The Case for an Education Appeals Tribunal in the Tribunals Service

Sheila Sturgeon is the admission and exclusion appeals clerk for Oxfordshire and the co-ordinator of the Education Appeals Support Initiative (EASI). In her paper School Admission and Exclusion Appeal Panels – A Lack of Independence she makes the case for an independent Education Appeals Tribunal within the Tribunals Service.

This article has also appeared in Education, Public Law & the Individual (Volume 10 Issue 2 Summer 2006) published by ELAS.

1 Introduction

1.1 This paper examines the lack of independence of school admission and exclusion appeal panels and explores the case for the establishment of an Education Appeals Tribunal (EDAT) in the Tribunals Service. It refers to the Council on Tribunals' (CoT) Special Report on School Admission and Exclusion Appeal Panels (May 2003) and supports the general tenet and findings of that report and takes some of its main recommendations further.

1.2 This paper is the personal view of the author who is employed by a Local Authority (LA) as clerk to school admission and exclusion appeal panels. The author is also the Co-ordinator of the Education Appeals Support Initiative (EASI) Group referred to in paragraphs 2.28 and 2.29 and Admission Appeals Recommendation 8 in the aforementioned CoT report.

1.3 The paper is written from the perspective of appeals being organised by LAs. However, many of the points made regarding a lack of independence also apply to the appeals organised by Voluntary Aided (VA) and Foundation (F) schools.

LACK OF INDEPENDENCE

2 The Local Authority (LA) funds the function itself

2.1 By virtue of the fact that the LA funds its own appeals function, this alone means LAs cannot be viewed as independent in any event. Furthermore, the LA must set aside sufficient funds in its budget for the appeals function including sufficient sums for training. However, not all authorities appreciate the importance of such training and, therefore, not all clerks and panels are as up to date as they should be. (See CoT report - part 4)

• Example:
  At the first London EASI Group meeting most attendees had not heard of a particular judgment, which they should have been aware of, to properly advise admission appeal panels.

2.2 When the LA judicially reviews a decision of the Panel it bears both its own legal costs as well as the costs of the Panel. This can have an adverse effect on how the LA decides to proceed and it is understood that it has deterred some LAs from taking such a course of action which is unfair on the LAs themselves.

2.3 Legislation requires that panel members be indemnified against all reasonable legal costs as a result of any such High Court actions. Therefore, panels should not be reliant on decisions of the LA regarding such serious matters when defending their decisions.

• Example:
  In at least one LA, when a parent wished to judicially review a panel's decision the LA was not minded to defend the panel due to the costs involved.

3 Appointment of Panel Members.

3.1 The legislation requires that the LA appoints its panel members. The LA not only recruits and appoints its panel members but also often trains them. The general view held by both staff and panel members is that appellants cannot regard the panel members as being truly independent of the LA in these circumstances.

4 Perception of Independence of Appeal Staff and Panels

Appeal Staff

4.1 The clerks and appeal administrators, even though they are usually employed on a permanent basis in either the Committee/Democratic Services or Legal Section of an LA, are not seen as independent by the staff themselves as well as the parties to the appeals. (See CoT report – para 2.27)

4.2 Even where the clerks are employed on a casual basis they are still paid by the LA.

• Example:
  In one authority many of the appeal clerks employed on a casual basis are former headteachers of that LA, which easily gives the impression of bias towards the LA as well as a lack of independence.

Appeal Panels

4.3 Parents often consider that panels are instruments of the Education Department (ED) in the LA.

• Examples:
  
  1. Parents often address the panel members as though the panel members are employees of the ED even where they have just been informed that the panels are independent of the LA.
  2. When a panel member is (or was) a (Head)teacher employed by the same LA as that of the panel, as the law and regulations allow (in exclusion appeals one panel member must be or have been a Headteacher within the last five years – although not necessarily employed by the particular panel's LA), parents are not satisfied that that panel member is either independent or impartial by the very fact of that employment. (See CoT report – para 2.15)

5 Undue Influence on appeals staff

5.1 The staff in the ED - the Chief Education Officer (CEO) or other officers in the ED - bear undue influence on the appeals officers.

• Example:
  In at least one authority, the appeals section is to be found under the supervision of the CEO as Director of his/her section and the CEO ordered that the panel members should visit the schools that were subject to admission appeals and this is not permitted in the Appeal Code of Practice.

5.2 Even where the appeals function is in a different directorate/department, the ED officers persuade appeals officers' managers that the appeals staff should take certain courses of action which places the appeals staff in an invidious position.

• Examples:
  
  1. In one LA, where the appeals function is based in the Legal Services section, the ED wanted to have input on the Guidance produced for parents and was allowed to even though the clerk objected to it.
  2. 1. In another LA, when the ED did not like the panels' decisions regarding the panel's interpretation of the published admission arrangements, ED Admissions staff met with the clerk's senior officers and insisted that at the next training session held for the panel members the School Admissions Officer would be allowed to train the panels on their admission arrangements.
     2. Despite the clerk arguing that this was inappropriate because the panels had already been advised about admission arrangements in the general terms of the law and it was a question of how the panels interpret the LA's published admission arrangements (as established in case law), the senior officers acquiesced to the ED's request that their officer be involved in the next training session. This was even though the clerk had also expressed concerns that, when an ED officer had previously been included in the first training session the clerk had ever delivered to panel members, it was quite clear that the ED officer's involvement in the training had swayed that particular group of panel members in favour of the LA and the clerk determined that it was inappropriate to allow that to occur again.
  3. In one LA, the ED insisted that the appeals data and statistical information should be maintained on the ED's database. It is doubted that any other tribunal is required to only record any appeals information on one of the party's database.

6 Undue Influence on Panel Members

6.1 The staff in an LA's Legal Department (LD) bear undue influence directly on the panel members, particularly where a panel has made a decision that the LA's LD disapproves of, to the extent that the services of the panel members are suspended or terminated.

• Example:
  In one authority, where this had occurred and the ED judicially reviewed the panel's decision, the judge criticised the conduct of the LA's LD regarding the suspension of the panel members and also found in favour of the Appeal Panel on the other points raised in the case. However, the practice of suspending or terminating the services of panel members is still prevalent albeit on a minor scale.

7 Independence of Legal Advice

7.1 The LA's Legal Department staff are often required to give legal advice on the same issue to different departments of the LA. This creates particular difficulties when there is only one lawyer with education law experience and responsibilities.

7.2 Chinese walls often have to be created when advice is obtained from a LA's legal department even in large LAs. This is not viewed as satisfactory by the staff themselves and sometimes the wall is not even created.

• Examples:
  
  1. In several authorities, the same legal staff advise both the school admissions team and appeal clerks and, in at least one small authority, directly advises the appeal panel in the appeal hearings.
  2. In at least one LA, a headteacher sought advice from the education law solicitor before excluding a pupil, then the ED also sought advice after the permanent exclusion, and then the appeal panel clerk sought advice from the same solicitor when the pupil's parent appealed against the permanent exclusion and, finally, the solicitor acted for the appeal panel when the panel's decision was judicially reviewed in the High Court. This is most unsatisfactory and nor is it fair on the lawyer concerned.

7.3 A further difficulty can arise regarding legal representation of the panel. When a parent judicially reviews a panel's decision the LA's lawyer will normally act for the panel. However, when the ED judicially reviews a panel's decision, in most LAs the Legal Department will act for the ED and the panel has to find its own legal representation. This approach may be regarded as inconsistent by panel members and certainly not a position in which any panel should find itself. Also, panel members sometimes perceive that the LA favours the ED in these instances.

8 Role of the clerk

8.1 As identified in the CoT report, the role of the Clerk is "usually an add-on to the individual's main job, which can often have a negative effect on the way the individual operates in that role". (See CoT report – paras 2.25 – 2.27)

• Example:
  In a survey conducted by EASI Group, 40% of respondents stated that senior management did not attach sufficient importance to the role of clerk to the appeal panels or the school appeals function.

9 Clerks' Conflict of interests with other duties

9.1 Where appeal clerks are based in Committee/Democratic Services, their duties normally also include servicing and/or advising the LA's committees. However, there may be a conflict of interest when the appeal staff, particularly those who clerk appeals, have to service committees dealing with issues involving local school organisation and school admission issues.

• Examples:
  
  1. In several LAs the appeal staff service and advise the School Organisation Committee (SOC) which deals with opening and closing of schools and other changes local schools wish to make e.g. the age range of a school's intake. Now that SOCs no longer actually make decisions regarding school admission numbers this is not so critical.
  2. 1. However, the School Standards and Framework Act 1998, as amended by the Education Act 2002, required each LA to establish an Admission Forum which provides a vehicle for admission authorities and other key interested parties (but not including appeal panels or staff) to discuss the effectiveness of local admission arrangements, seek agreements on how to deal with difficult admission issues and advise admission authorities on ways in which their arrangements can be improved. Furthermore, admission authorities must have regard to any advice given by the Forum for their area.
     2. In at least one LA, the appeals staff service their local Forum which gives rise to a conflict of interest when advising appeal panels on issues relating to school admission arrangements at a later date as they would also have advised or, at least, been party to meetings whereby those admission arrangements had been discussed and/or agreed.

10 Other matters relating to perception of independence:

Location of appeal hearings:

10.1 In many LAs appeals are heard in LA buildings, albeit not ED premises. LA premises (usually the LA's committee rooms) are used as they are free and the budget does not always include the costs of hiring accommodation elsewhere.

• Example:
  Panel members have expressed concerns that parents cannot view them as independent when they hear appeals in LA premises.

Panel members' expenses:

10.2
i. The LA determines the rate of panel members' expenses.
ii. The LA also actually pays the panel members.

• Example:
  In at least one LA, parents appealing against the permanent exclusion of their child queried if the LA was paying the panel members' expenses and objected to that fact on the basis that the panel was clearly not independent of the LA.

11 Appeals for Foundation (F) and Voluntary Aided (VA) Schools

11.1 Admission appeals for these schools are organised by the schools themselves and are perceived as even less independent than LA panels. However, some F and VA schools have opted for the LA appeals staff to hear their appeals.

11.2 The CoT report (paras 2.47 – 2.50) raised several concerns where these schools organise their own appeals and recommended that: "All admission appeals, including those for voluntary-aided and foundation schools, should be managed and run by LEAs regionally."

11.3 The CoT report noted that LEAs (now known as LAs) already manage all the exclusion appeals for these schools and have the necessary expertise to manage all the admission appeals.

THE CASE FOR ESTABLISHMENT OF EDAT IN TRIBUNALS SERVICE

12 Possible ways forward

12.1 On the basis of the evidence presented in the previous paragraphs, there is a very strong case for all F & VA school admission appeals to come under the auspices of the LA appeals staff. The CoT report made this recommendation (see Recommendation 15 – Admission Appeal Panels) and is still of the same view as a minimum course of action.

However, this recommendation can be taken further:

12.2 Many appeals staff and panel members do not consider that the LA appeal panels can be viewed as truly independent of the LA. This alone should be sufficient to argue that all the admission and exclusion appeal panels should no longer be organised by LAs.

12.3 The CoT report reflected this approach regarding Admission Appeal Panels:

"Recommendation 1 - In order to increase their independence and improve the quality and consistency of services to parents, admission appeal panels should be organised and managed on a regional basis (paras 2.11-2.12)".

Paragraph 2.11 stated: "...What we have in mind is an early reorganisation (albeit only an interim measure before a national system can be established) involving the grouping of all panels for 3 or 4 counties, or such other larger administrative area as is geographically manageable.

12.4 There are 150 LAs in England administering the school appeal process with varying degrees of resources and different methods of operation. This does not include all the VA and F schools that also operate their appeals processes separately.

12.5 The Audit Commission, in their response to the revised School Admissions and School Admission Appeals Codes of Practice (at the time of writing on hold pending a further review in the light of the Education Bill), recommended that there was a need for there to be a duty on councils (LAs) to ensure that all admission authorities' admissions and appeals procedures conform to common and consistent practices.

12.6 The EASI Group (see paragraph 1.2 of this paper), consisting of 20 LAs, was formed in 1999 in response to the members' need to no longer feel that they were working in isolation. In 2006, the number of EASI type groups that are known to the author and CoT has grown to six, involving approximately 90 LAs. These groups have evolved and grouped themselves naturally and could form the basis for the larger administrative regions as proposed in the aforementioned Recommendation 1 of the CoT Report regarding Admission Appeals.

However, this recommendation can also be taken further:

12.7 An article in the Times Educational Supplement (TES) (10 February 2006) regarding Academies (As) highlighted the fact that, according to a TES in-depth analysis of contracts, the academies are using their independence to, amongst other things, establish their own appeals system for exclusions and, at least two of the twenty seven academies, do not offer an independent appeal after a pupil has been permanently excluded.

12.8 In the same article, an education lawyer from Matrix Chambers commented that academies face mounting legal threats by parents who say academies abuse their independent status.

12.9 The education lawyer stated: "If you are a child in a maintained school you have the direct legal entitlements to do with exclusions, admissions and other areas that extend across the state sector. In an academy you do not have these same rights because each academy is bound by its own rules. There are some broad common themes, but each academy has a separate funding agreement."

12.10 In the author's view, where there is no right to an independent appeal hearing this probably infringes the Human Rights Act. If this is overcome by the fact that parents can mount legal challenges in the courts, academies would increasingly have to divert significant amounts of their budget to fund expensive court actions, which undoubtedly these schools would wish to avoid. Indeed, an academy recently requested Nottinghamshire County Council to organise an independent appeal hearing regarding a permanent exclusion from their school, which may indicate a preferred alternative to possible court actions.

12.11 Therefore, it would appear that there is an argument for all academies to make arrangements for appeals against admission and exclusion decisions to be heard by an independent body and it would make sense for that body to be the same one that hears appeals for all LA, VA and F schools to again ensure common and consistent practices.

12.12 Furthermore, the independent body should also hear appeals for the Trust (T) schools that have been proposed in the Education Bill 2006, as they are similar to Foundation schools in that they are independent from LA control.

However, this recommendation can also be taken further:

12.13 Paragraph 3.12 in the CoT report explained the basis for their recommendation that: "Exclusion appeals should be heard by the SENDIST" (Special Educational Needs and Disability Tribunal) as there is a recurring link between exclusion and special educational needs.

12.14 SENDIST hears disability discrimination claims for those pupils who have been given a Fixed Term Exclusion from school whereas School Exclusion Appeal Panels (SEAPs) hear such claims when pupils have been Permanently Excluded (PE).

12.15 Therefore, it would appear that there is an argument for SENDIST to hear all PE appeals and the author understands that a SENDIST Chairperson is currently putting forward that proposal to Lord Justice Carnwath.

12.16 However, there are a large number of PE appeals and not all of them include disability discrimination claims. If SENDIST heard all PE appeals, it is recognised that there would be major difficulties in organising these appeal hearings due to the very short time scale in which they must be heard i.e. by the 15th school day after the appeal is lodged.

12.17 Nevertheless, there is a very strong case for SENDIST to hear all PE appeals where a disability discrimination claim is made as part of the grounds for appeal, as there would be a consistent approach when considering these claims, which deals with a very difficult area of the law. Also, SEAPs do not always have legally qualified chairpersons whereas SENDIST does; in addition, SEAPs do not always have a legally qualified clerk although they have normally received training in the law on exclusions but not necessarily disability discrimination in education.

12.18 It should also be noted that School Admission Appeal Panels also hear disability discrimination claims regarding school admissions. Therefore, SENDIST should also hear admission appeals where a claim of disability discrimination has been made for the same reasons set out in the previous paragraph particularly regarding the legal qualifications and training.

12.19 However, if it is accepted that SENDIST deals with both admission and PE appeals where a disability discrimination claim is made, it should be noted that sometimes when admission and exclusion appeals are lodged it is not always clear that the parent is making a disability discrimination claim or that such issues should be considered and therefore, in these more unusual circumstances, it should be possible to adjourn the appeal so that it can be heard quickly by SENDIST.

12.20 Therefore, to achieve a seamless transfer between both the admission and exclusion appeals and SENDIST, they would need to form part of the same appeal service.

12.21 SENDIST also already deals with disability discrimination claims regarding fee-paying Independent schools. Therefore, this strengthens the argument that appeals concerning academies (and Trust schools), which although independent of LA control are not as truly independent as fee-paying schools, should also be heard by the same independent body as all the LA, VA and F schools. Furthermore, it would redress the current situation whereby pupils at academies (and possibly Trust schools) do not have the same direct legal entitlements as the pupils in maintained schools.

13 The Basis for EDAT

13.1 It is recognised that Academies, Voluntary-Aided, Foundation schools and LAs are likely to oppose some or all of these recommendations. However, it is generally recognised by those actually involved in the school admission and permanent exclusion appeals in LAs that the process is not truly independent.

13.2 The School Standards and Framework Act (SSFA)1998 altered the composition of what was then known as School Appeal Committees, which had formed part of LA committees, by disqualifying county councillors from sitting on the new School Admission and School Exclusion Appeal Panels in LAs (and governors of the relevant VA and F schools). Therefore, there is no justifiable argument why these appeals should remain in the control of LAs (or VA and F schools), as the connection with the LA (and VA/F schools) is historic by virtue of the SSFA 1998.

13.3 Furthermore, a precedent was set when appeals regarding special educational needs were taken out of LA control in 1994 and the Special Educational Needs Tribunal (SENT), the forerunner to SENDIST, was established. Therefore, as such a transfer has already been successfully achieved, SENDIST provides the relevant basis for the formation of a more comprehensive tribunal, which would encompass all aspects of the current statutory school appeals.

14 Conclusion

14.1 The examples provided in paragraphs 2.1 – 11.3 clearly demonstrate a lack of true independence in the current operation of the school admission and exclusion appeal panels.

14.2 The Audit Commission's recommendation (paragraph 12.5) that there should be a duty on councils to ensure that all admission authorities' admissions and appeals procedures conform to common and consistent practices recognises the need for a more uniform and cohesive service. This view is reflected in Recommendations 1 and 15 of the CoT report regarding Admission Appeal Panels.

14.3 It is understood that CoT is currently exploring the possibility that legislation be amended so that all the Voluntary Aided and Foundation School appeals are managed and heard by Local Authority appeal panels. Therefore, if Recommendation 1 of this report is taken forward it would be the initial step towards the creation of an EDAT.

14.4 If Recommendation 4 of this report is adopted and EDAT was formed it would:

1. Establish true independence for school admission and exclusion appeal panels;
2. Enable all appeals procedures to conform to a common and consistent practice thereby achieving a uniform and cohesive service for the end users;
3. Ensure that all educational disability discrimination claims were heard by the same body which would have appropriately trained and qualified tribunal members;
4. Facilitate a seamless and swift transfer of cases between the Admission or Exclusion arms of the Tribunal and SENDIST when necessary; and
5. Ensure that all pupils who attend non fee-paying schools are afforded the same direct legal entitlements regarding these issues.

Therefore, it is hoped that serious consideration will be given to the case for an Education Appeals Tribunal to be established in the Tribunals Service.

Sheila Sturgeon
3 March 2006