Seconds away...

Aggrieved parents who feel their child has been unfairly treated by a school, for whatever reason, will have recourse to an independent arbiter in future. Richard Bird explains the implications.

Old catchphrases fade away but one from the once famous wartime show ITMA comes to mind on reading the section of the Apprenticeships, Skills, Children and Learning Bill that deals with parental complaints. The character was Mona Lott (it's all in the name) and the catchphrase: "It's being so cheerful as keeps me going."

All too often it seems that heads have to deal with this heroine's grandchildren and great-grandchildren.

On that note, there has been a good deal of attention paid to the problems with the parental complaints section of the bill - ASCL has raised its concerns with MPs and civil servants - but what are the legal hazards?

The Conservative government that introduced a statutory duty to have a complaints system more than a decade ago believed that teachers were running away with the curriculum and if parents had the right to complain, teachers would back down. Only later were schools expected to have a complaints procedure for all kinds of complaints.

Appeal process

Today, parents can go in two directions. If the complaint is general, they can complain to Ofsted, which can investigate any general matter that would be part of a normal inspection.

For complaints specific to an individual child, the governing body is under a statutory duty "to have a complaints procedure as set out... and in accordance with guidance." Governors must have constituted a formal system which will generally require that a parent first makes the complaint to the head. It may then be investigated further, internally or externally, and the findings presented to governors, who will make a judgment. There must be an appeal process.

There may be a further, formal appeal to the diocese or the local authority. There is also the possibility of an appeal to the secretary of state.

The provisions of the new bill were initially driven by the concern of the Children's Commissioner that schools were disregarding complaints about bullying. He argued that an appeal beyond the governors should be established on a statutory basis. ASCL argued unsuccessfully against this sledgehammer to crack a nut but was successful in its plea that such a complaint should not go to the local authority, where deleterious local considerations, personal or political, might weigh too heavily.

In the bill, the secretary of state has removed himself from this process and in future, assuming that Parliament does not reject the will of ministers, complaints will go to the local government ombudsman. The ombudsman has the powers of a judge to compel the attendance of witnesses and will make a ruling which the governors will be expected to act on. There is no reason to suppose that this will prevent actions for damages later.

If the governors fail to respond, an 'adverse notice' will be published. A complaint may be brought up to 12 months after the event or later at the ombudsman's discretion.

Defamation

ASCL has stressed that the new procedure will increase workload, intensify adversarial relationships and make mediation less likely to succeed.

Complainants will be able to say anything they like in the hearing without fear of action for defamation. It is not clear whether proceedings will be confidential, but it is clear that if the finding is made public, no steps will be taken to protect the head.

The steps that schools can take in advance of the bill coming into force are: update existing procedures, establish a thorough system of record-keeping of those initial complaints which may develop into something more, consider how to obtain mediation and ensure that procedures of governors are fully documented.

Finally, if the school has nothing to apologise for, it is important that no well-meaning person gives away the school's position. The Compensation Act makes provision for those involved in a road accident to say how sorry they are about an accident without this being taken as an admission that they were responsible for it.

Schools may need to be a bit more wary than that until the operation of the new system is clearer.