A New Way of Handling Parents Complaints about School Issues. Consultation Response by the Children s Legal Centre

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1 A New Way of Handling Parents Complaints about School Issues Consultation Response by the Children s Legal Centre The Children s Legal Centre is an independent national charity providing direct services, research, consultancy and contributions to policy development in the field of children s rights and child law. The Centre opened in 1981 as the major UK project for the International Year of the Child. It works in the UK and abroad and is funded by grants from central government, the Legal Services Commission, charitable trusts and private bodies. The Children s Legal Centre is one of the UK s leading providers of education law advice and casework, offering significant expertise in this field of law. The Centre is specialist quality marked and a preferred supplier for the Legal Services Commission; operating two major LSC funded education law contracts. The Children s Legal Centre (the CLC) welcomes the government initiative to improve current systems for the handling of parental complaints against schools, particularly the introduction of an independent review of complaints that have not been satisfactorily resolved at school level. The Director and Head of Legal Services at the CLC were asked by the Children s Commissioner (now 11 million) to prepare recommendations on behalf of the Commissioner for improvements in the handling of parental complaints of bullying in schools. Some of the recommendations made in the report are now being taken up in this consultation. The Children s Legal Centre believes that the introduction of independent review into the complaints system will be of considerable benefit to parents and to young people. QUESTIONS AT PARA 28 The CLC agrees with the principles for the characteristics of the new service subject to the following comments: It is important that the new service is regarded by parents and carers as completely independent of schools. This will not be achieved in our view if the new body is set up by the local authority as many parents regard the school and local authority as being closely linked and having mutual interests. The new body will be ineffective unless it has the power to consider complaints afresh and order remedies. Anything less than this will leave parents with the same sense of injustice that they feel under the present system. It is vital for parents to have access to proper advice so that they can access the new review process. This should be through independent organisations (see below). 1

2 COMMENT ON PARA 30 The CLC is one of the providers of education law advice on the CLA Direct Telephone Advice Service. We receive calls from the whole of England and Wales. Many calls are received from parents who have made complaints to school governors on a range of issues including failure to deal with bullying and failure to provide the support set out in statements of special educational needs. The effectiveness of dealing with such complaints varies widely from area to area and school to school. Some parents receive no more than a cursory letter from the Chair of Governors dismissing the complaint. This gives the impression that the governors have no independence from the school management team, and leaves the parent with a sense of grievance. In one instance the governors failed to respond at all to several letters of complaint sent by the parent. In other schools the governors respond more formally, and some will appoint a sub group to meet with the parent and investigate the complaint. In our experience this system is much more satisfactory, and usually results in full or partial resolution of the problem. QUESTIONS AT PARA 32 We believe statutory guidance is essential to ensure parity in all schools and all areas of the country. The guidance would assist governors as they would know what was expected of them. It would also assist parents as they would know what was expected and would be able to hold schools accountable. QUESTIONS AT PARA 33 The CLC would support mandatory arrangements. The CLC would expect all complaints policies to contain all the specified elements. QUESTION AT PARA 34 The CLC supports referral to governors of all unresolved complaints provided that the parent/carer/young person asks for such a referral. Schools should be obliged to inform parents etc of that option. QUESTIONS AT PARA 35 Many governors have never been involved in the handling of a complaint, and are not equipped to resolve one. School staff and governors should be given specific training on implementation of the new system including any statutory guidance. Complaints hearings should be formally clerked as should all governors committee meetings. 2

3 Clerks should be trained in complaints procedures so that expert advice is available to governors. This is particularly important in the primary school setting. QUESTIONS AT PARA 36 The CLC has no views or evidence about the effectiveness of existing mediation services in other fields. These services are, in our experience, never used in the education law context. Mediation would be a useful resource and should be made available where there is still sufficient trust between the parties for an agreement to be reached through a mediator. Unfortunately there are some situations where the parent no longer trusts any assurances made by the school, or the school staff feel that a parent is so irrational that no mediation will succeed. The effectiveness of mediation would have to be monitored once the new system is in operation. Mediation services should not be provided by the local authority as many parents would not regard such a service as truly independent. In our experience there are large numbers of parents who do not access the existing parent partnership services provided by local authorities because they do not accept their independence. QUESTIONS AT PARA 37 Reconciliation services should be available and should include the young person concerned as well as the parent or carer whenever this is possible. As stated above parents are more likely to access services they see as completely independent of the school and the local authority. QUESTIONS AT PARA 40 The CLC concurs that parents, carers and young people themselves should be able to access the service. Carers should include foster carers. Careful thought should be given to the position of looked after children living in residential homes who have no foster carer, or whose foster carer is not willing to access the system. These children will need additional help preferably from a trained advocate- to access the system, if the corporate parent fails to do so. There should be no minimum age. However, some young people will need access to advocacy services if they have no parent or carer who is willing or able to do so, on their behalf. 3

4 QUESTION AT PARA 45 The CLC agrees that discretion to dismiss is needed. However, clear guidance should be issued on the exercise of that discretion so that unreasonable decisions are subject to challenge. QUESTIONS AT PARA 48 In addition to the criteria set out in this paragraph, the independent should ensure that the school has carried out a thorough investigation of the complaint, and given the parent, carer or young person full opportunities to present their views. The CLC believes it is essential for the independent service to be able to consider the merits of the complaint, as well as its handling. Anything less will be regarded by an aggrieved parent as an inadequate remedy. This power would put the new body into the same position as an independent exclusion panel considering the decision to permanently exclude as to both merits and procedure. QUESTIONS AT PARA 52 The suggested remedy make amends is too vague. There needs to be a clear range of options that the reviewing body can order to ensure that the school makes amends; for example the provision of additional tuition or additional learning aids for the young person. Consideration should be given to allowing the independent body to order financial compensation of a moderate amount. Sometimes the parent has incurred considerable additional expense because of a school s failure. They may, for example, have been forced to pay for additional therapy, out of school tuition, or counselling for the young person due to bullying. If the new service were assigned to the LGO the principles for award of compensation would be familiar in any event. QUESTION AT PARA 62 The CLC agrees in principle that the reviewing body should be able to consider complaints relating to teachers and school staff. However, the government will need to issue clear guidance to schools on how to deal with staff when the complaints process is underway, e.g whether or not such staff should be suspended, or have no contact with the young person. We anticipate that this will be one of the most contentious areas of the proposals and will be resisted by those stakeholders representing teachers and other school staff. 4

5 QUESTIONS AT PARA 69 The LGO powers would be sufficient provided that schools were directed to comply with the recommendations save in exceptional circumstances. The CLC has some concerns about the length of time it would take to resolve complaints given that the resources of the LGO are already stretched. Strict time limits should be laid down for the investigation and resolution of complaints given that, in most cases, the young person will continue to be educated in the school whilst the complaint is considered. The CLC does not believe that a reserve power would assist. It could result in further delay before final resolution of the complaint. QUESTIONS AT PARA 72 The CLC believes that the LGO is the best fit with the principles of the complaints service, would be able to provide the best service for parents, and would be able to organise the most efficient service for the parent. However, the Schools Adjudicator may command wider credibility with schools. QUESTION AT PARA 77 The CLC would prefer an independent complaints review service. We believe that the alternative would create too much potential conflict of interest between schools and local authorities, and would not be regarded as truly independent by parents/carers. Local authorities should not be given the power to direct schools. One area in which this would create conflict is when a child is not receiving the support set out in a statement of special needs. The local authority may choose to direct a school to take action to remedy this rather than providing the additional resources needed by the school to meet the child s needs properly. Such a service would provide little improvement on the current system. QUESTIONS AT PARA 79 The existing parent partnership services could assist parents to select the correct point of entry where parents are willing to access those services. Schools should be obliged to provide information about the different complaint routes. The new service should also provide information perhaps via website and telephone enquiry service. The letters sent to parents following permanent exclusion provide details of ACE, an independent organisation advising on education law issues. When writing to a complainant about the outcome of any complaint, the school 5

6 governors should be obliged to provide details of ACE and other organisations providing advice in this field such as the CLA Direct Education Law Advice Line and IPSEA. QUESTION AT PARA 80 The CLC concurs. QUESTION AT PARA 81 Such complaints could be considered by the independent review service. Amendments would be required to the current SEN Code of Practice. However, our preferred option would be for the jurisdiction of the SENDIST to be extended to enable it to hear complaints about non-provision and enforce the contents of a Statement. The panel members at SENDIST are experts in the field of SEN, and are, in our view, better placed to consider whether the provision made is compliant with a Statement. The SENDIST already hears complaints of a similar nature in the field of disability discrimination. QUESTIONS AT PARA 82 The CLC concurs that the Secretary of State s powers of direction should be removed from him, and placed with a new independent reviewing service sited with the LGO. QUESTION AT PARA 83 The CLC is cautious about this approach. If interpreted widely, it could render the service ineffective or inaccessible. There are several situations which give rise to complaints, and in which an application for judicial review is theoretically available but may not be suitable due to the cost, or difficulty in obtaining permission to proceed. The complaints system should still be available in those circumstances. The Administrative Court requires applicants to exhaust all alternative remedies before making an application for judicial review. Complainants could be caught in a loop. Also existing proceedings may be in relation to slightly different issues than the complaint, or the proceedings may not be able to offer a full remedy. QUESTION AT PARA 84 The CLC concurs that a pilot scheme would be helpful. However, we feel that the system needs urgent change across England and Wales. We urge the government to instigate the pilot as soon as possible and to limit the pilot to a maximum of six months before its effectiveness is evaluated and rolled out across the jurisdiction. 6