The issues and our proposals
The research and reports set out above have identified a number of issues with the current Education Appeal Committee system. We have set out below what we believe the key issues are, together with any proposals we have, and questions seeking your views. We welcome your views on these issues, on our proposals, and any other comments you believe are relevant to improving EACs. All quotes in italics are from parents interviewed as part of the Executive funded research on the experience of parents who had appeals heard by EACs.
Information and advice for those appealing
There is no standardisation across the country on what information and advice appellants receive, with approaches varying from authority to authority. Whilst information on procedures, and introductions to those at the hearing, are usually given at the start of a hearing, appellants are often too overwhelmed to remember them. The research recommended that there was a need for better information, in advance of the EAC panel hearing, about what would happen at the hearing itself. It also recommended that there should be clearer and more accessible sources of advice and support, to give those appealing general advice on how the process will work, what sort of evidence an EAC might be interested in, and how to present a case.
"I felt it could have been given in a leaflet form beforehand, or sent to us, saying this is what happens and this is the way things are conducted, instead of that day."
Unsuccessful exclusion appeal
Our proposal: that the Executive produces basic information for appellants, which local authorities could then supplement. This basic information could be provided as a leaflet sent to local authorities for them to distribute, and also published on the Executive's website.
Question 1: Do you agree that a leaflet, with basic information for parents on the following topics, should be produced?
- how an appeal hearing is conducted;
- who will attend a hearing, and their roles;
- rules on submitting evidence;
- possible sources of help and advice for appellants.
Are there any other topics that should also be included in the leaflet?
Question 2: Who should produce such an information leaflet? The Scottish Executive, local authorities, or some other body (please specify)?
Question 3: Rather than producing an information leaflet, should the Scottish Executive set out what information local authorities should provide to those appealing?
Question 4: Do you think that any additional sources of advice and support for appellants should be provided? If so, what sort of advice and support should be provided, and by whom?
Procedures before a hearing
There are a number of areas of concern in relation to procedures surrounding EACs, highlighted by the research with parents. The main ones are:
- timetabling. Some appeals are heard on a first come first served basis, with those arriving later being given less time to have their appeal heard than those who arrive earlier;
- venues. It is important that the hearing is held in a venue that is neutral and easily accessible.
- dates and times of hearings. Sometimes hearings are held at times and dates that do not suit appellants.
- arrangements not being made for people who might not speak English, or would prefer letters to be in a language other than English.
Our proposal: we propose to address the issues above by producing guidance for local authorities, in consultation with relevant groups such as CoSLA. There is more detail on the guidance at pages 8 and 9.
The research with parents recommended the use of pre-hearing meetings, with an independent person working to bring about an equitable solution. The Committee also recommended that authorities hold pre-hearing meetings, to ensure that everyone is fully informed. We believe that authorities who want to introduce such an approach should be allowed to do so. However, we think it is very important that such meetings have a clear purpose, and are not seen as an additional 'hurdle' to be cleared by appellants before the EAC hearing.
Question 5: Do you support the use of pre-hearing meetings? If so, what should the purpose of such meetings be, and how should they work?
Procedures at a hearing
The conduct and atmosphere at Education Appeal Committee hearings were two of the main areas for improvement that came out of the research with appellants.
Appellants found the atmosphere at appeal hearings was overly formal and intimidating, and this often added to the stress they felt in the hearing. All of those who participated in the research commented that less confident individuals might have been put off going to an appeal by the formal atmosphere.
Those who took part in the research generally saw hearings as being one sided, with few feeling that they had been on an equal footing with the authority. Authorities often use solicitors to represent their case to the EAC panel, and this can add to the formality and legalistic feel of a hearing.
Seating arrangements, together with the choice of venue, can also make the appellant feel that they are being examined by a panel, rather than presenting their case to an impartial body which will then make a decision.
"They were a way up at the other end of a room and there were so many of them … It was quite overwhelming … I just thought there would be a little table and I was sitting one side of it and they were sitting the other side … It felt almost like a court room, I felt."
Successful placing request appeal
Our proposal: we propose to address issues surrounding the procedures around, and at, Education Appeal Committees by producing guidance, in consultation with relevant groups such as CoSLA, covering:
- informality of the hearing, and avoiding a quasi judicial approach
- holding appeals at times that suit appellants
- specific time slots for appeals
- use of suitable venues
- use of nameplates
- numbers and types of representation
- communication before and after an appeal
- room layout
- seating arrangements
- arrangements for those with particular needs, e.g. for whom English is an additional language
- number and type of panel members (see pages 11 to 12 below)
Question 6: Do you agree with our proposal to issue guidance for local authorities on arrangements surrounding Education Appeal Committees? Do you agree with the proposed areas for the guidance to cover (above)? Are there any other topics that you think should be included in the guidance?
Question 7: Is there anything in particular that authorities should put in place to ensure that all those who appeal to EACs have a fair hearing? For example, what provision should the guidance recommend in relation to sign language, interpretation, etc.?
Representation at a hearing
An EAC panel has to allow the person appealing the opportunity to make oral representations to the EAC panel but the person does not have to make oral representations if they have lodged written representations. Up to three people, including a person speaking for the appellant (if any), can accompany an appellant at the hearing. In addition witnesses may be called into the room to answer questions by the parties. Many appellants are not represented by someone else.
Authorities are often represented at an EAC panel hearing by a solicitor who works for the authority. The research found that most parents interviewed did not know in advance that a solicitor might represent the authority, and therefore felt at a disadvantage.
Our proposal: whilst we recognise that this is a difficult area we propose to encourage authorities in guidance to avoid using solicitors except where the appellant uses a solicitor, and instead use education authority officials or relevant headteachers. We believe this will help to make EAC hearings as informal as appropriate.
Question 8: Do you agree with tackling the issue of representation through guidance? Do you have any ideas or suggestions on ways of making sure that both sides are fairly represented?
The law currently permits Education Appeal Committees to hold combined hearings (i.e. hearing more than one case together). However, it can only hold combined hearings for more than two cases in certain circumstances, which are:
- if the appeals relate to placing requests, all the decisions being appealed relate to the same stage of education at the same school (e.g. for S1 intake), and in the EAC panel's opinion have been refused for substantially the same reasons. If the appeals relate to children with additional support needs the panel may combine the hearings if the appellant agrees;
- if the appeals relate to exclusions, all the decisions being appealed must relate to the same pupil, the same school, the appeals must have been made at the same time, and in the EAC panel's opinion have been refused for substantially the same reasons. If the appeals relate to children with additional support needs the panel may only combine the hearings if the appellant agrees.
Appellants have the right to ask the EAC panel for the opportunity to speak to them without other people who are appealing being present. However they do not have the right to stop an EAC panel from considering their case as part of a combined hearing. The research with parents recommended that appeals should always be heard individually, with no combined hearings.
Our proposals: We propose to discourage authorities from holding combined hearings in guidance, and make clear that combined hearings should only be held when there are compelling reasons for doing so.
Question 9: Do you agree with our proposal to discourage local authorities from holding combined Education Appeal Committee hearings?
Question 10: Do you think Education Appeal Committees should continue to be able to hold combined hearings (e.g. hearing two or more appeals at the same time)?
EAC panel members are drawn from a pool of volunteers. Authorities have different ways of selecting volunteers, such as drawing them from School Board members. EAC panels must have:
(a) members of the local authority (i.e. councillors), or of any committee which the authority has appointed and which advise the authority on matters relating to education (which could include religious representatives and other members of such a committee);
(b) and other people drawn from the following groups:
- parents with children of school age;
- people with experience in education (such as retired teachers);
- people who know about the educational conditions in the authority area.
Those in group (a) above cannot outnumber by more than one those in group (b) on an EAC panel. The chair of an EAC panel cannot be a member of any committee which the authority has appointed, and which advises the authority on matters relating to education.
Teachers, pupils, parents of pupils, and school board members at any of the schools concerned in the appeal (e.g. the school a child wishes to attend, or from where the child has been excluded) cannot sit on the EAC panel considering the appeal.
The EAC panel must not include anyone who was involved in making the decision being appealed or was present at discussions about whether the decision should be made.
One of the problems with the system is that appellants do not view EAC panels as being impartial because they are seen as being connected to the local authority.
"I think it was a foregone conclusion, and I don't think it was necessary for us to go to the appeal because I don't feel there was going to be any difference …."
Unsuccessful placing request appeal
Our proposals: To address the possible perception of bias we propose to recommend in the guidance that:
- an EAC panel does not include a majority of persons from group (a) (e.g. councillors and members of any committee which the authority has appointed and which advises the authority on matters relating to education), with the possibility of changing the law later to make this compulsory;
- a councillor does not chair an EAC panel.
Question 11: Do you agree with our proposals to recommend that EAC panels do not include a majority of councillors or people who advise the authority on education matters? Do you have any suggestions on how authorities can widen their pool of potential volunteers?
Question 12: Should the rules on who can sit on an EAC panel be changed? If so, who should be allowed to sit on an EAC panel?
Training of panel members
There is no requirement in the law that EAC panel members are trained. Some authorities do provide training, and a smaller number insist that people have completed this training before they can hear an appeal. The Scottish Committee of the Council on Tribunals has consistently raised this as one of the main problems with Education Appeal Committees, and commended those authorities who have introduced training. In their Annual Report 2004-05, the Committee stated that:
"Whilst all panels comprised committed individuals, there are still instances where the presented evidence is not weighed up, no facts are probed and where hearts are allowed to rule heads. At the end we are talking about the fairness, both actual and perceived, of administrative justice and the future of a child's development."
This lack of training may explain why those appealing, whilst generally feeling that they were treated fairly, sometimes gained the impression that panels were "going through the motions".
"I feel that before we went in there, it was them against us. They had made up their mind what was happening, and it wouldn't have mattered a blind bit … I felt it was a complete waste of time because I don't think it would have mattered what we said. That was the way it was."
Unsuccessful placing request appeal
"… I think I was given a very fair hearing, and the councillors were most interested … I think actually … was the Headteacher of the school there? I can't remember now. But I think that the councillors listened. They were quite interested and fair in listening to me."
Unsuccessful placing request appeal
"This woman [a panel member] came across so [biased] it was unreal. I thought why was she here because she had judged him before he had even spoken."
Unsuccessful exclusion appeal
Our proposals: We recognise the public spirited commitment that those who sit on EAC panels have made. We believe that good training can help develop their skills in weighing up evidence, questioning with accuracy and consideration, and having a structured decision making process. We therefore propose to fund the production of national training materials for EAC members, to be delivered and supplemented by local authorities. These materials would provide for a full day of training, and would include materials on areas such as:
- effective questioning
- weighing up evidence impartially
- being seen to be impartial
- reaching a structured and reasoned decision
- diversity awareness
- the law relating to placing requests and Education Appeal Committees
- Human Rights
An additional module for Chairs would help them ensure appeals were conducted in a fair and impartial way. We envisage this would be delivered through a half day in addition to the training for all panel members.
We would recommend in the guidance to authorities that all panel members had completed this training before they were allowed to sit on an EAC panel and hear an appeal.
Question 13: Do you agree with our proposal to produce training material for authorities to deliver? Do you agree that such training should cover the topics above? Do you think the training should cover any other topics?
Question 14: Do you agree that all panel members should complete training before they sit on an EAC panel? Should this requirement be put in Scottish Executive guidance (which would not be binding on authorities) or in legislation? Please let us know the reasons for your view.
The law says that an Education Appeal Committee should hear an appeal within 28 days of someone registering an appeal with them. If the EAC fail to hold a hearing for an exclusion appeal within 1 month, or a placing request appeal within 2 months, the panel is deemed to have refused the appeal and the appellant can appeal to the Sheriff Court. The hearing can be adjourned but there are further time limits to be observed by the panel so that the matter does not become protracted. The research with parents suggested that there was little concern with the current timescales, but some appellants did comment that anything that could be done to shorten the process would be welcome.
Question 15: Do you have any comments on the current timescales for hearing appeals? If you think they should change, what other timescale would be appropriate and realistic?