One thing I come across from time to time is the application of “Unacceptable Actions Policies” by education authorities to parents raising concerns about their children’s additional support needs.
Typically, this might be used where an education authority have concerns about the frequency or nature of complaints made to school or other staff by a particular parent. Where used, the effect would usually be to restrict the ways in which a parent is allowed to make contact with the school. For example, they might be given a specific person to contact, and asked to do so only by e-mail. Some examples might mean a parent is asked not to attend the school premises, except by prior arrangement – which can extend to not attending to drop off or pick up the child at school.
In considering this issue further, I have had a look at the policy in place for Glasgow City Council. This is not because Glasgow are any worse than anyone else in this regard, but simply as they happen to the Council involved in the most recent case I looked at. Fair play to Glasgow, it must be said, for making the policy freely and easily accessible on their website. I also looked at decisions of the Scottish Public Services Ombudsman (SPSO) I was able to find which were relevant to this type of policy.
Glasgow’s policy specifies three different types of unacceptable actions by customers:
- Aggressive or Abusive Behaviour;
- Unreasonable Demands; or
- Unreasonable Persistence.
Aggressive or Abusive Behaviour
The policy helpfully distinguishes between anger (which it implicitly recognises may be justified) and aggression (which is not). I have some slight concern that “it is sufficient for staff to feel afraid, threatened or abused for the council to consider a customer’s behaviour or actions unacceptable”. This appears to be the case regardless or whether it is objectively reasonable for the member of staff to feel that way. To give an extreme example, a staff member who felt threatened simply due to a parent’s stature and racial origin is surely not the sort of thing the policy intends to cover. It also means that any declaration that staff felt threatened is effectively taken at face value without any enquiry into the circumstances of the case.
However, these are fairly extreme examples, and this section is by and large unobjectionable.
This covers things like insisting on speaking to a particular member of staff, continuing to raise the same issue in the hope of eliciting a different response, focusing on a “trivial” matter, insisting that a response is not adequate in spite of “a large volume of correspondence”. Such things amount to unacceptable actions if they start to take up too much staff time.
We are clearly into much more subjective territory here, and possibly in danger of categorising understandable (and often necessary) parental advocacy as unacceptable. Of course, the expectation is that the Council will apply the policy reasonably, but it leaves much effectively to the discretion and viewpoint of staff against whom (or against whose colleagues) complaints may be being made.
“The way in which these customers approach us may be entirely reasonable, but it is their persistence in continuing to do so that is not.”
Basically, the Council reserve the right here to cease engagement with a customer on an issue at the point the matter is referred to the SPSO, or otherwise reaches the end of a complaints or other process. Which is, in most cases, going to be fair enough.
Let’s have a look at some real life examples, as considered by the SPSO…
SPSO Decision 201806323, Glasgow City Council
In this instance, the Council placed restrictions on Ms. A under their policy. However, in doing so, they failed to let her know about her right to appeal against that decision, they failed to let her know what conduct of hers had led to the decision, they failed to keep proper records indicating their reason for imposing the restrictions, and they failed to review the decision on a six monthly basis (as their policy required).
While the SPSO were keen to point out that “The Council are entitled to apply their UAP” and that “we are not an appeal route for that decision”, they did uphold the complaint against the Council and made a series of recommendations to improve the operation of the policy in future.
SPSO Decision 201702414, East Dunbartonshire Council
The Council’s policy was applied in this case due to correspondence from Mr. C placing unreasonable demands on the business of the Council. The Council, however, confirmed that they did not / could not consider properly made Freedom of Information (FOI) requests to fall within the category. As they have a statutory duty to comply with same, these could not be regarded as imposing unreasonable demands.
However, the Council were then unable to produce to the SPSO much in the way of non-FOI correspondence. The SPSO therefore found that Council had unreasonably applied their policy in this case.
SPSO Decision 201701620, Aberdeenshire Council
The complaint in this case (made by Mr & Mrs C) was not upheld. The Council had followed its own process correctly. They had identified the conduct they felt was unreasonable, and had warned that it may lead to the policy being invoked. They had written to clearly explain the restrictions being imposed, and explained the process for reviewing the decision (at least every three months).
SPSO Decision 201306096, Glasgow City Council
This complaint was upheld in part. The SPSO determined that the application of the policy to Mr. A had taken place after proper consideration had been given to the nature and frequency of his communication with staff. There was no evidence that the Council had been inconsistent or that they had been unreasonable in not inviting Mr. A to meetings regarding the care of his child.
However, the process for review of the decision had not been properly followed, and the complaint about the policy itself had been delayed. Appropriate recommendations on these points were made.
SPSO Decision 201407836, Scottish Borders Council
While not upholding a complaint by a member of the public who had been turned away from a public event duet to his behaviour, the SPSO did recommend (for the sake of completeness) that the witness to the incident identified by Mr. C be contacted to see whether their testimony would have an effect on the decision.
SPSO Decision 201202410, Glasgow City Council
The SPSO found that the complainer in this case met the criteria for bringing the policy into effect – in terms of her behaviour and demands (which were related to complaints on noise). While the Council would no longer respond to her e-mails or phone calls, they had left open a means by which she could complain about anti-social behaviour or noise, and had continued to receive and respond to her letters.
As we might expect from the SPSO, these focus largely on procedural elements. They are nonetheless a useful reminder of the need for clarity in why a policy is being applied, the issueing of a warning beforehand, and the ability to access processes for appeal and/or review of the decision.
One important postscript to all of this is to bear in mind Section 27 of the Equality Act 2010 which forbid discrimination by way of victimisation. The legislation designates complaints that a person or body had breached the 2010 Act as protected acts. It is unlawful for an education authority to subject someone to a detriment due to them making an allegation of unlawful discrimination (whether they refer to the Act or not). So, a parent making allegations to a school of unlawful disability discrimination (e.g. a failure to provide reasonable adjustments for a disabled child) should not be subject to any kind of detriment (e.g. having their contact with the school restricted). The same protection applies to bring court of Tribunal proceedings under the Act, or being a witness in such proceedings. The protection of the Act does not apply to false allegations which are made in bad faith.
Here is an example of these provisions being used in relation to allegations of discrimination on the grounds of religion or belief under older equivalent legislation: Council pays out in school religion row.
There are no equivalent protections under the Education (Additional Support for Learning) (Scotland) Act 2004, although it may be argued that in many cases, an allegation of failure under the 2004 Act for a disabled pupil, will also amount (in effect) to an allegation of unlawful disability discrimination – and therefore be protected in the same way.