criteria, which when corrected, allowed them to be admitted subsequently. Some panels clearly need to take greater care to establish fully the facts of each case, rather than simply assuming that the facts as presented to them by the admission authority are correct.

2.41 Even taking account of the remedial steps suggested by the Ombudsman, it is clear that very few class size appeals are ever likely to succeed. And whilst we do not necessarily share the view that such appeals are "a waste of time", we do agree that parents' expectations of the likelihood of success of these appeals need to be better managed. This could be achieved through the provision of clear information about the class size provisions, and the limited circumstances in which an appeal panel may allow such appeals.

2.42 Some of the panel clerks in the EASI group have been working together to produce clear and comprehensive information leaflets for appellants in their own areas. We suggest that these could be adopted as a template for producing a standard format for this type of advice leaflet.

Admission Arrangements

Extracts from our visit reports:

" In both February and May, it was not known whether other appeals would be forthcoming. In February, the panel allowed a sizeable number of appeals. In consequence, there was far less flexibility in May, and most were refused. However, soon after that, a number of parents who had been holding two school offers for their child made their decisions, and let the school know that they were withdrawing. In consequence, there was more flexibility again in July, when several more appeals were successful... This worked very unfavourably against those who appealed in May."

" There were two unsatisfactory elements in the figure of 250 in respect of pupils already admitted. At the time of the appeal hearing, places had not yet been offered by public and grammar schools in the area. Annually, this has the effect of reducing the number of pupils seeking entry to this school."

2.43 The extracts from our visit reports highlight the effect of the lack of co-ordination in admission arrangements between admission authorities, and the resulting impact on appeals, according to the time of year an appeal is heard. This leads to a particularly unsatisfactory outcome for some parents. Better co-ordination between admission authorities, particularly as regards the timetable for deciding on admissions for the prospective academic year, would do much to improve matters. Furthermore, it would also be helpful if parents were required formally to confirm acceptance of an offer of a school place by an agreed date (either locally, regionally or nationally) so that, by the time appeals are being heard, final admission numbers have been agreed among all local schools.

2.44 We were pleased to note that the Department's consultation on new school admission arrangements addressed this issue, and proposed a common timetable for local school admissions. We have urged in our response that the new arrangements should also include a common cut-off date for acceptance of all offers of school places by parents.

The Panel's Decision and Reasons

2.45 Our Framework of Standards, at paragraph 1(d)x, states "Decisions should wherever reasonably possible be given on the day of the hearing, and if not, as soon as possible thereafter. They must be supported by reasons, explained clearly to the parties, and if given orally, confirmed in writing. Reasons should identify findings of fact, apply the relevant law and explain the decision".

2.46 We have expressed concern in the past about the lack of substantive reasons in the written decisions of admission panels. It is not sufficient in giving reasons simply to repeat the words of the Act. Recent decisions of the courts have required panels to provide more detailed reasons for their decisions. The revised Code of Practice states "The panel must communicate the decision, and the grounds on which it is made, in writing to parents and the admission authority". We would have liked to see included in the Code some sample model decision letters, which would be a helpful means of improving the standards of written decisions across the board.

Voluntary-Aided and Foundation Schools

Extracts from our visit reports:

" The panel was convened by the clerk to the governors, who was also the Headmaster's secretary. The accommodation arranged was in the school's music Department ... which was not neutral territory... There was nobody to greet the parents, and the first person they were likely to meet was the Headmaster, because he conducted the case for the governors, and was constantly coming and going from the hearing room between each case."

" The panel did not very clearly demonstrate their independence from the school, and it was plain that parents did not really understand that the panel were independent. Each of the panel members knew some of the parents, usually as a result of worshipping at the same church. The pragmatic solution arrived at was that only the other two members of the panel would vote in such cases. Since the panel is supposed to have a minimum number of three, I presume this was improper, but the clerk did not object."

" My unease is increased by the absence of real independence. Jokingly, when they talked about allowing a large number of appeals, one member said to another "You won't be invited back next year if you do that". This seems to me to be a true word spoken in jest. Although they would no doubt have been prepared to act independently from the school, the panel did not actually recognise the need to do so, and no doubt the school is happy with that state of affairs... The panel members' sympathies appeared to remain with the school rather than the parents."

2.47 Our programme of visits to admission appeal hearings included a number of visits to hearings in respect of foundation and voluntary-aided schools, which are their own admission authorities. Despite an instruction in the Code of Practice on Admission Appeals asking admission authorities to notify the Council of the dates on which they are due to hold appeal hearings, only a dozen or so schools regularly contact us. We therefore wrote to around 500 foundation and voluntary-aided schools reminding them of the need to notify us of forthcoming hearing dates. A number of schools wrote back subsequently, advising us that the reason we had not heard from them was that they had elected to let the LEA arrange their appeals on their behalf. However, we remain concerned that we do not hear from the vast majority of foundation and voluntary-aided schools.

2.48 The extracts from our visit reports represent some of our key concerns following our visits to voluntary-aided and foundation schools' panel hearings. We acknowledge that these cases, which highlight some of the worst examples of bad practice, involve schools which may not have had to deal with many admission appeals in the past and not built up any level of expertise. We have also observed some well conducted hearings of appeals in respect of those voluntary-aided and foundation schools which have built up a good level of expertise arising from the high levels of appeals they receive each year.

2.49 Overall, we remain concerned about the following aspects of the operation of the appeal panels from voluntary-aided and foundation schools:

panel members are less likely to be recruited through open advertisement, and more likely via word of mouth or the Head Teacher's contacts. This has implications as regards actual and perceived independence both in the sense of how the panels perceive their own independence and in how it is perceived by others;
the panels are likely to be rather isolated, with little or no access to support and advice, and with few opportunities for networking with peers;
panel members are less likely to have received appropriate training;
hearings are more likely to take place within the school itself rather than in a neutral location; and
Panel clerks are less likely to have the necessary level of expertise to be able to provide the appropriate level of support and advice to the panel.

2.50 Many of our concerns about the operation of admission appeal panels for voluntary-aided and foundation schools would be alleviated if these schools' appeals were all organised and run by the LEA regionally. The LEA currently manages all exclusion appeals and has the necessary expertise to manage all admission appeals. We suggest that this change should be effected at the earliest opportunity.

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