Transfer of the functions of education appeal committees to the Scottish Tribunals – Consultation
Response from East Dunbartonshire Council
1. Do you agree that appeal committees should transfer to the Scottish Tribunals? And is so, why?
East Dunbartonshire Council does not agree that appeal committees should transfer to the Scottish Tribunals.
The response largely address issues relating to placing request appeals, though some of the points will also apply to exclusion appeals.
It should be noted that placing request appeals are determined by the application of a statutory test, namely, whether there are statutory grounds for refusing a placing request and whether it is appropriate to do so in all the circumstances. As detailed below, there is little evidence that the statutory test is not being applied by Education Authorities.
It is noted that the 2004 research referred to highlights concerns from parents, including concerns about lack of impartiality, an imbalance of power between local authority and parents, and concerns relating to standards of training. It is also noted that there is a view that the appeal process can be stressful and upsetting.
The Council’s response shall deal with these points and other points raised by the consultation paper in turn:
Parents’ Concerns
It is perhaps understandable that parents who have been unsuccessful have raised concerns around the operation of placing request appeals, and it is important that this context is not lost. It is also important that perceptions are not given precedence over facts and evidence. Impartial evidence would suggest that almost without exception, internal placing request appeals committees are applying the relevant law in a fair and consistent manner.
Perceived lack of impartiality
It is very serious to imply that there is a lack of impartiality, or even a perception of it. There are many quasi-judicial committees/boards/bodies operated by Councils and any inference of partiality is not accepted. Moreover, the Education Appeal Committees’ membership include people who are not Councillors and they are convened by an independent chair, so it is hard to understand what the perceived partiality would be.
It should be noted that experience confirms that few appeals made to the Sheriff Court reach a different outcome of to that of an Education Appeal Committee. For East Dunbartonshire Council, there have been ten appeals made to the Sheriff Court in the last five years. In only two appeals was the decision of the Sheriff different from that of the Education Appeal Committee. In these cases the Sheriff accepted that statutory grounds for refusing the request had been made out, but had determined notwithstanding, that it was appropriate to allow the appeal in all the circumstances.
When determining an appeal, a Sheriff is not simply reviewing a decision of an Education Appeal Committee i.e. determining whether a decision was reasonable etc. Rather, the Sheriff is applying the same statutory test of whether grounds exist for refusing an appeal and whether it is appropriate to do so in the circumstances. If there are not a large number of decisions being overturned then it cannot follow that the law is being applied incorrectly or not impartially by Education Appeal Committees. Perhaps more can be done to address this apparent negative perception rather than transferring the function.
The proposals comment that a transfer to Tribunals will help with consistency of decisions. Again, given that it appears that decisions by Sheriffs rarely overturn the decision of Education Appeal Committees, it is not understood why this is an issue. There is nothing to suggest that Education Appeal Committees are misapplying the statutory grounds on whether a placing request appeal can be refused. The secondary part of the test, whether it is appropriate in all the circumstances, gives a wide discretion to the decision maker and this will remain no matter in which forum the appeals take place. It is the assertion of East Dunbartonshire Council that this discretion should rightly be applied by local panels that are well versed in the specific admission policies in order to ensure consistency. There is a greater risk to consistency where decisions in relation to a specific school are made by numerous/different appeals panels that cannot possibly be as familiar with the application of the relevant admissions policy and may not treat similar circumstances consistently. East Dunbartonshire Council has a very small cohort of panel members (Councillors and Independents) considering its placing request appeals each year who have appropriate experience and training. This also ensures that any new panel members quickly develop skills and experience. More importantly it ensures a consistent approach, which is underpinned by administrative arrangements which ensure that all of the appeals from a school are heard by the same appeals panel.
Further, as a successful education authority (in terms of attainment and positive destinations for school leavers), East Dunbartonshire Council deals with a high number of Placing Request Appeals every year. Accordingly, these are not decisions made by the Education Appeal Committees on an infrequent basis. For all of the reasons outlined above, it is not accepted that inconsistency is an issue that requires to be addressed. On the contrary, the current consistency in decision making will be undermined by the proposals.
Imbalance of power/reflection of locality
It is not explained how this would be different in a Tribunal setting. While Tribunals have equality of arms as an objective, it will remain that Local Authorities will have access to legal advice and representation, and that not all parents/guardians will have similar access. Moreover, currently in East Dunbartonshire, solicitors do not attend the Education Appeal Committee to argue on behalf of the Education Authority as a matter of course. Should appeals be transferred to the more formal and more legalistic setting of a Tribunal then it is almost certain that solicitors will present all cases for the Education Authority, thereby increasing the perceived imbalance.
The perception of imbalance may come from the fact that the presentation from Education officers will often include an explanation on the Admission Policy. It is likely that an Education Appeal Committee will give weight to advice from an Education officer on the Admission Policy. However, this should not change in a Tribunal setting either. In this Council’s experience, a Sheriff will give weight to the evidence of an Education officer regarding how an Admission Policy operates.
It should be noted that it would be a complete misuse of the appeals process to undermine the Admission Policy or any other policy of the Education Authority. Tied to this is the local knowledge of members of Education Appeals Committee. This will cover the policies of the Education Authority as well as specific pressures facing schools, for example, which schools receive a high number of requests every year as well as the financial pressures of the Education Authority. The proposal states that memberships of the Tribunal will be drawn for local communities. However, this is unlikely to be the same as those currently on Committees who have specific local knowledge of education in the area.
Accessibility
Since 2020, Placing Request Appeals in East Dunbartonshire have been conducted online, in order to make them more accessible for parents/guardians. While the hearings are quasi-judicial so there must be an element of formality, the Council does its best to ensure that proceedings are as relaxed as possible. As stated, legal advisers do not attend the hearing so as not to make proceedings needlessly formal. It is not accepted that a transfer to the Tribunal will make proceedings less formal and more accessible, rather it would make proceedings considerably more formal and less accessible, and would disproportionately disadvantage those parents/guardians unable to afford legal representation. The Council continues to look at ways to make the process more accessible (e.g. the use of grouped appeals etc.) and would welcome any views on making the process more comfortable for parents/guardians.
Capacity to meet demand
For the academic year 2022/23, East Dunbartonshire Council has received 908 placing request so far. 67 of these requests were either cancelled or declined when a suitable placing was offered. 498 were granted by the Education Authority with 77 proceeding to the Education Appeals Committee.
For the academic year 2021/2022, 919 placing requests were received with 444 granted by the Education Authority. 177 were appealed to the Education Appeals Committee.
As shown above, East Dunbartonshire Council processes a high number of appeals every year. These all need to be processed very quickly to have the least impact on a child’s academic year and to provide certainty so that parents/guardians can make appropriate plans. The Council is not confident that a Tribunal would be able to process these as quickly as the Council. While the Tribunal can be a less formal and quicker forum than Court, the Council’s experience is that Tribunals take longer to determine matters than the current process. Often there will be weeks if not months in which to submit appeals and responses etc. Moreover, there will often be procedural hearings before a final hearing. The Council is able to process the appeals efficiently by holding hearings for the same schools on the same day where the Education authority present the school information in the presence of all parents/guardians who have submitted an appeal in respect of that school. This has the dual benefit of the Education officer only having to provide that information/evidence on one occasion and the parents/guardians having the benefit of the answers to questions asked by other parents/guardians or members of the Education Committee.
The Council also anticipates that the transfer to the Tribunal will not free up Council resources, but instead will have the opposite impact. It is anticipated that the Council will still be required to produce the majority of the paperwork for the appeals. Moreover, as stated, moving into a more formal setting of the Tribunal will result in legal representation for all of the Council’s appeals at the Tribunal. The Education officer will require to present the Council’s information/evidence in relation to the Admissions policy and the school specific information on multiple occasions at multiple hearings.
Appealing against decisions
It is accepted that the formality and costs of the Sheriff Court may dissuade some people from appealing against a decision of an Education Authority. However – please see above re the limited number of incidences where the decision of an Education Authority is overturned by a Sheriff. While the Council does not agree that the whole function of appeals should transfer to Tribunals for the reasons (including costs) outlined above, it is accepted that there is case that an appeal following the decision of an Education Appeals Committee should transfer from the Sheriff Court to Tribunals, provided that any such appeal would be final without further appear to the Upper Tribunal (as is the case with an appeal to the Sheriff). Moreover, it should be noted that the Council's experience of the Sheriff Court is that the appeals heard by the Sheriff Court are dealt with efficiently and timeously. If the function is to transfer then it must be ensured that appeals are expedited in the same manner.
Impact on Local Authorities
It appears that the proposals place significance on research conducted almost 20 years ago. It is stated that the purpose of the 2004 research was to “conduct research with parents who have appealed to Education Appeal Committees.” While the research outlines responses from both those who are successful and unsuccessful, clearly a large portion of responses are from those who are disappointed with the outcome. This is not a sound basis for recommending a fundamental change to the system. While the proposal discusses issues such as perceived partiality (which is disputed), it seems likely that those unhappy with the system are so because they wish for more appeals to be granted. It is submitted that research should have been conducted against a wider pool to include parents not taking part in appeals and other interested parties to establish what the overall satisfaction with the placing system is. In addition, the Council is concerned that the proposals are based on research which is almost 20 years old and would contend that it is not a reliable picture of the current administration of placing request appeals.
This response outlines above the large volume of placing requests and appeals received by East Dunbartonshire Council. It should also be noted that a large percentage of the placing requests are granted by the Council as Education Authority. If low numbers are granted by the Education Appeals Committee, then this, together with the large portion of placing requests being granted, and the very low number of successful appeals to the Sheriff Court, is indicative of circumstances whereby the Education Authority is processing the requests correctly and in accordance with both its admission policies and the law.
As seen by the number of placing requests (given the relative size and population), the schools in East Dunbartonshire are in very high demand for parents/guardians wishing to send their children to the schools outwith the catchment area. An increase in the number of placing request appeals granted over and above the amount of placing requests currently granted, will have a significant impact on East Dunbartonshire Council. A small number of reserved spaces are kept in each school, where possible, to allow for families moving into catchment area during the school year. It is essential that the Council retains the ability to do this, otherwise schools will be at capacity and will not be able to accommodate catchment children when they move in throughout the year, thereby having a detrimental impact on those children in terms of settling into a new community and attending school with their peers and neighbours.
To have this outcome where no evidence has been presented to establish that decisions are not being made in line with the legislative requirements would be unacceptable. Currently, the size of schools and classrooms are mainly based on the anticipated amount of pupils living in catchment areas. This is a complex process which develops over time and is impacted by changing demographics and other factors such as planning and development control. Moreover, like all local authority finances, the amount of resources that can be contributed towards the building or extending of schools are limited. In any case, increasing the size or capacity of “popular schools” does not solve this problem as it increases the availability of “out of catchment” places, thereby exacerbating the challenges of accommodating children during the academic year and in following years.
For example, the amount of contributions which the Council is entitled to recover from developers towards education provision is determined by a combination of legislation, national policy and local policy. Section 75 of the Town and Country Planning (Scotland) Act 1997 allows the Council to enter into planning obligations which may require payment of a specified amount, an amount determined in accordance with the obligation or periodical sums. Councils routinely use s75 planning obligations to require financial contribution towards education infrastructure. Scottish Government Planning Circular 3/2012 sets out the national policy tests, which all planning obligations should meet, including that the obligation must relate to the proposed development either as a direct consequence of the development or arising from cumulative development in the area. Accordingly, there must be a link between the proposed development and the infrastructure for which the contribution is sought and the mitigation of any potential adverse impacts of the development that this additional infrastructure would provide i.e. it has to be based on the impact of the development on the locality (catchment area) and cannot take account of out of catchment and/or out of authority placing requests. In terms of the Council's own policy on education contributions, set out in the Council's Developer Contributions Supplementary Guidance, a financial contribution towards education facilities, calculated on a per-unit basis, is only required for developments in the catchment area of those schools where 90% capacity is already exceeded or is likely to be exceeded as a direct result of that development, either individually or cumulatively with other known developments. The 90% capacity figure is calculated taking school rolls and new development allocated within the Local Development Plan into account. To ensure the link between the development and the financial contribution, contributions must be spent on schools affected by the development, either by providing additional capacity at existing schools or on new build facilities.
Accordingly, the Council submits that it would be ill advised to transfer the function of Education Appeals Committees to the Scottish Tribunals and it would potentially have significant negative impacts on Education Authorities. As stated, there is no evidence that the statutory tests are not being applied correctly by Education Appeals Committees. To make a fundamental change to the system based on research, which has evidence of “perceptions”, and is almost 20 years old is not appropriate. If there is a perception that outcomes are not satisfactory then perhaps a review of the current legislation should take place prior to making a change to the procedure. However, this should also be accompanied by a wider review looking at all aspects of education provision including facilities, teacher numbers/ratios and population growth/movement amongst others.
2. Do you consider that appeal committees should remain with local authorities but with improvements to how they operate? And if so, what changes would you like to see?
The Council considers that appeal committees should remain with local authorities. Please see answer to question 1. In addition, the Council would welcome any suggestions to make the process of placing request appeals more comfortable for participants.
3. Do you consider that no changes should be made to how appeal committees operate? And if so, why?
The Council accepts that there could be room for improvement such as, as outlined above, considering the transfer of an appeal of a decision of a committee from the Sheriff Court to Scottish Tribunals. However, it does not agree that the whole function of appeal committees should transfer.