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Education Appeal Committees in Scotland

This Special Report by the Scottish Committee of the Council on Tribunals was laid before the Scottish Parliament in June 2000.

Overview

This Special Report, which has been supported by the Council on Tribunals, is made to Scottish Ministers under the terms of the Council's and the Scottish Committee's governing Act, the Tribunals and Inquiries Act 1992.

The Scottish Committee's aim in preparing this report is to identify the concerns over the operation of education appeal committees in Scotland which have been observed by its members at various appeal committee hearings over the last three years.

In particular, the Report considers and makes recommendations in respect of:

the venues used for hearings
the lack of training - both general and human rights - available to committee members
the problems of the unrepresented appellant
the deliberative stage of the hearing
the COSLA Code of Practice

The Scottish Committee asks that those responsible for legislating and for operating this appeal system consider carefully the recommendations contained in this Report.

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Part 1: Introduction

The Purpose of this Report

1. The Scottish Committee has expressed concern publicly about the way in which the education appeal committee system in Scotland has been allowed to develop over the years.

2. We accept that admission procedures and discipline questions present great difficulties for schools and education authorities. We have no expertise in these matters and cannot comment on them. But we are concerned that when Parliament has provided for the review of admission and exclusion decisions by committees which are intended to be independent of the education authorities, the processes are often seriously unsatisfactory.

Independence and Integrity

3. The Council on Tribunals has published a statement of general principles of the fundamental purpose of tribunals and concluded that the principal hallmark of any appeal tribunal was that it must be independent and equally importantly it must be perceived as such. The preconditions for achieving these aims are:

proper rules of procedure;
high quality appointments of chairmen and members;
proper training for chairmen and members;
appropriate standards of judicial performance, with guidance and support for chairmen and members (including the means for monitoring performance, particularly of newly appointed chairmen and members);
the freedom to take judicial decisions uninfluenced by resource or other external considerations;
proper administrative support in terms of hearing clerks and support staff, legal and other text books;
adequate and appropriate hearing accommodation in premises which are not connected with one or other parties; and
sufficient resources properly allocated to meet those needs.

Framework for this Special Report

4. This Report considers the extent to which education appeal committees (EACs) matched the pre-conditions set out above. We record our findings as to how we found the education authorities in Scotland operate the education appeal committee system against the Council's benchmarks for a satisfactory hearing.

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Part 2: Education Appeal Committees in Scotland

What is an Education Appeal Committee?

5. The Education (Scotland) Act 1980 provided the foundation for the establishment of the education appeal committee system in Scotland. Every education authority has a statutory duty to appoint an education appeal committee, but it is important to establish right at the outset that it is not a committee of the authority, but should be an independent body which operates under the supervision of the Scottish Committee of the Council on Tribunals under the Tribunals and Inquiries Act 1992.

6. Under section 28c of the Education (Scotland) Act 1981, provision is made to provide all parents with the right of appeal against decisions of the education authority as to the schools, excluding nursery schools or classes, their children should attend. These are known as placing appeals. Section 28h of the Act also provides parents with the right of appeal against decisions of the education authority to exclude a pupil from school. These are known as exclusion appeals. The placement and exclusion appeals are the type we most frequently observe. There is another appeal mechanism under section 63 of the Act which provides rights of appeal to the parents of pupils recorded as having marked or continuing special educational needs. The opportunity for the Scottish Committee to visit this type of appeal is quite infrequent and therefore the majority of our comments in this report relate to placing and exclusion appeals. However each education authority must establish appeal committees to consider all three of these types of appeals. The Education (Appeal Committee Procedures) (Scotland) Regulations 1982 set out in detail the procedures which these committees must operate under.

Constitution and Membership of an Education Appeal Committee

7. An education appeal committee is required to be made up of three, five or seven members who are to be nominated by the authority. The membership must comprise members of the authority (that is, elected councillors) or of the authority's education committee (which could include teachers or religious representatives and co-opted members), and other people who are either: (a) parents of children of school age; (b) persons who, in the opinion of the authority, have experience in education; or (c) persons who, in the opinion of the authority, are acquainted with the educational conditions in the locality. Individuals who are employed in the education department of the authority cannot be members. As it is vitally important that parents have confidence that they will receive a fair hearing from an education appeal committee, education authorities should take care to avoid any choice of members that may give any appearance of bias.

8. The regulations stipulate that the members of an education appeal committee who are members of the authority or of the education committee of the authority will not outnumber the other members of the appeal committee by more than one. A person who is a member of the education committee of the authority may not act as chairman of an education appeal committee, nor may any person who had a part in, or was even present at, discussions about the subject-matter of an appeal be a member of an education appeal committee. The procedural rules also stipulate that teachers, pupils, parents of pupils or school board members at or of what is known as a "relevant school" may not be members of the education appeal committee. A "relevant school" means, in relation to a reference to the appeal committee, the school which the child to whom the placing request relates attends; the specified school; the school which the education authority proposes that the child to whom the placing request relates should attend; a school from which pupils are normally transferred to the school and the school from which the pupil has been excluded. This is the structured framework under which the appeal committees should operate.

Notice of Appeal

9. Any appeal must be lodged with the education appeal committee within twenty-eight days of the receipt by the parent of the decision of the authority. Under certain circumstances the appeal committee can seek to extend this period of time.

Hearings

10. The Regulations state that the education appeal committee must afford the appellant an opportunity of appearing and making oral representations and in all cases a time and place of hearing must be appointed. The notification which is given to an appellant must include a statement as to his or her rights:-

to appear or to be represented at the hearing;
to be accompanied at the hearing by up to three friends including the person (if any) representing the appellant;
to lodge written representations; and
to allow the presentation of the case to rest on written representations, if any were lodged on the appellant's behalf.

Procedures

11. The Regulations stipulate that the education authority must, in accordance with a pre-determined procedure, appoint a panel of persons from whom appeal committees can be constituted. The procedure for the selection of members and appointment of chairmen from the panel must also be pre-determined. Additionally, the procedure for appointing chairmen must have regard to the desirability of capitalising on previous experience in the conduct of hearings.

12. At the commencement of a hearing the chairman of the appeal committee shall state the procedure which the appeal committee will adopt and unless the appeal committee decides otherwise the proceedings will be conducted in the following order:

presentation of case for the education authority;
questioning by the appellant;
presentation of case for the appellant;
questioning by the education authority;
summing up by the authority; and
summing up by the appellant.

The appellant or any one person who is representing the appellant and the education authority represented by any one person duly authorised for the purpose will be entitled to call evidence, to question any person giving evidence including the appellant and any officer of the education authority and to address the committee with the details of their case.

13. The chairman has certain discretionary powers to disallow questioning that is elaborate or repetitive.

Decisions of the Appeal Committee

14. The chairman of the appeal committee should inform the appellant and the authority whether the committee proposes to notify its decision, with the reasons for it, in writing at the conclusion of the hearing after the appeal committee deliberates the evidence or at some later date. If the appellant is not present or represented at the hearing, then immediate written notification of a proposal to defer the decision must be given to the appellant. It is important that the decision is fully and clearly expressed and capable of being understood by a lay person.

15. If the appeal committee is not in a position to announce its decision at the end of the hearing a written decision with full reasons for that decision must be sent within fourteen days from the date of the hearing. Where it is appropriate, the letter must inform the appellant of any right of appeal to the sheriff and the time limits that will be applicable.

16. In order to reach its decision each member of the appeal committee will, for the purpose of the committee reaching a decision, be obliged to cast a vote either in favour of or against refusing to confirm the decision of the education authority to which the appeal relates.

The Clerk to the Committee

17. Each appeal committee should have the services of a clerk whose role should be fully explained to the appellants. The clerk should normally be an appropriate officer of the local authority and will be responsible for arranging the hearings and ordering the business at the hearing. The clerk should be an employee who, in the course of his employment by the authority, does not deal regularly with the admission of children to school or the exclusion of children or children with special educational needs. Basically there should be no conflict of interest. The clerk will be expected to take notes and record decisions, the reasons for the decision, and generally ensure the smooth running of the hearing on the day.

18. It will also be one of the clerk's duties to remain with the committee during the deliberative stage and when necessary offer advice on procedures.

19. The clerk should keep brief notes of the proceedings, who was in attendance, the voting process and record the decisions in such a form previously agreed by the authority.

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Part 3: Issues Relating to Education Appeal Committees in Scotland: Our Views

Our Procedure

20. Through our visits programme we have attended more than 20 education appeal committee hearings taking place in fourteen education authorities over the past three years. This may seem a rather small sample of the 500 or so hearings which are held in Scotland each year, but the evidence of the underlying trends is so clear that we believe that we are well able to draw significant conclusions. We have also had discussions with officials of the Scottish Executive and of the Convention of Scottish Local Authorities (COSLA) and with an academic expert.

Venues used for the hearings

21. It is a basic requirement that in order for an individual to receive a fair, impartial and independent hearing the venue for the hearing itself has to be located in a neutral setting. This is particularly the case when, as here, people forming part of the elected authority are part of the appeal committee. We appreciate that this is sometimes easier said than done. Our experiences show that the majority of the education appeal committee hearings that we have visited takes place outwith the actual education authority building, although there are times when it does not. We have found that some authorities have taken steps to utilise marriage registration offices, municipal buildings and on occasion the Council's city chambers. These facilities are adequate in a physical sense but not sufficiently separated in appellants' minds from the authority making the decision. However some education authorities persist in holding the hearing in premises which are closely linked to the authority. This practice will provide an appellant with the notion that the hearing is being held in premises which favour the authority - the body that they are in dispute with. To some this may seem a very minor point, but if the hearing is to be perceived as being fair and impartial right from the outset then all education authorities should take measures to ensure an independent venue is chosen. We see no reason for education authorities to compromise this position and we do not believe that it is too difficult to organise a hearing in an acceptably neutral location: community centres, for example, have been used satisfactorily by some authorities. We would therefore urge all authorities to consider this issue and to organise the hearings in a venue that shows no favour to either side.

22. The premises used must also be accessible, not only to the disabled but also to a parent with young children. Many, but not all, traditional Scottish local authority buildings have been suitably modified but access must also be uppermost in the minds of those arranging appeal hearings. Later in this report we discuss the impact that the European Convention on Human Rights legislation could have on tribunal systems. It is relevant that all authorities will need to comply with this legislation and it will be necessary for hearings to be conducted in a location which is deemed to be suitable.

Committee Clerks

23. Clearly, clerking for these appeal committees cannot be a full time job. We have found a number of instances where the appeal committee clerk spends most of his or her time as a clerk to a committee of the local authority, commonly the education committee. This arrangement is liable to establish too close a link with the authority when the business of the appeal committee is to stand in judgement on the authority's decision. Undue familiarity with some of the parties to the appeal has been apparent and that damages the perception of the committee's independence.

Training

24. This is an area of the education appeal system which has greatly concerned us for some time and has merited considerable comment in our recent Annual Reports. We should say that it is not a problem which is unique to education appeal committees, indeed it is a common thread which runs through several Scottish tribunal systems. We consider that this problem really needs to be treated urgently. We should be clear at the outset that we mean basic skills training in communication, weighing up evidence, being and being seen to be impartial, dealing with people whose mother tongue may not be English.

25. It is safe to say that there is a somewhat fragmented approach to the training provided by the education authorities towards those involved with this particular appeal system. There are some authorities who do provide training packages to the members of the education appeal committee. The authorities are to be congratulated on their efforts. Unfortunately however this is not the case throughout the whole of the country. Some authorities offer no training at all to the members of the appeal committees; we know from our discussions with some panel members that they would welcome training. It concerns us that other members of education appeal committees do not recognise the need or importance of training, clearly relying on adopting a "common sense" approach to see them through the day. This is not enough - we cannot emphasise enough the importance that we attach to proper training being readily available to the committee members. We suggest that specific training programmes should be available for the chairmen, members and clerks: each role has a number of individual requirements and the training they receive must take account of this factor.

26. If a consistent approach to training is to be adopted it is our view that there is a need for some considered central management initiative to provide a basis for it. We know the traditional view is that training is the responsibility of each local authority but based on our experience that is clearly not working in relation to education appeal committees: we suspect they are not considered as high priority. We suggest a national training programme for education appeal committees be introduced which will ensure a standard approach is adopted throughout the country. An appellant in Aberdeen should receive exactly the same standard of hearing as an appellant living in Dumfries; this is not happening at present. This Committee finds it totally unacceptable that each authority has been left to organise training as it sees fit with the result that training is given neither priority nor resources. We hope that the Scottish Executive might take note of the actions of the Department for Education and Employment with regard to training for equivalent panels in England.

27. We understand from discussion with COSLA officials that COSLA is willing to review its role in relation to these committees. COSLA's role in relation to the committees has been restricted to the publication of its Code of Practice, which is discussed at paragraph 39. COSLA has no monitoring role and does not collect basic statistics about practice and levels of activity in each local authority area. Nobody seems to know what percentage of appeals is allowed; in the exclusion field it appears to us that the proportion may be quite small. In only one of the cases we visited as part of this Special Report was the appeal upheld. If this is representative it provides food for thought in relation to the working of the system. We would welcome greater involvement from COSLA in this field and hope it will not take too long to arrange.

28. But subject to the conclusions that COSLA draws we believe that there is a need for the Scottish Executive to review the overall working of the appeal arrangements. The Executive's predecessors in The Scottish Office were responsible for introducing the legislation which established these committees twenty years ago and we believe that the time is now ripe for them to think further about their working. The Executive needs to consider whether membership of the committees is constituted in such a way as to assess fairly and properly the matter under appeal. The Executive needs to consider, in particular, whether there should be a standing requirement for the provision of training, combined with a requirement that an individual should not be allowed to participate as a chairman or as a member of the appeal committee until he or she has attended specified training sessions: this policy is adopted in some other tribunal systems. This might require some form of monitoring to be carried out by the clerks but it would be a small price to pay for consistency.

Human Rights Training

29. The introduction of the Human Rights Act will inevitably have a major impact. Under the Act's provisions any public authority - which includes courts and tribunals - will have to interpret legislation in a way which is compatible with the European Convention on Human Rights. We believe it is imperative that all tribunals are made aware of the implications that this will have on their hearing system. Not only will the chairmen and members of the tribunal, or in this case education appeal committee, need to be aware of the human rights issues, they will have to be mindful of any knock on effect which the provisions of the Convention could have on the operation of their own system. We doubt that members of a local appeal committee fully realise that it will be unlawful for them to act in a way which is incompatible with the Convention rights.

30. In 1999 the Committee was concerned that organisations responsible for tribunals in Scotland may not have given due consideration to the impact that the European Convention on Human Rights will have on domestic law, particularly Article 6 which covers an individual's right to a fair trial. We undertook some basic research to ascertain the awareness level. Although we were encouraged to find that most tribunal systems were aware of human rights issues and were taking steps to advise their membership accordingly, the response from local authorities was mixed. It was indicated at the time that a number of authorities would institute relevant human rights training but our recent visits to education appeal committees has not borne this promise out. Whilst we have not been able to visit every education authority - and we do not wish to castigate those who have provided information - the committees we have visited continue to be somewhat ignorant of the bearing that human rights legislation could have on the decisions they are entrusted to take. We are not necessarily saying that decisions are being made in error or indeed contravening human rights policies, but we are saying that at the very least those involved with this or indeed any tribunal system should be aware of the consequences of their hearing arrangements, actions and decisions.

31. At the beginning of this year the Scottish Executive took steps to issue core guidance to all public authorities in Scotland on the Human Rights Act and the European Convention on Human Rights. We welcomed this positive step but we know that in certain authorities it has not been cascaded down, as it should have been, from chief executive to all members of the likes of an education appeal committee.

The Unrepresented Appellant

32. A common feature of this appeal system, both in placement and exclusion cases, is that in the majority of hearings that we have observed the appellant, usually one of the parents, will be unrepresented. This is obviously a decision which they themselves have to make, but we believe that the individual is placed at a disadvantage by doing so. The appellant will probably never have appeared before a tribunal, will have little knowledge of the law under which this system operates and will probably not be at all prepared for the events that will unfold at the hearing. The education authority inevitably will be well represented at the hearing and there is therefore a clear imbalance. Representation is all the more important because of the adversarial nature of the system, although we acknowledge that many education appeal committees do try to be fair.

33. We would like education authorities, when sending out notification of the hearing and appeal rights, to suggest to appellants that they would benefit from seeking professional advice on the merits of their case. Legal aid can be available, in certain circumstances, for general advice from a solicitor in advance of a hearing and this could assist an appellant to judge if the case is worth pursuing. We accept that it would fall to an appellant to meet the costs of any legal representation at the actual hearing but we do feel that this should be explained to them in advance by the authority so that appellants may make their own judgement. An alternative to professional advice might be advice from a person in the authority, independent of education, such as someone in the social work department or a welfare rights officer.

34. We also suggest that education authorities adopt a policy of having an early meeting with appellants in order to discuss the details of the case and to ensure that parents and others representing the child are fully informed. Whilst everyone is entitled to go forward to a hearing, and we would want that to continue, we know that some cases have little chance of success, particularly in relation to class sizes which are dictated by government policy. We believe it is important for this to be appreciated ahead of any hearing so that false hopes and expectations could be avoided.

Deliberations and Notification of Decision

35. The Regulations stipulate that at the conclusion of the hearing the education appeal committee should take a vote to decide upon the issues that need to be addressed. Our experiences have shown that there is widespread misinterpretation of this instruction and on occasion we have been alarmed at the way in which decisions have been reached by the appeal committee. We have viewed hearings where decisions are taken on a show of hands without discussion and without considering the facts of the case and adopting a structured approach to reaching a conclusion. Indeed at times the legislative framework to which the committee is legally bound seems to be paid scant attention. Offering guidance to the committee on the regulations should be fundamental to the clerk's role: not seeking to influence the committee's decision but ensuring that the statutory procedure is adhered to. This is another essential element in a formal training programme.

36. The essence of the appeal committee's task is to establish the facts of the dispute and consider how the law has to be applied to these facts. Where there is uncertainty, the regulations provide for the issue to be settled by a vote. Voting is of course an everyday procedure in local government. But votes on administrative matters in local authorities are often cast on the basis of each councillor's disposition for or against general policies. In appeal committee deliberations which we have seen too little attention was, in our view, paid to the precise matters which the regulations prescribe as the proper basis for voting decisions. Remedying this will need sensitive handling in any training programme.

37. At the conclusion of deliberations the chairman must inform appellants of how and when the committee's decision will be conveyed to them. On most occasions this will be done orally followed by a written notification. We would urge the use of simple language both in the hearing and in giving full and clear reasons in the written notification together with precise details of any further appeal rights the individual may have.

Nameplates

38. It is indicative of the sometimes casual approach to ensuring a fair hearing that at some education appeal committees there is a complete disregard for the need for nameplates. This may seem a trivial point but given the number of people who can be involved in a hearing - including the committee itself, parents, school representatives, educational and health experts - the event can be intimidating to the appellant and we believe it is only fair that nameplates are used especially so that parents and children's representatives are aware of who is making what could be a major decision about a child.

Convention of Scottish Local Authorities (COSLA) Code of Practice

39. In January 1988 the Convention of Scottish Local Authorities, in consultation with the then Scottish Office Education Department and ourselves, produced a Code of Practice for the constitution and procedures of education appeal committees in Scotland. This is basically an aide-memoire for committee members which takes them on a step-by-step guide through the appeals system. The information is as relevant today as it was then. When we visit education appeal hearings one of the first points we enquire about is whether appeal committee members have their own copy of the Code and what use do they make of it. It dismays us to discover often that a member has never heard of the Code never mind operate its guidance. This is an invaluable reference tool and a source of information which should be readily available to everyone concerned with the education appeal committees. It is strange how some committees act on this code and others are ignorant of its existence. We would urge all education authorities in Scotland to obtain sufficient copies of the code to provide each member of their education appeal committees with their own personal copy.

40. We mentioned our discussion with COSLA officials earlier. One positive step to come out of that discussion was COSLA's willingness to consider updating the Code to introduce elements relating to human rights legislation and to reproduce the document in plainer language. This would be a positive step forward and hopefully a revised Code could be distributed directly to anyone responsible for, or involved in, an education appeal hearing.

Special Educational Needs

41. At the beginning of this Report we mentioned briefly that the third type of hearing for an education appeal committee was that concerned with special educational needs. This is in marked contrast with England and Wales where special needs cases are considered by a dedicated Special Educational Needs Tribunal. Very few special needs cases in Scotland seem to reach the hearing stage and as a consequence we have had only limited opportunity to observe how education appeal committees handle such cases. We have to presume that any problems in special needs cases are being resolved without the requirement for a hearing. The Committee is aware that the Scottish Executive has produced detailed guidance on the Special Needs system and this source of good advice may be the underlying factor why few decisions are being appealed against.

42. Many of the recommendations we have made in respect of the placement and exclusion appeals would probably also apply to committees that have to consider appeals of this nature, particularly in regard to selection of members and to training. In these specialist cases we believe it is imperative for appellants to seek professional assistance. This could be through the family solicitor, the Citizen's Advice Bureau or the Independent Special Education Advice Group.

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Part 4: Conclusion

43. The Scottish Committee believes that the concerns in this Report should encourage the Scottish Executive Education Department and the education authorities in Scotland to work more closely together to provide a structured tribunal system which works within a national framework.

44. In our view there is a real and urgent need for relevant training to be provided for those involved with education appeals in Scotland.

Summary of Recommendations

We recommend that:-

authorities use a venue which is independent and easily accessible
authorities should ensure that there is no conflict between the duties of clerks and their other work
COSLA reviews its role
The Scottish Executive reviews the constitution and working of EACs
a national training programme be established which requires panel members to attend before hearing an appeal
the existing core guidance literature on the implications of the Human Rights Act is made available to each panel chairman and member
authorities should advise appellants, as a matter of course, to seek professional advice and that authorities should adopt a policy of holding pre-hearing meetings
appeal committees adopt a structured approach to their deliberations and adhere to the regulations governing this part of the procedure
steps are taken to ensure decisions are conveyed in simple language with full reasons being given
nameplates are used at all hearings
authorities make it a requirement for appeal committee chairmen, members and clerks to have a copy of the COSLA Code and to follow its principles

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Appendix

The Scottish Committee

The Council on Tribunals and its Scottish Committee are independent advisory bodies first established in 1958, following the publication of the Franks Report on Administrative Tribunals and Enquiries and now operating under the Tribunals and Inquiries Act 1992.

The principal functions of the Council and the Scottish Committee, as laid down in the 1992 Act, are:

to keep under review the constitution and working of the tribunals specified in Schedule 1 to the Act, and, from time to time, to report on their constitution and working;
to consider and report on matters referred to the Council under the Act with respect to tribunals other than the ordinary courts of law, whether or not specified in Schedule 1 to the Act; and
to consider and report on these matters or matters the Council may consider to be of special importance, with respect to administrative procedures, which involve or may involve the holding of a statutory inquiry by or on behalf of a Minister.

The Background to the Special Report

The Scottish Committee has been considering for some time whether its Annual Report is the best way of drawing attention to the very substantial information it acquires about the working of tribunals in Scotland. That information comes to us from our programme of visits to hearings, from the statistics that we collect and from the discussions we have with people with relevant experience and expertise. We believe that in this way we are able to build up an informed view about the working of tribunals which no other organisation can match.

But the Annual Report by its nature involves bringing together a large amount of material about the wide range of bodies that we supervise. Its timing has to depend on the preparation and collation of that material and whatever date is chosen for publication can hardly be the most opportune time for making known our views on each particular system. We have therefore concluded that we should take advantage of our statutory powers and prepare special reports from time to time on particular topics of clear concern.

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Education Appeal Committees in Scotland

Contents:

Overview

Part 1: Introduction

The Purpose of this Report

Independence and Integrity

Framework for this Special Report

Part 2: Education Appeal Committees in Scotland

What is an Education Appeal Committee?

Constitution and Membership of an Education Appeal Committee

Notice of Appeal

Hearings

Procedures

Decisions of the Appeal Committee

The Clerk to the Committee

Part 3: Issues Relating to Education Appeal Committees in Scotland: Our Views

Our Procedure

Venues used for the hearings

Committee Clerks

Training

Human Rights Training

The Unrepresented Appellant

Deliberations and Notification of Decision

Nameplates

Convention of Scottish Local Authorities (COSLA) Code of Practice

Special Educational Needs

Part 4: Conclusion

Summary of Recommendations

Appendix

The Scottish Committee

The Background to the Special Report