The Scottish Government recently consulted on a (longstanding) proposal that the functions of education appeal committees (hearing exclusion appeals, and most placing request appeals) be transferred to the Health and Education Chamber of the First-tier Tribunal for Scotland.

With the assistance of colleagues, I prepared a response on behalf of My Rights, My Say. The edited highlights of the response are below.

The Tribunals (Scotland) Act 2014 provides that the Scottish Tribunals operate within a framework which ensures certain standards and principles which are beneficial to parties (especially appellants). For example, Section 3 sets out a requirement to uphold the independence of the Tribunals. Education appeal committees are not independent of the education authorities whose decisions they have to consider.

Section 12 of the 2014 Act sets out the guiding principle for the Tribunals, i.e. to ensure that proceedings are accessible and fair, and handled quickly and effectively.  The education appeal committees do not benefit from the same statutory safeguards.

Sections 13 & 14 of the 2014 Act (together with Reg 3A of the Scottish Tribunals (Eligibility for Appointment) Regulations 2015, as amended) require ordinary members sitting within the Health and Education Chamber to have knowledge and experience of children or young persons with additional support needs or a disability.  There is no equivalent requirement for members of an education appeal committee.

Section 63 of the Tribunals (Scotland) Act 2014, together with Rule 12 of the First-Tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018, allow for the monitoring and enforcement of Tribunal decisions.  There is no equivalent procedure available in the education appeal committee decisions.

Part 3 of the 2014 Act deals with the transfer-in of Schedule 1 listed Tribunals (such as the education appeal committee) to the Scottish Tribunals.  Section 28 allows for the transfer-in of functions, and Section 29 for the transfer-in of members.

Our understanding is that the proposal would be for the transfer of the education appeal committees functions to the First-tier Tribunal for Scotland, without the transfer of members.  The nature of the membership of education appeal committees is by it nature transitory, and it is done on a voluntary basis (or as part of the duties of an elected councillor).  Given the requirements for some categories of EAC member to be closely connected to an education authority, it may cause problems to transfer-in members to the Tribunal, as they may not be seen as independent or impartial.

At the moment, there is a complicated and unintuitive split for placing requests appeals in relation to children and young people with additional support needs.

Placing requests in relation to children with additional support needs are all covered by the Education (Additional Support for Learning) (Scotland) Act 2004, but some placing request appeals are heard by the education appeal committee, and some are heard by the First-tier Tribunal.  There are even some rare cases in which a case can be heard by the education appeal committee, with the further right of appeal going to the Tribunal, rather than the Sheriff Court.  Education authorities are not always fully aware of the dividing lines, with several instances we are aware of in which parents or young people have been given incorrect information on where to appeal to by the education authority.

In cases where complex additional support needs placing requests are heard by the education appeal committee, it is not uncommon for members of the committee to express the view that they are out of their depth.  Education appeal committees lack the specialist knowledge that the Health and Education Chamber has in such matters.  As a committee of volunteers, it is also difficult to secure a hearing of sufficient length to do such cases justice.  A three day hearing at the Tribunal is not uncommon for placing request appeals, while it is extremely rare in the education appeal committee, and where it has happened, has often been on non-consecutive days.

Transferring all placing request cases to the Tribunal would avoid such confusion arising and would ensure that all cases involving children with additional support needs are heard by a Tribunal with the relevant specialist knowledge.

At the moment, the Tribunal does hear exclusion cases, but only in relation to claims of disability discrimination.  Appeals against exclusion are heard by the education appeal committee.  While education authorities are required to notify parents / young persons of their right to appeal against an exclusion (to the EAC) there is no equivalent duty to inform anyone of the right to challenge an exclusion by way of a disability discrimination claim.  Our experience is that education authorities do not voluntarily notify those excluded of this right.

Having one body dealing with both types of cases makes sense, and avoids cases not being brought due to a lack of knowledge of the right to do so.

National statistics show that disabled pupils and pupils with additional support needs (including looked after children – despite recent commitments in The Promise) are excluded much more often than others.  While such disproportionality exists, it is essential that appeals are heard by a body with the requisite specialist knowledge and understanding.

Decisions made by the education appeal committee and the Tribunal alike affect the child (or young person) and their education.  In some instances the child or young person will be the one bringing the case to the appeal committee or Tribunal, but overwhelmingly it will be a parent(s) doing so on their behalf.  It is therefore critical that the child’s views are effectively heard within the proceedings (in compliance with Article 12 of the UNCRC) and that the child’s best interests are viewed as a paramount consideration (Article 3).

In fairness, recent requests from this service to education appeal committees for steps to be taken to facilitate the child’s views being considered, have been (by and large) accepted.  However, the centrality of the child’s views is not “baked in” to the appeal committee in the same way as it is with the Tribunal.  For example, in one recent case, where the child wanted to give their views in writing, we ended up using the “My Voice” form provided by the Tribunal, as there is no equivalent in the appeal committee system.  There is also no provision for the appeal committee to secure the services of independent children’s advocacy services, which is a routine step within the Tribunal.  (cf. Guidance Note 01/2021 – “The Child, Young Person and the Tribunal”)

The Tribunal process also specifically encourages and provides for the use of mediation (cf. Section 15 of the 2004 Act; Rule 24 of the Tribunal Rules) to promote and facilitate the early resolution of disagreement and settling of appeals without the need for a formal hearing.  There is no equivalent provision within the education appeal committee process.

Provided that appropriate support structures could be extended to parents and children going through an appeals committee, the move to the Scottish Tribunals would be welcome as it would promote and enhance the rights of children, young persons and parents, especially the rights of children to have their views recognised and represented in matters that affect them (UNCRC Article 12). It is imperative though that a move to the Tribunals is well planned, well thought out and well-funded, to ensure that current support and advisory services extended to children, young persons and parents involved in an ASN Tribunal, will be extended (and scaled) to meet the needs of children and parents going through an appeals process.

Were the appeal committees to remain with the local authorities, then more should be done to ensure that children of all ages are offered support to share their views in a meaningful way, and to ensure impartiality and fairness.

With the planned implementation of the UNCRC it is becoming even more important that children are involved and included in decision making processes that affect them. The already existing structures within the Tribunal service would go a long way in supporting this.

The My Rights, My Say children’s views service has seen a small but significant increase in cases relating to exclusions and discrimination cases. With support from the children’s views service, children and young people have been given the opportunity to share their experiences of the issues that led to the exclusion, make their own suggestions as to what could have been done differently, and outline what support they feel they need going forward.

It should be noted that improvements to the current system have been proposed for some time now.  To give one example, it has been over two decades since the Scottish Committee’s special report called for appeals to be heard in neutral venues, but appeal committees are still almost universally held in Council buildings. We ask how much confidence pupils (or parents) should have that any proposed improvements to appeal committees will actually be made, given the history of inaction here?

We strongly oppose the status quo option for education appeal committees.

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