The guidance is non-statutory and explains the temporary changes to the Education (Appeal Committee Procedures) (Scotland) Regulations 1982 (“the 1982 Regulations”), the Education (Placing in Schools Etc.–Deemed Decisions) (Scotland) Regulations 1982 (“the Deemed Decisions Regulations”) and the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005 (“the 2005 Regulations”). It also provides guidance for managing the placing request process and appeals processes during the coronavirus (COVID-19) outbreak for placing requests made under the Education (Scotland) Act 1980 (“1980 Act”) and the Education (Additional Support for Learning) (Scotland) Act 2004 (“the 2004 Act”) and appeals against exclusions of pupils under the 1980 Act.
It provides guidance to education authorities and appeal committees who are required to comply with the above regulations.
We have made new regulations which draw back some of the amendments made by the Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 and the Education (Deemed Decisions) (Coronavirus) (Scotland) Amendment Regulations 2020 (collectively “the 2020 Regulations”). The 2020 Regulations extended the timeframes education authorities have to process placing requests and appeals, including exclusions appeals, and enabled appeal hearings to be held remotely.
In 2020, as the impact of the coronavirus pandemic began to be felt and schools were closed, education authorities expressed significant concerns that they might not have the capacity to meet the original statutory timescales in relation to school admissions placing requests and exclusion appeals. In light of these difficulties, amendments were made to the relevant regulations in April 2020, which extended key timescales to provide greater flexibility for education authorities and education appeal committees during the 2020 school admission round. The measures introduced for the school admissions round of 2020 were not expressly time limited but were intended to be temporary. However, it was noted at the time that if there was to be a resurgence of the coronavirus either prior, or subsequent to, revocation of these changes, consideration would have to be given to retaining the changed timescales or introducing similar measures again, depending on the circumstances.
The procedures and timescales as amended by the 2021 Regulations apply to all cases, including those where an appeal has already been received.
The restrictions across Scotland introduced in January 2021, have confirmed that the 2021 school admissions round will not take place in a normal environment and that the coronavirus pandemic will continue to cause disruption. Concerns have been raised by education authorities around their capacity to deal with the 2021 school admissions round if we reverted back to the original statutory timescales. Following a review, we have reverted back to the original timescales for most procedural steps, whilst retaining some of the flexibilities in regard to certain timescales relating to decisions and hearings, and also in relation to how hearings are conducted. Appeal committees are urged to complete appeals lodged as part of the main admissions round before the start of new academic year, wherever possible. Additionally, it is a requirement in the 1982 Regulations that an appeal hearing should be held as soon as practicable within the statutory timescales.
These amendments seek to balance the rights of parents and children alongside the restricted capacity of education authorities and the requirements of operating remote hearings, given the continuing and potential pressures arising from the coronavirus pandemic response. It is paramount that children and young people’s education and life chances are impacted as little as possible during the coronavirus pandemic and these measures seek to mitigate the pandemic’s impact.
The vast majority of the requirements in the regulations relating to placing requests and exclusion appeals remain unchanged from the provisions that applied prior to 2020 and must still be complied with.
In addition, and for the avoidance of doubt, references in this guidance to placing requests include requests made under the 1980 Act and the 2004 Act, (where the appeal route lies to an education appeal committee and not the First Tier Tribunal for Scotland, Health and Education Chamber) and the guidance relating to appeal procedure applies to appeals to education appeal committees on placing request refusals and exclusion decisions.
Further information specific to placing requests for pupils with additional support needs appeals appear in the Annex .
The Choosing a School Guide is available online and has been supplemented with additional information about arrangements for the 2021 admissions round. Education authorities can continue to signpost parents to these documents.