The Scottish Government are consulting on repealing section 70 of the Education (Scotland) Act 1980, which gives anyone the right to complain to Scottish Ministers about an education body such as a school or council failing to meet a statutory obligation. This could be about anything to do with any legal right, including the rights in our section on the law. One of these rights is that children should be educated, within reason, in accordance with the wishes of their parents. So these rights are very wide.
If you wish to respond to the consultation paper you have until 28 March 2014.
There are specific mechanisms for complaining about school closures, additional support for learning and independent schools, so Section 70 is currently a catch-all for anything else.
When a complaint is made to Scottish Ministers under Section 70 it is passed to Her Majesty’s Inspectors of education to investigate and make recommendations. These are the same people who routinely inspect all schools and education authorities in Scotland.
At a meeting of the Scottish Parliament’s Education and Culture Committee on 26 June 2012 Mike Russell, the Cabinet Secretary for Education and Lifelong Learning, said:
Anybody who is a constituency MSP knows that, although there may not be many complaints, there are particularly profound difficulties for individual families. I am dissatisfied with the current data system and with the section 70 system, which I think is out of date. We need to look carefully at how complaints are handled and restitution is sought. We need to improve the data system and look more widely at our education complaint systems.
The proposal to repeal Section 70 is somewhat buried in a consultation paper called, and I quote, Extending the Rights of Children with Capacity Under the Education (Additional Support for Learning) (Scotland) Act 2004 (as Amended) and Repealing Section 70 of the Education (Scotland) Act 1980 Consultation Paper.
The proposal is that, instead of HM Inspectors investigating these “failure of duty” complaints on behalf of Scottish Ministers, they would be sent to the Scottish Public Services Ombudsman (SPSO).
I have nothing against SPSO at all, they do a perfectly good job. But I’m not in favour of them taking on this role, because:
- A complaint can only be made to SPSO once all local complaints procedures have been exhausted. In some circumstances, such as where an education authority is failing to meet its duty to provide education, this could leave a child outside of education for an unacceptably long period of time. Also, there are examples of education authorities deliberately taking an unacceptably long period to consider a complaint, the effect of which being to render the outcome of the complaint moot. SPSO cannot intervene when this happens, they can only comment later. They thus lack the power to ensure effective and immediate action.
- Under Section 70, Scottish Ministers may order an education provider to do something. This has the full force of law. But school and local authorities are not legally required to follow the instructions of SPSO, so the power to enforce a decision becomes much weaker.
- SPSO simply do not have the clout that Scottish Ministers have. Education Authorities are much more likely to respect an order from Scottish Ministers, in spirit and in practice, than the findings of SPSO.
- More than any other service SPSO scrutinise, education is governed by a complex and comprehensive web of primary and secondary legislation, case law and treaty rights. Education is simply not comparable to any other service provided by local authorities. Properly considering complaints in this area requires a very substantial level of understanding of education law and how it has been interpreted in case law. SPSO are very good at considering procedural and fairness issues, but they do not have a sufficient track record in enforcement of legal rights and duties to be given this responsibility.
- Removing the s.70 route for parents will increase the likelihood of them moving straight to judicial review, which will be more resource-intensive on all sides.
The right to make a complaint about education services should be much better promoted. Virtually nobody outside of legal and parent/ child advocate groups has ever heard of s.70. Fewer still are aware of s.28(1) of the 1980 Act. Parents feel powerless in the face of the school and local authority, and are not encouraged to consider how best to assert their rights. Whatever the outcome of this consultation, more effort should be made to inform parents widely on their ability to challenge decisions made that affect their child.
The consultation paper is correct that disputes should be resolved at as local a level as possible, but that is often not possible. It is naïve to think that parents are not frequently unhappy with their local authority, and s.70 is an important tool in their armoury to ensure that their children’s needs are being met.
So, please, consider responding to the consultation paper before 28 March 2014 if you want this power to be maintained, or even strengthened. You could also contact one of the many parents’ or children’s rights groups to give them your view so that it can help inform their response. Parents need to get their hands dirty and get involved in the machinery.