Choosing a school: a guide for parents, revised November 2016

Section 3: How to appeal

Appeal committees

If you wish to challenge the council's refusal of your placing request, you may appeal against it. In that case, your council must set up an appeal committee to consider your request for a place in a school.

Each appeal committee is made up of no more than seven people. They may be councillors or local people such as teachers and parents. Nobody who has considered your request before can be a member of the appeal committee. Nobody can be a member if he or she is a parent of a pupil at the school of your choice, or the school the council has suggested, or if he or she is a teacher at either school.

The appeal committee must say:

• whether it agrees that there is a good reason for refusing your choice of school (one of the reasons allowed by the law); AND
• whether the council is right to refuse your request.

If they do not think one of the reasons applies, or think that even if it does your child should get a place in the school you want, the committee must tell the council to give your child a place at that school, and the council must do so.

Deciding whether to appeal

You may be very disappointed that your child cannot go to the school you want, but there is not much point in appealing simply because you are disappointed. You must have a good reason for asking the appeal committee to look at your request again. Before you decide to appeal, you should consider:

• whether you agree with what the council has said;
• whether what the council has said is allowable; and
• whether the council's guidelines have been followed.

How often can parents appeal?

As a general rule, you can only appeal once each year for each of your children. So if you have a second choice of school in mind, decide whether to appeal when your first choice is turned down, or whether you have a better chance of getting a place in your second choice of school. You may feel that it would be better to ask for your second choice of school.

Exceptionally, you may make a second appeal if a decision of an appeal committee or of the Sheriff in another identical case is inconsistent with the decision to refuse your child a place. In these circumstances, the council must review the decision on your child and must tell you in writing the outcome of that review. If the council decides not to reverse the decision concerning your child, you may appeal whether or not you appealed against the original decision.

Can any refusal be appealed?

You cannot appeal against a refusal of a place in a nursery school (Unless your child has additional support needs)

If the council has said they cannot give your child a place in a particular nursery school, their decision is final. This is also the case if you have asked for a place in a primary school for your child and they are under school age (see Section 1 for information on under school age entry).

If your child has additional support needs, you can appeal against the refusal of a place in a nursery school. See  http://www.scotland.gov.uk/Publications/2011/04/04090720/12 for information on where to find further advice. Where a child or young person has a co-ordinated support plan, appeals regarding placing requests will be referred to the Additional Support Needs Tribunals rather than to an education authority appeal committee. Where an appeal on a refused placing request has been made to the appeal committee or the Sheriff it may be referred to a tribunal when:

• a child or young person has a co-ordinated support plan; or
• it has been established that the child or young person requires a co-ordinated support plan but one has not been prepared; or
• the education authority have decided that the child or young person does not require a co-ordinated support plan and that decision has been referred to a tribunal.

When to appeal

If you want to appeal against a decision not to allow you the school of your choice, you must inform the appeal committee no later than 28 days from the date on which:

• your request is treated as if the council had turned it down; or
• you receive the council's letter of refusal (if the letter is received before the date on which your request would be treated as turned down).

It is important that you decide quickly whether you want to appeal or not. If you do not tell the appeal committee within the time allowed by the law, you may lose your chance to appeal.

How to appeal

The letter from the council will explain your right to appeal and where to write if you decide to do so.

Your letter should include:

• your name and address;
• the name of your child;
• the name of the school of your choice;
• the date of the council's letter of refusal; and
• a statement that you wish to refer the council's decision to the appeal committee.

There is no need to say why the council refused your request, unless you want to, because the council will tell the appeal committee this.

Deciding how to make your case

The appeal committee will arrange a day, time, and place at which they will consider your appeal. This is called a hearing. Before the hearing takes place, you have to decide how you want to tell them about your reasons for appealing.

• You can go to the hearing and speak to the appeal committee yourself.
• You can take up to 3 people with you and if you wish, you can ask one of those people to speak for you, instead of speaking yourself.
• If you cannot go yourself, you can ask somebody else to go in your place and speak for you.
• You can put your arguments in writing beforehand.
• You can put your arguments in writing even if you also want to go and speak, or ask someone else to speak for you.

It is not essential that you do any of these things. If the appeal committee does not get written arguments from you, and if no one goes to the hearing for you, the committee will consider the information given to them by the council and reach their decision.

Making your case in writing

When deciding whether to put your arguments in writing, it is important to think about whether there is anything you want to say that you have not told the council before. If there is, it is best to write it down for the committee and send a copy to the council. If you say something to the committee that the council has not heard before, they would have to give the council time to think about the new information. This might delay the committee's decision.

It is best to start thinking about whether you should put your arguments in writing as soon as you have told the appeal committee that you want to refer the council's decision to them. This is because you must send any written arguments to the appeal committee and to the council at least 10 days before the hearing. So do not wait until you know the date of the hearing before thinking about this.

Any written information the council gives to the committee must also be copied to you at least 10 days before the hearing.

DO NOT FORGET

• to copy to the council any letter or other paper you send to the appeal committee before the hearing; AND
• to do this at least 10 days before the hearing.

The council can complain to the committee if they do not get their copy or get it late, and this could delay the committee's decision.

Arranging the hearing

You should get an acknowledgement of your appeal within about a week of sending your letter. It may take up to 2 weeks for the committee to inform you of the date, time, and place of the hearing. The hearing itself should take place about 2 weeks after that.

You may be asked to agree to a hearing at less than 2 weeks' notice in order to fit in with the committee's arrangements for other hearings. You do not have to agree if you want a full 2 weeks to get ready.

If you want to go to the hearing yourself but the date is not convenient, you can ask the committee to fix another date. They do not, however, have to do so if the date fixed is convenient for other parents or for other committee members themselves. If the hearing has to be held on a date when you cannot go, then you may want to ask someone else to speak for you.

Hearing several appeals at once

A number of requests for places in a school may be refused for the same reason. If all these parents appeal, the appeal committee may want to hear them all together.

This may affect your hearing in 2 ways:

• Normally your hearing must be held within 28 days after the committee receives your letter of appeal. If they want to hear your appeal with other parents, it may be longer than 28 days.
• If some parents appeal after the date of your hearing has been set, the committee may postpone your hearing and fix a later date to hear all the appeals together.

If the committee hears several appeals together, you have a right to ask the committee to let you speak to them without the other parents and their friends being there.

The Chair of the appeal committee will ask you whether you want a chance to do this. If you do, he or she will ask the other parents to leave the room while you speak.

What happens at the hearing?

When the hearing starts, the Chair of the appeal committee will say how the committee intends to conduct the proceedings. Normally:

• The person speaking for the council will say why they refused your request. Other people may be asked to speak, in support of what the council has said.
• You, or the person you have asked to speak for you, can ask them questions.
• You, or the person speaking for you, can tell the appeal committee why you think your child should get a place in the school you want, and why you think the council should not have refused this. You can also ask people to speak in support of what you say. If you have written down your reasons, and sent them to the appeal committee and the council beforehand, you can say, if you want, that you have nothing to add to your letter.
• The person speaking for the council may ask questions of you, and any of your witnesses.
• The person speaking for the council will sum up their reasons.
• You, or the person speaking for you, may sum up your reasons.

If you want to give the committee any paper at the hearing, the Chair can say that the person speaking for the council should see it too, and be able to copy it. If the council gives the committee any new paper, you can ask to see it too.

If the council says anything to the committee at the hearing which you did not know about before and which you think is so important that you want time to think about it before you go on with your appeal, you can ask the committee to adjourn the hearing and fix a later date for carrying on with the rest of the proceedings.

The committee does not, however, have to agree to this if it thinks the new information is not important.

The council can also ask the committee to adjourn the hearing and fix a later date for resuming it if you say anything new which they did not know about before. To avoid delay, it is best to make sure that the council knows all your reasons at least 10 days before the hearing.

Apart from the people speaking for you and for the council, only a limited number of people may be at a hearing. These may, for example, be councillors, or their officials in charge of schools, or people appointed to see that appeal committees operate fairly. Members of the public cannot go.

How long will a decision take?

This depends upon whether the appeal committee decides that it will have to adjourn the hearing and carry on with it later because some new and important information has been produced or because the committee want you or the council to give it more information. The committee must give its decision within 14 days of the end of the hearing. It must give its decision in writing to you and the council, and must give their reasons for it. If the committee agrees with the council, it must tell you about your right of appeal to the Sheriff.

If the committee disagree with the council and says that they should not have refused your request, the council must let your child have a place in the school you asked for.

What happens if the committee does not give a decision or does not arrange a hearing?

If the appeal committee:

• does not hold a hearing within 2 months of receiving your letter saying you want to appeal;
• does not fix a date for the hearing to continue within 14 days of adjourning a hearing; OR
• does not give their decision and their reasons for it within 14 days of ending a hearing,

the council's decision to refuse your request remains in force, but you can appeal to the Sheriff in the same way as if the appeal committee had agreed with the council's refusal.

Appeal to the Sheriff

The appeal committee may tell you that it agrees that the council was right to refuse your child a place in the school you want. If you still feel very strongly that the council should have given your child a place, you can appeal to the Sheriff against the appeal committee's decision.

If you want to appeal, you must lodge a summary application with the Sheriff Clerk. For cases covered by the previous section headed 'What happens if the committee does not give a decision or does not arrange a hearing?', the application must be lodged within 28 days of the relevant deadline as set out in that section. If the deadlines in that section are complied with, the application must be lodged within 28 days of receiving the appeal committee's decision. A summary application must be in the prescribed form of an initial writ for which a court fee would be payable. Normal court procedures would be observed. You may particularly at this stage, but possibly also at any other stage in the process of making and following through a placing request - consider it desirable to seek legal advice on how the law affects your particular circumstances. A late appeal may be accepted if good reason is shown. The Sheriff Clerk's address and telephone number normally appear in the telephone directory under 'Sheriff Court'.

An appeal to the Sheriff will be dealt with in private. The Sheriff will decide first whether the council refused your request for a reason that is allowed by the law. If not, he/she will overturn the council's original decision and your child must be admitted to the school you asked for. However, even where he/she decides that the council had good reason, the Sheriff will consider whether your request should still be accepted. The Sheriff's judgement may, in certain circumstances, be open to judicial review at the request of either the parents or the council. If relevant, you may wish to seek legal advice to find out more about this.

ANNEX

You may want to know exactly what the law says about the circumstances in which an authority can refuse a placing request. This is in section 28A(3) of the Education (Scotland) Act 1980, as inserted by section 1 of the Education (Scotland) Act 1981, and section 28A(3A) to (3E) of the 1980 Act, as inserted by section 33 of the Education (Scotland) Act 1996, as inserted by section 44 of the Standards in Scotland's Schools etc Act 2000. The circumstances set out in section 28A(3) are:

" (a) if placing the child in the specified school would:

i) make it necessary for the authority to take an additional teacher into employment;
ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school;
iii) be seriously detrimental to the continuity of the child's education;
iv) be likely to be seriously detrimental to order and discipline in the school; or
v) be likely to be seriously detrimental to the educational well being of pupils attending the school; or
vi) assuming that pupil numbers remain constant, make it necessary at the commencement of a future stage of the child's primary education, for the authority to elect to create an additional class (or an additional composite class) in the specified school or take an additional teacher into employment at the school;
vii) though neither of the tests set out in sub-paragraphs (i) and (ii) above is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers.

(b) if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child;

(c) if the education authority have already required the child to discontinue his attendance at the specified school;

(d) if, where the specified school is a special school, the child does not have additional support needs requiring the education or special facilities normally provided at that school; or

(e) if the specified school is a single sex school (within the meaning given to that expression by Schedule 11 (Part 1) of the Equality Act 2010 and the child is not of the sex admitted or taken (under that section) to be admitted to the school."

Section 28A(3) goes on, however, to say that:

"an education authority may place a child in the specified school notwithstanding paragraphs (a) to (e) above,"

This means that the council does not have to refuse a request just because one of the reasons set out in the law applies.

Section 28A(3A) to (3D) is worded as follows:

"(3A) The duty imposed by subsection (1) above does not apply where the acceptance of a placing request in respect of a child who is resident outwith the catchment area of the specified school would prevent the education authority from retaining reserved places at the specified school or in relation to any particular stage of education at the school; but nothing in this subsection shall prevent an education authority from placing a child in the specified school."

(Subsection 3(8) was removed by section 44 of the Standards in Scotland's Schools etc. Act 2000.)

"(3C) In subsection (3A) above, 'reserved places' means such number of places (not exceeding such number or, as the case may be, such percentage of places at the school or relating to the particular stage of education as may be prescribed by regulations) as are in the opinion of the education authority reasonably required to accommodate pupils likely to become resident in the catchment area of the school in the period from the time of consideration of the placing request up to and during the year from 1 August to which the placing request relates; and different numbers or, as the case may be, percentages may be prescribed under this subsection for the purpose of different cases or circumstances.

"(3D) In subsections (3A) and (3C) above, 'catchment area' means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of this Act."