In an earlier blog today, my colleague Jonathan Auburn posted a link to the new school admission appeal regulations, or (in full) The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. You can also find them here:- https://www.legislation.gov.uk/uksi/2020/446/made.
The key (rather complicatedly formulated) change is in new reg 7 of, and Sched 2 to, the 2012 Regulations, which are introduced by regs 6-11 of the 2020 Regulations. Para 2 of the new Schedule 2 applies where the coronavirus crisis means that it is not reasonably practicable for either party to the appeal to appear in person (as the School Admission Appeals Code would otherwise require). In such a case (emphasis added to bring out two points I refer to later on):-
2(1) An appeal panel may decide to hold an appeal hearing using remote access provided—
(a) the parties are able to present fully their case;
(b) each participant has access to the electronic means to allow them to hear and be heard and (where using a live video link) see and be seen, throughout the appeal hearing; and
(c) the panel considers that the appeal is capable of being heard fairly and transparently.
(2) Where any of the conditions prescribed in sub-paragraph (1)(a) to (c) are not met, an appeal panel may make their decision on the appeal based on the written information submitted
“Remote access” means:-
“access to an appeal hearing to enable those who are not all present together at the same place to attend or participate simultaneously in the hearing by electronic means, including by live audio and live video link.”
There are a couple of points here.
First, though para 2(1) says that a LA “may” (for Covid reasons) hold an appeal remotely if the three conditions (a)-(c) are met, does it really mean “must if an in-person appeal can’t be held because of the virus”? The alternative to holding the appeal remotely is doing it on the documents (para 2(2)) which is said to be an option only if any of the three conditions in para 2(1) are not met. It seems to me that this means that LAs which cannot hold a in-person appeal because of the virus have to hold it with remote access unless one of the three conditions (a)-(c) is not fulfilled.
Second, what does “remote access” require? The phrase “including by live audio and live video link” might be ambiguous if you considered the definition on its own: does it mean a link allowing both audio and video access, or does it mean that either an audio and video link, or audio on its own, is enough? It must mean audio alone is enough as that is implied by the words in brackets in condition (b) in para 2(1). Whether audio alone would allow the conditions (a) and (c) to be met is a different issue.
The 2020 Regulations also include provisions allowing an appeal panel to have two members for Covid related reasons; and imposing new time limits for the appeal procedure.
Peter Oldham QC