The government has decided against allowing school admission appeals to be held by panels of just two individuals due to concerns over the fairness of this setup - but remote admission appeals over video or telephone have been given the green light.

The proposals for two-panel and remote admission appeals were put forward in a consultation on the Schools Admission Appeals Code in February in order to see if new measures brought in for the pandemic should remain due to the flexibility they brought to those involved in the process.

At the time, legal experts said they thought the idea of two-person appeals could cause consternation among parents - especially if the two members disagreed, as the chair’s decision would be final, effectively meaning a decision was being made by one person.

This issue was indeed raised in the consultation by respondents and as such the Department for Education (DfE) said that it had “decided not to go ahead with the proposal” for two-person panels.

“Concerns were raised about the fairness or perceived fairness of a panel of two deciding an appeal and, in cases where the remaining panel members disagreed, the chair having a deciding vote and the appeal effectively being decided by one person,” it said.

Notably, though, this decision actually goes against the majority of the consultation feedback, which was positive on two-person panels, with 82 per cent of respondents saying they agreed that “admission authorities should have the flexibility to allow a panel of two to continue”.

Listening to the minority

Laura Berman, a partner at law firm Stone King, said that, despite this, it was clear the government had “erred on the side of caution” - likely because it was not clear enough in its initial proposals about when two-person panels would be utilised.

“It was clear from the proposed wording in the consultation that two-person panels were only going to come about in exceptional circumstances and, in fact, the majority of respondents to the consultation supported the proposal,” she said.

“However…the circumstances in which a two-person panel would be appropriate were not defined tightly enough and there was a chance that this could lead to further complexity and delay, which ultimately defeated the purpose of the proposal.”

Fiona Scolding QC - a public law barrister with expertise in education law, who previously told Tes that any move to two-person panels should happen only in “exceptional circumstances” - agreed and said it seemed “a sensible decision not to reduce panel numbers” given the fairness concerns that had been raised.

Rob Williams, senior policy advisor at the NAHT school leaders’ union said he agreed it would be ”be less than ideal if such an important decision potentially sat on the shoulders of a single person”.

However, Tomas Thurogood-Hyde, assistant CEO of Astrea Academy Trust, said that, while it was a positive that a minority view had won the day - underlining that engaging consultation responses can be worthwhile - not moving forward with two-person panels seemed like a “missed opportunity”.

“The concern that the chair could have a casting vote out of two would have been easily mitigated by introducing a requirement for unanimity in two-person panels - this was proposed to the department during the consultation. The government is making welcome steps to speed up admissions and to bring certainty; this flexibility would have been in that vein.”

As such, he said, this idea should not disappear forever but be considered again in future adaptations of the admissions appeals process.

“The Department needs to consider going further in its next consultation - for example, in allowing governors to determine appeals in the same way they do exclusions; allowing a paper sift of appeals so that only those with genuine merit come to panel; and returning to the question of two-person panels.”

Geoff Barton, general secretary of the Association of School and College Leaders (ASCL), said the organisation had supported the move to two-person appeals panels as it seemed a ”pragmatic approach to ensuring that an appeal could continue to be heard without it being delayed with the resulting anxiety to students and parents” - but said the decision the DfE had made was a reasonable one.

”However, we understand the concern expressed about the perception of fairness, and the decision that has been made not to proceed with this proposal,” he added.

Tes asked the DfE if it would consider revisiting the two-person panel appeal idea but had received no reply at the time of publication.

Remote appeals

Elsewhere, though, plans for remote appeal hearings to be maintained will go ahead after 93 per cent of respondents said they should be kept.

“We are proceeding with changes to the Appeals Code to allow the option to hold appeals by video conference,” the DfE said.

“Appeal hearings are not public meetings, and there is no need for them to take place in a public forum as a consequence.”

Although these can be held over video or phone, the DfE said that schools would only be able to use phone conferencing when video was not possible.

“Appeal hearings held entirely by telephone are permitted only where video conferencing cannot be used for reasons relating to connectivity or accessibility and if the appellant and presenting officer both agree.”

Thurogood-Hyde said this move was welcome: ”Allowing video appeals is a welcome modernisation, preserving one of the few benefits to come from the pandemic.”

Barton from ASCL also said he was “pleased that the government is going ahead with changes to the Appeals Code to allow the option to hold appeals by video conference”.

Finally, Williams at the NAHT said bringing in technology to this aspect of school life could help avoid “unnecessary delays to the process” of admissions appeals and so should be welcomed.

”The use of a technology for remote meetings could provide a more accessible format for attendees with specific needs, such as mobility and language needs, and they could also assist parents who require advocacy support,” he added.

The new School Admission Appeals Code will be enforceable from 1 October 2022.

Dan Worth is senior editor at Tes