Transfer of the functions of Education Appeal Committees to the Scottish Tribunals: consultation analysis

4. Comments on Key Themes

In this section we set out the key themes that were identified in consultees’ responses to the consultation. As noted above we do not quantify the number of responses that referred to a particular theme.

4.1 Local Knowledge

Several responses noted the advantages of local decision making, local knowledge and flexibility of approach currently offered through the current system.

One local authority respondent commented:

“Local membership of Committees are best placed to have the necessary knowledge for mainstream placing requests, which will not generally benefit from the health and social work expertise of tribunal members.”

Organisations representing local authorities responded that appeals are better dealt with locally as appeal committees will have a better understanding of the community and that the Health and Education Chamber (HEC) may not be able to replicate that local knowledge and understanding.

A local authority response noted that:

“Experience has shown us that local knowledge is needed to be able to adapt to quickly changing situation regarding decisions at local level between schools”.

Local authority responses placed significant emphasis on knowledge of the local context, including demographic trends and their impact on demand for places. The importance of local knowledge was also echoed by some individual responses. For example, an individual respondent noted the importance of understanding the resource implications of appeal decisions and challenges local authorities may face.

“Local authorities are best placed to understand the context of their schools and there are many resource implications that are faced through placing requests. It is increasingly difficult to recruit to remote, rural and island schools and one additional child may increase staffing requirements which cannot be met. This puts an additional burden on teaching and support staff and is not in the best interests of all children.”

However, this view was challenged by the response which noted that the rights that are being tested by appeal committees are framed nationally and therefore knowledge of local context is of less relevance.

“The consultation document, at paragraphs 4.2 and 4.9, refers to a need ‘to ensure that members have a good understanding of the local delivery of education’. While there is value in local knowledge this is not essential. The rights of parents and pupils are framed on a national, not local basis. Consideration of local delivery is therefore usually not relevant and would only encourage differences in how rights are applied across the 32 education authority areas. Where local knowledge of how education operates is relevant (for example, the local structures in place) that can be provided in evidence from the relevant local education official, or by school staff. Where (as is usual) this is not controversial, it can be provided by witness statement, removing the need for oral evidence.”

Furthermore, HEC commented that:

“HEC judicial members are drawn from across Scotland, which provides for flexibility in local delivery. While this enriches the overall knowledge base, it is rarely necessary for a member to need local knowledge in a specific case. Members without direct local knowledge are impartial, they rely on the evidence presented and provide an objective perspective.”

This argues the case that members of the HEC chamber will be fully trained and ready to deal with the appeals that will be heard at an appeal committee if the transfer was to go ahead. Currently, there is no statutory requirement for appeal committee members to receive training.

4.2 Organisational Capacity

Some respondents to the consultation expressed concerns about whether the Scottish Tribunals will have the organisational capacity necessary to ensure that the appeals process is completed in a timely manner. Many respondents representing local authorities noted that the majority of placing request appeals occur in the summer term. They noted that it is crucial that parents receive the outcome of their appeal as soon as possible and certainly before the start of the new school year. Some respondents thought that the transfer could disrupt the operation of schools and make planning for schools more difficult.

The CoSLA/ADES response noted:

“There would be a much longer process to prepare and consider cases that are currently administered by appeal committees. We would therefore expect that the timescales for decision making would extend, potentially by a significant period. This stands against the streamlined system that local authorities have established through years of practice.”

A local authority response noted:

“By transferring all aspects of the process away from local decision-making it is likely to remove local accountability; prevent agility and flexibility which is needed between schools, parents and officers in order to make decisions quickly when circumstances change for young people. Moving appeals to Scottish Tribunals is likely to cause further delays in decision-making.”

4.3 Accessing Appeal Hearing Venues

Concerns were expressed about appeal hearing venues and the likelihood they would be mainly in the central belt and/or major towns and cities. This could result in increased costs to parents and time spent travelling for those based outside of the central belt. Some respondents expressed the fear that centralising the work of appeal committees will restrict access to justice as some parents may be put off from appealing, especially those on lower incomes, due to travel costs and time off work to travel to hearing venues.

A local authority noted:

“Both local authorities and parents are likely to face increased travel costs. This may be seen as a barrier to parents who currently only need to travel small distances to the appeal committees hearing.”

4.4 Resourcing the transfer

Respondents opposing the transfer had concerns about the potential costs that could arise following the transfer. Some noted that local authorities may choose to have legal representation at tribunal hearings, in some cases engaging external legal services, significantly increasing the legal costs associated with this process. Some argued that parents may also wish to engage legal advisers given the quasi-judicial character of the Scottish Tribunals system, and lead to increased costs for them also.

One LA respondent noted:

“The proposal suggests costs of between £500,000 to £700,000 per annum for a central tribunal service, with costs being met by central and local government – given the concerns previously made, these costings seem to be an underestimate. As the proposal has not been fully costed at this time it is difficult to comment further. As noted previously, almost all appeals are heard remotely within East Renfrewshire Council and so there is little cost associated with the process; where meetings have been held in person there is also little expense to all parties. Given the current economic challenges being faced in local government, it is concerning that a process which is efficient, working well and very low cost, will be replaced by one which will cost more and likely be more inefficient and inequitable.”

However, the HEC noted:

“It is worth noting that significant resources are already deployed in the administration of appeal committees; those resources would be saved across all 32 education authority areas.”

The HEC also explained that steps could be taken to ensure that the system is streamlined and efficient:

“The Chamber stands ready to maintain a speedy, judicial and professional decision-making jurisdiction by increasing the flexibility of its processes. This can be achieved by, for example, the use of documents only decisions (something the Chamber already does); legal member only decisions (again, done already); robust pre-hearing case management to reduce the volume of oral evidence (commonly practiced now) and expedited decision making (deciding a number of appeal committees cases in a day).”

4.5 Formality of Tribunals

Some respondents noted the transfer could make the process more formal than at present and potentially put people off from appealing. The procedural aspects may be more complicated and make the process more stressful for appellants as many parents may find attending an appeal held at a Tribunal centre intimidating.

Some organisations who responded who were in favour of the proposed transfer believed that appeal committees are not fit for purpose and that there is a lack of structure in the current set up. One respondent noted that:

“Concern regarding existing arrangements can be traced back to 2000 when the Scottish Committee of the Council on Tribunals prepared a special report on appeal committees. In their annual report of 2010/11, the Scottish Committee of the Administrative Justice & Tribunals Council included a section on education appeal committees. They repeated fundamental concerns that the appeal committees were not fit for purpose and their practices did not satisfy the requirements of impartiality, fairness or transparency.”

4.6 Impartiality of Tribunals

There was also a theme that there would be greater impartiality if the transfer was to go ahead as it was argued that parents would be able to access an impartial forum if appeal committees were to transfer to the Scottish Tribunals, as noted in one response from an advocacy group for children with additional support needs:

“Those who hold the budgets should not be adjudicating on the appeals, as this creates the potential for a conflict of interest.”

It was also argued that a centralised process under one body would mean greater consistency across all appeal hearings in relation to both practice and procedure. Many organisations, especially those from an Additional Support Needs (ASN) perspective also noted that ASN Tribunals are child friendly.

4.7 Improving Skill Levels of Appeal Committee Members

There were many responses to the consultation that indicated that the respondent would like to see improvements made to the current appeal committee system. The most prominent of which was the introduction of national guidance for local authorities to follow for conducting placing request appeal hearings and for panel members to receive annual training to ensure a consistent standard is displayed amongst all 32 local authorities.

Nineteen organisations representing local authority interests expressed interest in this idea. The Society of Local Authority Lawyers (SOLAR) noted that:

“It is difficult to see how the tribunal could replicate the local knowledge of 32 different authorities. If the status quo was maintained, the provision of centralised independent training to the local committee members on decision making processes could instead provide a helpful check and balance, while retaining the very valuable local knowledge.”

It was noted by many respondents that local councillors should not sit on appeal committees and appeal committee members should be drawn from wider society with some expertise in education. It was argued this could help reduce the tendency to prioritise concerns about educational budgets in decision making as this could create the potential for a conflict of interest.

The HEC commented on the ability to ensure that tribunal members have an appropriate understanding of the appeals process:

“A statutory requirement to train all HEC judicial members exists. That training falls under the responsibility of the Lord President. The Lord President monitors member training through the Judicial Institute for Scotland. The Judicial Institute delivers core training on Tribunal Craft and specialist training is delivered by the HEC Chamber President. A Lead Trainer has been appointed from the Tribunal membership who supports the HEC Chamber President in the delivery of these duties.”