Local authority appeal panels "should hear appeals for all schools": AJTC

Local authority appeal panels should hear admission and exclusion appeals for all schools in their area, including academies, the chairman of the Administrative Justice and Tribunals Council (AJTC) has argued.

In a letter sent to Education Secretary Michael Gove on 22 February, Richard Thomas said the AJTC supported the findings and recommendations of the Academies Commission’s report Unleashing Greatness – getting the best out of an academised system.

After examining the current arrangements for admission appeals, the Academies Commission concluded that:

• The present system was unnecessarily complex, and this was exacerbated by the various distinct arrangements for determining or challenging admissions arrangements and individual appeals, depending on whether a school was maintained or an academy;
• A proliferation of ‘own admission’ authorities comprised a threat to social mixing and equality of access to high quality school provisions;
• In the case of schools/academies that were their own admission authorities, it was unsatisfactory that Foundation and Voluntary Aided schools and academies ran their own appeal panels. Full independence needed to be ensured, following the principle of natural justice that no-one should judge her/his own case.
• All schools and academies should be subject to the Admissions Code in the same way, just as the government is moving towards a level playing field for school funding (irrespective of whether a school is maintained or an academy).

The Commission also recommended that the Education Secretary should identify an organisation that is well-placed to provide an independent appeals service, to be instigated and run in a quasi-judicial manner. It also recommended that the Local Government Ombudsman’s powers should be extended to hear complaints concerning the maladministration of admissions and admission appeals of all admissions authorities (whether from maintained schools or academies).

Thomas said these findings and recommendations chimed closely with the findings in a report produced in 2003 by the AJTC’s predecessor body, the Council on Tribunals (CoT). This set out concerns at that time about the operation of school admission and exclusion appeal panels.

“Of course, this report pre-dated the creation of academies but raised the same concerns about schools which are their own admission authority running their own appeal panels, highlighting the perceived lack of independence of such arrangements,” Thomas said.

“The same is now true of academies whose panels lack any semblance of independence, and whose operation was never brought under the oversight of the former CoT and the AJTC (which the Commission’s report omitted to mention).”

Thomas added: “Moreover, not only do these panels lack independence their operation lacks any degree of transparency or public accountability since there is little or no information published about them – for example, the cases that they hear are not included in the official appeals statistics produced by the Department, either for admissions or exclusions.”

The AJTC chairman said the most obvious solution – in relation to the Academies Commission’s call for an independent appeals services – was for for local authority appeal panels to hear admission and exclusion appeals for all schools in their area, “including those for voluntary aided and foundation schools as well as academies”.

Thomas added local authorities already had a cadre of trained and expert appeals clerks and panel members, usually situated in the democratic services department, with an appropriate degree of separation from those involved in managing local admission arrangements.

“Indeed, some local authorities already manage the appeals for own admission authority schools in their area, including academies, under a special arrangement with the schools in question,” he pointed out.

“We do not believe that this suggestion would be inconsistent with the ethos of academies having freedom from local authority control as it is important to remember that the independent appeal panels are concerned solely and primarily with access to justice. The issue of prime importance is the perceived independence of the appeals arrangements rather than where they are situated. Moreover, the local authority retains overall responsibility for ensuring the provision of education for all children in the area.”

The AJTC chairman suggested that an independent appeals service should not focus exclusively on admission appeals – which appeared to be the Commission’s recommendation – but also deal with exclusion appeals.

“It is even more iniquitous that the body which is responsible for taking a decision to exclude a child from school should also be responsible for managing the independent appeals system for challenging its decision,” Thomas argued, adding that the AJTC had on a number of previous occasions suggested that exclusion appeals should be heard by the First-tier Tribunal (SEND).

This would be in recognition of the fact that around 80% of exclusion appeals involve children with SEN.

“Indeed, there is already a degree of overlap in jurisdiction between exclusion review panels and the First-tier Tribunal (SEND), which simply creates confusion for parents about where the right of appeal lies in particular cases,” the AJTC chairman wrote. “It would be sensible to put this beyond doubt once and for all by having all exclusion related appeals heard by the First-tier Tribunal (SEND).”

As an alternative, Thomas suggested, the Education Secretary might wish to consider whether the appeals arrangements for both school admissions and exclusions should be brought into the unified system within Her Majesty’s Courts and Tribunals Service.

The AJTC is a statutory advisory body which was established by the Tribunals, Courts and Enforcement Act 2007 to oversee the administrative justice system and listed tribunals. ‘Listed tribunals’ include independent admission appeal panels, the recently reconstituted exclusion review panels and the Schools Adjudicator, all of which fall within the AJTC’s oversight.

A copy of the letter can be viewed here.