The coronavirus outbreak placed significant pressure on local authorities in 2020 with staff being deployed to urgent response activities and less able to process placing requests and organise appeal hearings. Restrictions on social contact also meant that appeal hearings could not be held face to face. Therefore, changes to the regulations which govern the process for school placing requests, any subsequent appeals, and exclusion appeals were introduced for 2020. In a letter to the Presiding Officer, the Scottish Government noted that these regulations would be temporary and a review would be undertaken by February 2021. We noted that such a decision would be subject to any further waves of the coronavirus virus and any continuing restrictions.
The changes made to the regulations in April 2020 gave local authorities greater flexibility in the timeframes and manner in which they conduct the placing request and appeals processes (including exclusion appeals) in order to preserve parents' right of appeal, albeit within extended timeframes. This was needed due to the severe pressure that local authorities were under due to the coronavirus outbreak and, in relation to appeal hearings specifically, the need to avoid the risk of infection to local authority officers and members of the public through face-to-face hearings.
Local authorities have expressed their continued significant concerns about their capacity to support the school admissions placing request and consequent appeals process in 2021 due to the coronavirus pandemic. There is continuing uncertainty about the situation due to Covid-19 and restrictions remain in place which may affect staffing levels in local authorities and prevent face to face hearings all of which may negatively affect local authorities' ability to manage the placing request/appeals process in 2021. Additionally, we have engaged with the National Parent Forum of Scotland, the Children and Young People's Commissioner's Office and the Equality and Human Rights Commission to seek their views around how the 2020 regulations operated and their impact upon children.
Having consulted stakeholders and carefully weighed their views, we have decided to continue the provision for remote hearings and to adjust but retain extended timescales for the 2021 admissions round.
We plan to amend The Education (Appeal Committee Procedures) (Scotland) Regulations 1982, The Education (Placing in schools etc. - Deemed Decisions) (Scotland) Regulations 1982 and The Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005.
Our intention is for this to be a temporary measure and a review will be undertaken in advance of the 2022 admissions round, to again consider whether the pressures and restrictions due to the coronavirus pandemic have lifted.
Who will it affect?
The policy primarily affects parents and their children who have made a placing request and a smaller subset of those parents who appeal against the local authority's decision.
It will have a positive effect on local authorities and education appeal committees' ability to successfully conduct the placing request and consequent appeals process, and exclusions appeals. Although some elements of the process revert back to the pre-2020 timeframes overall the changes continue to give sufficient flexibility particularly around how appeal hearings are conducted so the process can be conducted effectively for the benefit of parents, children and young people. Without such measures there is the potential for local authorities and education appeal committees being unable to fulfil their statutory duties due to limited capacity arising from the current coronavirus outbreak. Parents continue to have the right of appeal against a decision to refuse a placing request, or exclusion.
These measures are not time limited but are intended to be temporary and we have undertaken to review these regulations before the 2022 admissions round. Their impact will be limited to those parents who appeal placing request decisions for entry to school in August 2021 and any ad hoc placing requests or exclusion appeals in the period to 28 February 2022. The data provided by 25 local authorities shows that in 2020, they received 21,587 placing requests. Following consideration of these placing requests, 627 appeals were conducted across the 25 local authority areas against the refusal of a placing request. In addition, there were 789 additional support for learning placing requests reported. Of these, 14 cases have gone to the Education Appeal Committee and 37 cases to the Additional Support Needs Jurisdiction of the Health and Education Chamber of the First-tier Tribunal.
With respect to exclusion appeals, the data provided by local authorities showed that twelve exclusion appeal hearings took place, all of which were resolved, with no onward appeals to the sheriff court.
What might prevent the desired outcomes being achieved?
The policy is intended to allow placing requests and appeals and exclusion appeals to be processed efficiently, reflecting the ongoing pressures and restrictions on local authorities and appeal committees, while minimising any detriment to families.
It is possible that, if the maximum time periods are required at each stage of the process, some parents' placing request appeals would not be resolved until after the new school term begins in August 2021. This would prolong uncertainty for the family, and, if the appeal is upheld, would delay their child from starting the academic year at the school of their choice
The data provided from 25 local authorities from the 2020 school admission round shows that by October 2020, when this data was received, only 5 appeal cases had not been resolved. Additionally, the data highlighted that authorities clearly tried to hold their appeals as quickly as they could, and close to their usual timetables, but this was not always possible.
The regulations will reduce the timescales for making decisions and holding appeal hearings but will continue to require authorities to ensure that appeal hearings are held as soon as reasonably practicable within these timescales. In order to comply with this duty, local authorities should aim to resolve appeals in good time to enable preparations for the new school year (e.g. allocating pupils to classes) and minimise the number of hearings held during the peak holiday period. The Scottish Government's guidance to local authorities will continue to emphasise their duty to act as quickly as possible to ensure appeals are resolved.
We believe that our approach of enabling hearings and exclusion appeals to be held remotely and reducing the length of the extensions offered in 2020 is proportionate, since there is still the potential risk to public health of holding appeal hearings in person and reflecting the severe competing priorities that local authorities may be under in responding to the coronavirus pandemic. Although this means there is a risk that not all children's school places will be finalised by the start of the new school year, the number of cases likely to be affected will be low, and only for a short period. Given the unprecedented nature of current situation we believe this is a balanced and equitable solution for all involved.
Existing guidance, Included, Engaged and Involved Part 2: Preventing and managing school exclusions , highlights that exclusions should only be used as a last resort. Exclusion should be a proportionate response where there is no alternative and it is important that the views of the child or young person and those of their parents/carers are taken into account. The amendments in relation to exclusion appeals are intended to minimise the impact on all pupils and enable an exclusion appeal hearing to take place that meets the needs of the pupil, their parents/carers and the education authority.
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