Admissions appeals, Admissions code, Appeals code

Admission appeals: how to avoid litigation

Admissions authorities and statutory appeal panels can avoid potential litigation from parents by using tactical decision making, says Yvonne Spencer

This article expands on Admissions and appeals, the new codes explained, in Education Law Update last month, and critically analyses how admissions authorities and statutory appeal panels should tackle their decision-making in order to avoid potential litigation by parents.

Many readers will be aware that the previous statutory schools admissions guidance has, over the years, led to a number of complaints by parents to the local government ombudsman and has also resulted in applications for judicial review to the High Court.

The new codes of practice on schools admissions have more potent force in that many of their provisions are mandatory. It is possible to effectively head off such claims, providing that admission authorities and independent appeal panels consider some of the points outlined in this article.

Training for panel members

The school admission appeals code at paragraph 1.32 stipulates that admission authorities (usually local authorities) must arrange and fund training for appeal panel members covering the specific functions of their role as described in the school admission appeals code.

Panel members must not take part in hearings until they have received such appropriate training.

Clerks
The clerks appointed to admissions appeals panels must also receive training. The admissions appeals code is very specific about the content of such training — and there can be no excuse for local authorities failing to make such training provision.

Paragraph 1.34 of the code states that experienced and long-serving panel members need to keep up to date with changes to admissions law and the codes. Admissions authorities must ensure that they are given at least an annual update.

Selection criteria

Paragraph 1.33 of the admissions appeal code stipulates the following selection criteria for panel members, which take account of prescribed training:

1. that within the year from 1 March 2007 to 29 February 2008 appeals panel members must have served as a clerk to, or member of, an appeal panel (this ceases to have effect on 1 March 2010); or
2. panel members must, within the last two years, have been given training on the following:

the requirements of the appeals regulations
the contents of any code made under section 84 of the Schools Standards Framework Act 1998
the role of the chair of an appeal
the role of the clerk to an appeal panel
the role of panel members
the duties of an appeal panel under the Human Rights Act 1998, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Equality Act 2006
the need for the appeal panel to observe procedural fairness and the rules of natural justice.

Procedural fairness

Procedural fairness is one of the grounds for parents bringing judicial review claims to the High Court of admissions appeal panel decisions. This is, therefore, a particular area where appeal panel members would be best served by having practical training that keeps them abreast of developments in case law.
This should be combined with training to develop panel members’ practical skills in relation to chairing appeals and helping to make parents feel at ease.

The New Two-Stage Test

The code on admission appeals at paragraph 3.1 states that all appeals, other than those against decisions made on the grounds of the infant class size prejudice, must follow a two-stage process:

First stage — establish the facts
The panel considers whether the school's published admission arrangements were correctly applied in the individual's case. And the panel decides whether 'prejudice' would arise were the child to be admitted. If prejudice in favour of the school is proven, the panel moves onto the second stage.

Second stage — balance the arguments
The panel exercises its discretion, balancing the degree of prejudice to the school against the parents' case for their child being admitted to the preferred school. This deliberation must be considered and balanced before the panel arrives at its final decision.

At the first stage the panel must consider two separate issues:

Whether the over-subscription criteria for the school and coordinated admission arrangements were correctly and impartially applied to the child concerned and if not, whether the child would have been offered a place had they been properly implemented.

Whether or not there would be prejudice caused by the additional admission of the child. If this is the case the admission authority must be able to demonstrate this over and above the fact that the published admission number has already been reached.

The guidance requires panels to consider a number of factors including, in light of current school organisation structure, what additional effect admission would have on later year groups or on the current year group.

Over-subscription criteria

Is the independent appeal panel required to consider the lawfulness of the over-subscription criteria?
This question has been considered in the case law — see for example: The School Admission Appeals Panel for the London Borough of Hounslow v The Mayor and Burgesses of the London Borough of Hounslow (2002).

Under the School Admissions Code 2007 the more detailed and stringent prohibition against the inclusion of certain factors within admission authorities' over-subscription criteria may mean that in the course of an appeal, the question might arise as to the lawfulness of those criteria.

For example, if a school's catchment area maintains a certain demographic favouring children from parents of middle income and middle class backgrounds, this might fall foul of the admissions code paragraph 2.13.

This states that, in setting over-subscription criteria, the admissions authorities for all maintained schools must not give priority to children according to the occupational, financial or marital status of parents.

Distance criteria
It is possible that certain distance criteria might indirectly discriminate against the less well off and in fact fail to achieve the degree of social inclusion the code seeks to achieve. What in these circumstances should an appeal panel do?

This point was dealt with by the Court of Appeal in the Hounslow decision. The case decided that statutory appeal panels are not required to hold a 'mini public law hearing'. Normally a panel will be entitled to assume that a school's admission policy is lawful and does not infringe the European Convention on Human Rights. Equally the panel is not required to consider whether the over-subscription criteria should be subject to challenge in the High Court through a judicial review.

In the Hounslow case, the local authority contended that the panel had no business to question the admission criteria. On the other side the parents' case attacked the admission criteria's unlawfulness in light of human rights considerations.

The parents also submitted evidence on individual circumstances — but this was not the main battle-ground, which instead relied on the unlawfulness of the admissions criteria. What was the panel to do?

Fairness — the essential question
The judge in the case decided that the essential question for the appeal panel should have been whether, in light of the admission arrangements, it was fair for the admission authority to refuse to admit the particular child. Each particular appeal should concentrate on that question in relation to each particular child.

This requires the independent appeal panel to seek evidence from the admissions authority as to how the over-subscription criteria were applied in each case in point. The judge did not consider that it was appropriate in the circumstances for cases to be referred on for judicial review, as the purpose of the independent appeal panel is to make a swift decision.

New Remedies under the Admissions Code 2007

Thankfully the new school admission appeals code provides a procedure whereby parents can refer cases to the admissions adjudicator, including cases regarding the lawfulness of over-subscription criteria.

The schools adjudicator has a key role in ensuring a fair admission system by enforcing the requirements of the code and considering whether any departure from the statutory codes can be justified.

Objections
Once the adjudicator receives an objection about any maintained school, he may consider the admission arrangements for the school as a whole, not just the specific subject of the objection, and the effect of these in the context of all of the admission arrangements in the area (see paragraph 4.16).

Order of referral
Sensibly this takes the heat away from the independent appeal panels but in these exceptional circumstances thought should be given as to the order in which the referral is made to the adjudicator.

For example, should this be prior to the parents' appeal? Or should the appeal be adjourned pending the adjudicator's decision? The new code of practice has not legislated for this.

Written reasons

There is a duty on independent appeal panels to provide written reasons for their decisions.

Paragraph 5.10 of the code states that the decision of an appeal panel and the grounds on which it is made must be communicated by the clerk in writing to the local authority, governing body and the parents concerned by the end of the second school day after the conclusion of the appeal hearing.

In order to avoid potential judicial reviews from parents, independent admission appeal panels should take care to ensure that their written decision provides sufficient reasons for the decision reached.

The letter should explain in full why the appeal panel decided that the individual circumstance of the parent's case were considered sufficient or insufficient to outweigh the prejudice arguments of the admission authority, making reference to any other issues raised by the parent which were considered by the panel.

Standard letters

The use of standard protocol decision letters by independent appeal panels was an issue in the case of C v Appeals Panel of Nottinghamshire (2004). The Court of Appeal considered the use of such letters by panels, which might prove particularly expedient if there is a high volume of parental appeals.

On this point the deciding judge said: 'There may be run-of-the-mill cases which can be dealt with by letter in very much standard form. But it is in my judgement important that an appellant, and in particular an unsuccessful appellant knows broadly why his appeal has been unsuccessful.

‘The issue of lack of grounds and the unlawfulness of such an approach can find no remedy other than through judicial review proceedings and therefore this is something that ought to be considered in order to avoid unnecessary litigation.'

Twice-excluded pupils

There may be appeals by governors against decisions of the local authority to place twice-excluded pupils within a community or voluntary controlled school.

Chapter five of the admissions appeals code provides for a new appeals procedure to be utilised by schools' governing bodies against the decision of the relevant local authority to place twice-excluded pupils in the school.

The appeal by the governing body must be made in writing no later than 15 school days after the day it is given notice of the authority's decision and must give the grounds on which the appeal is being made.

Local authorities
Local authorities are not required to make these arrangements where their decisions are in the form of directions made under section 96 of the School Standards Framework Act 1998, which empowers the local authority, in prescribed circumstances, to direct a foundation or voluntary aided school to admit a particular pupil.

Governing bodies
Similarly governing body objections to local authority directions to admit children in care who have been twice permanently excluded do not come under the remit of these appeals but can be referred to the schools adjudicator.

When these cases are brought by governing bodies of a community or voluntary controlled school the independent appeal panel must be constituted in the same way as a parent's appeal and must meet on a day determined by the local authority not later than 15 school days after the day on which the appeal is lodged.

In considering the appeal, the independent appeal panel must consider:

the reasons for the local authority's decision to admit the child
any reasons put forward by the governing body as to why it does not want to admit the child.

These appeals must be heard in private with representatives of the local authority and governing body being present.

The panel has the discretion to allow a member of the local authority or governing body to attend as an observer.

Communicating the decision
The decision of the appeal panel and the grounds on which it is made must be communicated by the clerk in writing to the local authority, governing body and the carers concerned by the end of the second school day after the decision of the appeal hearing.

Find out more...
You can download the school admissions code, and the new school admissions appeals code and other information and advice

The Education (Admissions Appeals Arrangements) (England) Regulations 2002

C v Appeals Panel of Nottinghamshire [2004] EWHC 2988 (Admin)

The School Admission Appeals Panel for the London Borough of Hounslow v The Mayor and Burgesses of the London Borough of Hounslow [2002] EWCA Civ900

Guide to the law for school governors (new edition January 2008)

Yvonne Spencer is a partnership member and head of education and public law at Fisher Jones Greenwood LLP

For advice and information about admissions appeals and in-house training courses for panel members, contact 01206 835230

This article first appeared in Education Law Update - Mar 2008

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