Exclusion Appeals - Additional Guidance

Information Regarding the Education Appeal Committee

Appeals about most placing requests and all exclusions are heard by an Education Appeal Committee, set up and maintained by the education authority. The Scottish Committee of the Administrative Justice & Tribunals Council has a statutory remit to keep under review the administrative justice system generally in Scotland and the constitution and working of tribunals, which also includes Education Appeal Committee

An appeal committee, set up under section 28D(1) of the Education(Scotland) Act 1980, shall be constituted in accordance with Schedule A1.

"An appeal committee shall consist of 3,5 or 7 members nominated by the authority from among persons appointed by the authority under Schedule A1; and sufficient persons may be appointed to enable 2 or more appeal committees to sit at the same time."

As it is important that appellants have confidence that they will receive a fair hearing from an appeal committee, care should be taken to avoid any choice of members that may give rise to a conflict of interest. The appeal committee members should be reminded on appointment that the appeal committee is an independent committee and should act impartially. Hearings must be conducted in accordance with the requirements of natural justice and human rights legislation and in as informal an atmosphere as is compatible with the importance of the hearing.

Membership of the EAC

As per Schedule A1 (3) of the Education (Scotland) Act 1980, the persons appointed to sit as members of an EAC shall comprise

  • Elected Members
  • Parents of children currently of school age (and traditionally drawn from Parent Councils)
  • Persons who in the opinion of the authority have experience in education; or are acquainted with the educational conditions in the area of the authority

However, no person employed by the authority as director of education or in an administrative or advisory capacity as respects the discharge of their education functions can sit as a member.

Similarly, whilst there is no requirement to have an elected member on every EAC, there is a requirement that where Elected Members are on the panel, they must not outnumber other members on the EAC by more than one. In addition, an Elected Member cannot Chair the EAC.

Clerk to the Committee

Each appeal committee will have the services of a clerk whose role should be explained to the appellants. The clerk will normally be an appropriate officer of the local authority and will be responsible for arranging the hearings and circulation of papers. He/she should be an employee who, in the course of his/her employment by the local authority, does not deal regularly with the admission of children to school, the exclusion of children or children with special educational needs. The clerk will be responsible for the production of a record of the hearing. If the committee withdraw or invite the parties to do so when they wish to consider their decision, the clerk should remain with the committee but only for the purpose of offering advice on procedure and the application of the relative legislation.

The clerk may be called on to give advice on procedure to the appeal committee during the course of the hearing and when they retire to consider a decision.

Information Regarding Procedures Before Notice of Appeal

Placing requests can be made and decisions appealed during term time.

An authority’s admissions procedures should ensure that the point of appeal is not reached until all other means of settlement have been exhausted. Authorities must seek to arrange their timetable so that notices of appeal may be lodged well before customary holiday periods in order that all appeals for the following school session are normally heard and decided before the beginning of that session.

The notice of a final decision not to uphold an appeal relating to parental preference, exclusion or additional support needs case should be accompanied by information in simple terms on how an appeal can be made about this decision.

Notice of Appeal

A placing request appeal must be lodged by the appellant with the appeal committee within twenty eight days of receipt of the education authority’s decision. The appeal committee have power, on good cause being shown, to hear appeals which have not been made timeously. In the case of appeals against exclusions, there is no time limit for appeals to the appeal committee.

Acknowledgement of Appeal

Within five working days of receipt of a reference to the appeal committee, the appeal committee must issue an acknowledgement of it and give notification of it to the education authority. (In practice this will be carried out by the clerk.)

Hearings

An appeal committee must afford the appellant an opportunity of appearing and making representations and in all cases a time and place of hearing must be appointed. The notification to be given to an appellant must include a statement as to his/her rights:

  • to appear or to be represented at the hearing, for example by a lawyer, relative or friend;
  • to be accompanied at the hearing by up to three friends including the person (if any) representing the appellant;
  • to lodge written representations;
  • to allow the presentation of his/her case to rest on written representations, if any, lodged by him/her or on his/her behalf;
  • that  a hearing may proceed in the absence of the appellant;
  • that the education authority will be represented at the hearing.

Appeals must be heard in private but any of the following persons may be present as observers (the first four by permission of the chairman and the fifth by right):

  • a member of the education authority;
  • the Director of Education of the education authority or any person representing him/her;
  • a panel member who would benefit for training purposes from attending;
  • a member of Her Majesty’s Inspectorate of Schools;  
  • a member of the Administrative Justice & Tribunals Council or its Scottish Committee.

The procedures at the hearing should be as follows:

  • Presentation of the case for the education authority
  • Questioning by the appellant
  • Questioning by the appeal committee
  • Case for the appellant
  • Questioning by the education authority
  • Questioning by the appeal committee
  • Summing up by the education authority
  • Summing up by the appellant

The chair of the Committee has ultimate control over the procedure followed. Members are also allowed to put questions to anyone giving evidence at the hearing.

The Suggested Guidance on Reaching a Decision in Placing Request Cases

It is for the education authority to satisfy the committee that the duty to place the child in the school preferred does not apply because one or more of the following grounds exists or exist when the appeal is heard:

  • Would make it necessary to employ an additional teacher;
  • Would give rise to significant expenditure on extending or otherwise altering the accommodation or facilities provided in connection with the preferred school;
  • Would be seriously detrimental to the continuity of the child’s education or would be likely to be seriously detrimental to order and discipline in the school;
  • Would be likely to be seriously detrimental to the educational well-being of pupils attending the school;
  • Assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child’s primary education, for the education authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at that school.

Decisions

The chairman of the appeal committee should inform the appellant and the authority whether the committee propose to notify their decision with the reasons for it in writing at the conclusion of the hearing or at some time after that conclusion.  If the appellant is not present or represented at the hearing, then immediate written notification of a proposal to defer the decision must be given to the appellant. Deferral is not the only option available to an appeal committee: it can decide to consider the appeal and reach a decision in the absence of an appellant.

Where the appeal committee do not announce their decision at the end of a hearing, they should notify their decision and their reasons for that decision in writing within fourteen days. Where appropriate, they must inform the appellant of any right of appeal to the sheriff and the time limit applicable.

It is important that the decision is fully and clearly expressed; that reasons are given for the decision; and that it is capable of being understood by a lay person.

It would be helpful to appellants if somewhere in the decision letter they are informed of the internal complaints procedure operated by the local authority or a contact name who can advise of the procedures required to be followed.

Record of proceedings of an appeal committee

The clerk of an appeal committee should keep notes of the proceedings, the attendance, the voting, the decisions and the reasons for the decisions. Such documents will not be public. In deciding how long to keep any notes the Clerks will need to take into account the Freedom of Information policy of the local authority.

Useful Publications

  • COSLA Revised code of practice for the constitution and procedures of education appeal committees in Scotland – published July 2001
  • A-Z of Scots Education Law  - A Guide for Parents 3rd Edition ISBN 978-011-497346-9
  • Scottish Executive circular 1/2001 Placing Requests for School age Children – http://www.scotland.gov.uk/Publications
  • Scottish Government circular 8/2003 Exclusion from Schools in Scotland: guidance to Education Authorities – http://www.scotland.gov.uk/publications
  • Scottish Government: A guide for parents on Choosing a School and the placing request system, November 2010 – http://www.scotland.gov.uk

Useful Organisations

Additional Support Needs Tribunals for Scotland
5th Floor
Highlander House
58 Waterloo Street
Glasgow
G2 7DA
Tel: 0845 120 2906
Website: www.asntscotland.gov.uk

Citizens Advice Scotland
Spectrum House
2 Powderhall Road
Edinburgh
EH7 4GB
Tel: 0131 550 1000    
Website:www.cas.org.uk

European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex
France
Tel: +33 (0)3 88 41 20 18 
Website: www.echr.coe.int

Law Society of Scotland
26 Drumsheugh Gardens
Edinburgh
EH3 7YR
Tel: 0131 226 7411         
Website www.lawscot.org.uk

Scottish Committee of the Administrative Justice and Tribunals Council
George House
126 George Street
Edinburgh
EH2 4HH
Tel: 0131 271 4300             

Scottish Government Learning Directorate
Victoria Quay
Edinburgh
EH6 6QQ                    
Website www.scotland.gov.uk

Enable
1 Wester Shawfair
Danderhall
Midlothian
EH22 1FD          

Website www.enable.org.uk       

Contact Us

Education and Social Care
Council Office
High Street
Elgin
IV30 1BX

01343 563374

educationandsocialcare@moray.gov.uk

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