Why is independent adjudication for education disputes being hidden?

Mr. and Mrs. Smith had been in a long running and acrimonious dispute with their education authority about the education of their son, Mark, aged 13 years.

It's a scenario which may seem all too familiar. In this case, however, it's a work of fiction – a story. Mark Smith (age 13) features in an example from “Supporting Children's Learning”, the Code of Practice for additional support for learning. Like all good stories, this one has a happy ending: “Mr. and Mrs. Smith and staff from the school began to work together to Mark's benefit.”

The intervention which brought about this dramatic shift in fortunes? The process of dispute resolution known as “independent adjudication” introduced by law in 2005.

Never heard of it? You're not alone. Last year, there were only 8 cases.

Independent adjudication can be used only for certain types of dispute, known as “Specified Matters”. These include: decisions about whether a child has additional support needs or not; decisions about assessment requests; failures to refer to an outside agency; and failures to provide additional support.

The law specifically requires education authorities to notify parents of their right to make a reference to independent adjudication where a formal decision is taken in response to a parental request.

However, parents don't generally know that they can make formal requests, and authorities generally don't take decisions on additional support needs formally. There is a correct statutory process which involves a formal, written decision including letting the parent(s) know about their right to complain to an independent adjudicator.

This essentially never happens. Instead, someone ticks a box on a computer screen. Or, everyone just knows that the child has additional support needs. Or, there is a multi-agency meeting to discuss the child and their needs. There are over 140,000 pupils with additional support needs and almost none of them have been identified through the correct statutory process.       

That lack of process is not always problematic, but it does nothing to help raise the profile of independent adjudication as a useful remedy for parents.

In any event, most parental complaints are not about the formal decisions. They’re about failures to provide support. It's not hard to guess that these constitute the overwhelming majority of references to independent adjudication. In fact, you probably did guess.          

What that means, however, is that there’s no decision letter to trigger a duty to notify the parent, and – as we will see – local authorities are not falling over themselves to draw the process to the attention of parents in dispute.

In two separate decisions this year, against Highland Council and Fife Council, the SPSO upheld complaints by parents. The Ombudsman found that they “had a right to be made aware of the alternative dispute resolution provision” and recommended that the Council ensure parents were appropriately advised of their rights to independent adjudication.

This reluctance to promote the availability of independent adjudication is a real shame, not least because it is an excellent system.

In summary, a letter of complaint is sent to the Scottish Ministers, who notify the authority. The authority appoints the nominated adjudicator and provides a written response. There is a further period for either side to provide further comments or documents. The adjudicator reviews the paperwork and produces a decision, usually with recommendations. Just like an Ombudsman, the recommendations are not binding, but almost always followed.

It is a remarkably user-friendly dispute resolution mechanism. It is little more than a specialist complaints process. It does not involve any face-to-face meetings that can prove stressful in Tribunals and even mediation. It is certainly the only such process that can be acceptably completed in your pyjamas. At a maximum of 60 working days, it is commendably brief, too.

It is a good way to ensure that disputes are considered by the authority at an appropriate decision-making level. As a result, many references are resolved at an early stage.

The adjudicators, though criminally underused, produce good quality decisions which usually serve to resolve or at least improve the issues in dispute – just as in the case of Mark Smith (aged 13).

However, the process cannot achieve positive results if it continues to be hidden from the sight of those who could most benefit from it.

In order to reverse the low levels of use (and avoid adverse SPSO decisions) authorities should consider formalising some decision-making processes to ensure that parental involvement and parental rights are facilitated and highlighted. They should ensure that independent adjudication is promoted generally among parents, parent councils and school staff. And finally, school staff and education department staff should be made aware which types of dispute can be referred to independent adjudication and signpost parents when relevant complaints are received.

Iain Nisbet is Education Law Specialist at the Education Law Unit, Govan Law Centre