New Research Report: Public Administration and Justice in Wales – Education
Dr Sarah Nason and Ann Sherlock (Bangor University), Dr Helen Taylor (Cardiff Metropolitan University), Dr Huw Pritchard (Cardiff University Wales Governance Centre)
This research report examines administrative justice and education dispute avoidance and resolution in Wales. The research has been funded by the Nuffield Foundation (but the views expressed are those of the authors and not necessarily the Foundation.)
The report of the Commission on Justice in Wales (‘Justice Commission’) recognised that: ‘Administrative justice is the part of the justice system most likely to impact upon the lives of people in Wales’. Our study of education is part of a larger project on administrative justice in Wales, and two other reports have already been published. The general report, Public Administration and a Just Wales, focuses on general Welsh public administrative law across public services provision, on Welsh policies about good administration, well-being, human rights and equality, and on the key institutions in the Welsh administrative justice system, how the system is designed and overseen, and suggests reforms. Another report on social housing and homelessness is, like the education report, a case study about how the various elements of administrative justice (law, information, advice, avoiding disputes, dispute resolution and learning to improve performance) function in particular areas of Welsh public administration and impact on people’s daily lives.
Although ‘justice’ (understood as courts, police, prisons, probation etc) is not devolved to Wales, significant aspects of administrative justice are; including much substantive administrative law, initial decision-making, internal/external administrative review, the Public Services Ombudsman for Wales, and the devolved Welsh tribunals. In terms of administrative justice, education is one of the most complex devolved areas with many different bodies involved, numerous sources of law setting out these bodies’ powers and responsibilities, and a range of different procedures for challenging or questioning decisions of the bodies which provide public services in education.
Stakeholder and expert responses to our research highlighted the following potential causes of disputes regarding education: legal complexity and problems understanding the law; scarce resources; lack of good quality advice and accurate information; and navigating numerous redress systems.
Given the plethora of sources of law, and the volume relating to education, finding the relevant law is not easy. We conclude that education is an area crying out for consolidation, a process to which Welsh Government is already committed in general terms. Even when areas of substantive education law have been codified in the past, as in the Education Act 1996, there has been no codification or systematic review of the different redress systems: some areas such as exclusions and admissions have special systems; other areas are dealt with by local authority general complaints systems; and sometimes the only redress is through general remedies such as judicial review or complaint to the Public Services Ombudsman for Wales (PSOW). Our research indicates that statutory processes are not always consistently understood and operated across Wales.
Even when there is awareness of the existence of various bodies and redress pathways, it is confusing for families to appreciate the differences between them in terms of costs, possible remedies or outcomes, and the level of accessibility or formality involved in accessing them. Although there is a vast amount of information available, not all parents know how to find it and it is not always clear how it all connects together. We recommend that, as it develops, Welsh Government’s Law Wales website be used as a single repository of information about redress systems.
The Children’s Commissioner for Wales has recently published a Report, ‘No Wrong Door’ which discusses how children and their families receiving services can be ‘bounced around the system’, often waiting a long time for support only to be told they have been knocking on the wrong door all along, and sometimes feeling like they have been ‘left in limbo’ between services. The Commissioner believes that there should be ‘no wrong door’ for service provision, and our view is that the same should be true for addressing concerns, complaints or appeals relating to education services provided. This means that in the short term there should be better information, and better co-ordination between existing redress mechanisms, and in the longer-term the case for further integration and rationalisation should be addressed.
In terms of specific public body decisions, we heard that sometimes those applying the law have a poor understanding of it. In particular, reminiscent of the Covid-related discussions regarding ‘law versus guidance’, we heard from families who had experienced confusion within some local authority departments around the distinction between what was required by the law and what was actually the authority’s own policy. This is likely to be a contributory factor to children and families not accessing the services they are entitled to and to their being ‘bounced around the system’.
We also learned of concerns about the levels and consistency of knowledge and understanding among school governors, in relation to handling complaints and exclusion hearings. A fairly frequent comment in our workshops and focus groups was that the law on discrimination, and particularly disability discrimination, was not well understood or applied in schools. In our report we make a number of recommendations regarding the need for dedicated and specific training on administrative issues and routes to redress for local authority staff, particularly in relation to the differences between mandatory legal requirements, discretionary powers and ‘due regard’ duties. We also recommend consideration of whether the scope and take-up of existing mandatory training for school governors is adequate, especially in relation to complaints handling and exclusion hearings. We consider that it would be valuable to monitor and learn from the experience of the Northern Ireland Public Services Ombudsman who has jurisdiction in relation to complaints about schools once the internal school complaints process has been exhausted.
Limited access to information and advice is also a problem, particularly outside the major urban areas of south Wales. Sometimes professionals find that people have received advice that is plainly wrong. Some solicitor practices are providing pro bono advice, but this is a heavy responsibility on small practices. Third sector bodies such as SNAP Cymru and Tros Gynnal Plant are regarded as playing a valuable role, but their ability to do so is limited by availability of resources. There was consensus in our various research events that the earlier information and assistance can be provided to learners and their families, the greater the chance of success in preventing disputes from arising or escalating. In this context, we recommend that Welsh Government considers whether the provision of advocacy in relation to educational issues for children and young people is adequate, and whether it is provided early enough to avoid problems.
Throughout the project we heard that families and other stakeholders considered it essential that advice was available from bodies independent of both local authorities and schools. This was particularly marked in the area of Additional Learning Needs with many concerns that the draft ALN Code published in 2018 does not go far enough in requiring advice, advocacy and disagreement resolution services to be independent of local authorities.
The new legislation on ALN which has yet to enter into force sets up a single statutory system for all learners with ALN in place of the current SEN system of providing only some learners with a statement of SEN. Decisions by schools in relation to the identification of and provision for ALN may not be appealed to the Education Tribunal but may be submitted to local authorities for ‘reconsideration’. In introducing the legislation, Welsh Government has placed considerable emphasis on the avoidance and early resolution of disagreements. Given this emphasis, it is important that there are processes not only for scrutinising the quality of the informal arrangements in place, but also for local authorities to reflect and learn from disagreements that are referred to these arrangements. Given that ‘reconsideration’ is a new remedy in this area, it is important that local authorities collect data on its use and that outcomes are monitored.
Particular concerns were expressed by families and some others in relation to the school exclusions system, including regarding the consistency and independence of governing body hearings. We consider that training on exclusions should be mandatory for governors sitting on pupil discipline committees and we recommend there should be consideration of whether greater scrutiny of governor level hearings is possible, especially in relation to longer fixed term exclusions. Such scrutiny might involve the Education Tribunal for Wales or an extended jurisdiction for the PSOW. We echo the concerns of the Committee for Administrative Justice and Tribunals in Wales (CAJTW) and the Justice Commission concerning the lack of scrutiny of independent appeal panels on exclusions and, given the low numbers of appeals each year, recommend that appeals against permanent exclusions should be brought within the jurisdiction of the Education Tribunal for Wales. While similar concerns have been expressed by CAJTW and the Justice Commission in relation to admission appeals, our report considers that what is at stake for children and young people being excluded from school makes reform of the exclusions system the more urgent area. However, in both areas, there is a need to collect additional data, both on the use and outcomes of the redress systems, and in relation to the training provided to those implementing the systems.
While Welsh Government has embraced the participation of children and young people in the administrative justice system by providing rights of complaint and appeal in legislation, we recommend that there should be further consideration of the extent to which these rights are being exercised in practice and, if not, how practical barriers to their exercise may be addressed.
Overall, our most general conclusion, and one which informs many of our specific recommendations, is that it is essential that education disputes are appreciated within a justice perspective as well as a substantive education perspective.