Education and Training

2.Main Content

Education and Training

This page contains information about:
Resolving education disputes
Admissions
Exclusions
Special educational needs
Higher education
Disability discrimination

Resolving education disputes
This section looks at ADR options available for disputes relating to education and training, including primary and secondary school, higher education, and continuing and adult education. You can find more information about problems with education on the Advicenow website.

The types of problems for which ADR is available include:

school admissions
exclusions
disability discrimination
special educational needs

The first step for most disputes related to education is the complaints procedure of the institution or responsible body, such as the school, the college or the local education authority. If you are unable to resolve your complaint directly, the next step in dealing with complaints about special educational needs and disability discrimination is the tribunal (the Special Educational Needs and Disability Tribunal, or SENDIST). In Scotland disputes over education can be taken to court if they are not resolved through local negotiation and appeals processes.

ADR options
Although there is no national ADR provision specifically for education disputes, mediation and ombudsman schemes are the most likely alternatives to court and the SENDIST.

Ombudsmen – in England and Wales, this would be the Local Government Ombudsman; in Scotland, the Scottish Public Services Ombud; and in Northern Ireland, the Northern Ireland Ombudsman. Education issues, including admissions and special educational needs, made up about 7% of complaints and 45% of the investigation reports by the Local Government Ombudsman (LGO) for England in 2004/05. A new ombudsman-like service, the Office of the Independent Adjudicator for Higher Education (OIAHE), began operating in March 2004 for student complaints in higher education.

Mediation – this is an option in disputes involving exclusions, special educational needs and higher education institutions (including cases of alleged disability discrimination by schools and colleges). All local education authorities are required to offer independent ADR as an alternative to the SENDIST tribunal system – this is usually mediation. See SEN Mediation in London for a profile of Special Educational Needs mediation in one area.

In addition to ADR options for individual education disputes, there is a growing field of peer mediation in schools, which aims to promote conflict resolution skills within schools and to prevent bullying among students. (For contact details for peer mediation schemes, see Mediation UK)

Admissions
Education appeal committees are the primary means of challenging a decision refusing a parent's choice of school, where an informal approach by the parent does not achieve a satisfactory resolution. There is no widespread availability of ADR for these complaints. Complaints about how a decision was made, however, can be investigated by the Local Government Ombudsman in England or Wales or, in Scotland, the Scottish Public Services Ombud. This includes the actions of a governing body that is the admission authority of a grant-maintained or voluntary-aided school, and the independent appeal committees set up by those governing bodies.

Complaints about maladministration by an education appeal committee - for instance, not following the Code of Practice or not abiding by its own policies - can also go to the Local Government Ombudsman in England or Wales or, in Scotland, the Scottish Public Services Ombud.
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Exclusions
Mediation
Mediation is sometimes offered as an option in disputes over school exclusions, or potential exclusions, although its geographical availability is patchy. Mediation in such cases is usually free, although the way it is provided - and the extent of its independence - varies. Some local authorities are training education staff members to offer mediation between parents and head teachers.

Ombudsman schemes
The local government ombudsman schemes can consider complaints about children's exclusion from school. But can only investigate maladministration causing injustice. For more information on what this involves, see What is maladministration?. The outcome, when an ombudsman has found maladministration that resulted in injustice, might be to compensate the child and parents for the disruption to the child's education; LGO investigations can take a long time, and it might well be that by the time the LGO reports, the child is settled at another school and does not want to return to the original school. However, a reconsideration of the decision to exclude can also be an outcome.

Note that one of the consequences of a dispute over a child's permanent exclusion is that the relationship between parents and school can be badly damaged. This won't necessarily be remedied by an ombudsman's recommendation that the school reconsider its decision. In situations where the child will be returning to that school, it might be appropriate to consider whether mediation might help repair that damage.

Note also that an ombudsman cannot investigate complaints about school personnel, curriculum, management or discipline.
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Special educational needs
Mediation
The : Department for Education and Skills (DfES) oversees the Code of Practice governing special educational needs (SEN), which applies in England and Wales only. This sets out for local education authorities (LEAs) what is expected of them and of schools in handling complaints and disputes about SEN, and it encourages the early local resolution of such disputes. All LEAs are required to provide independent disagreement resolution services; in most cases the type of disagreement resolution used is mediation (see Mediation). A scheme profile of one such scheme can be found on the SEN Mediation in London page. A number of regional providers of SEN dispute resolution services can be found in the ADR directory on this site.

In Scotland, the Education (Additional Support for Learning) (Scotland) Act came into force in November 2005. This talks about additional support for learning instead of special educational needs, and provides a code of practice which offers detailed guidance on the new system. Factsheets with information about how this works in Scotland can be found on the Enquire website.

One advantage of mediation in resolving disputes about special educational needs is time, which is particularly crucial when an ongoing dispute means that a child is being deprived of the educational services he or she needs. In England, Wales and Northern Ireland the final rung for complaints is the tribunal. In Scotland such disputes ultimately go to the sheriff court. But statutory procedures are time-consuming: a tribunal decision, for example, can take up to six months, whereas a mediated agreement could be achieved in a much shorter time-frame, sometimes weeks. Also, tribunals can be extremely stressful for the parents, and the lack of any control over the outcome can heighten the anxiety.

If you can't reach an agreement through mediation, you can still go on to a tribunal hearing or to court.

Ombudsman schemes
The Local Government Ombudsman schemes are an option for complainants who believe that there has been maladministration in the way the authority has dealt with their complaint about special education needs. See What is maladministration? for more information about this. In most cases the maladministration involves delay in assessing a child's needs or amending a child's statement, or failure to provide support as specified in a statement. The ombudsman can either help the parents and the school resolve the dispute through a “local settlement”, or can conduct a full investigation and produce a report. The ombudsman can recommend compensation to the parents, and/or a review of the local education authority's procedures, but cannot overturn a decision. The ombudsman cannot usually investigate a dispute where the parent has a right to tribunal.
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Higher education
In 2007 a research project was set up to explore how disputes in higher education institutions are resolved. The research project will audit current practice and experience, and try to identify factors which might suggest which disputes are suitable for mediation. You can keep up to date with the project's findings on their website: Improving dispute resolution in higher education

The Office of the Independent Adjudicator for Higher Education began operating in March 2004. It replaces the former "Visitor" system and provides an independent review of complaints by students in higher education. Complaints must first have been through the internal complaints process of the higher education institution. For more details of how th4 scheme works, wisit the OIAHE website.

One difficulty with the Visitor system that has been carried through to the new Independent Adjudicator role is that academic judgements (such as decisions about admissions or about marks) cannot be investigated.

A mediation service is provided by the Oxford Centre for Higher Education Policy Studies (OxCHEPS). This service is intended to complement that of the Independent Adjudicator and to offer the means of an early, informal resolution by mutual agreement. The fee is £750-£950, depending on the mediator (the fee is negotiated between the parties and the mediator), plus expenses including travel and venue costs. The mediator's fees cover one day of mediation plus some preparation time. There is also an administration fee of £100, which is usually paid by the Higher Education Institution (HEI).

OxCHEPS states that 'In view of the imbalance of resources between an HEI and a student or member of its staff, we encourage the Institution to agree to bear the bulk if not all the costs of the mediation. A fair proportion to be paid by the individual in dispute with the institution might be up to 25%.'

Also, note that OxCHEPS highlights the need for independent legal advice: 'The mediator does not offer legal advice, but will endeavour to ensure that a party who is not accompanied by a legal representative is not at a disadvantage, by encouraging both parties to refer the agreement to an appropriately qualified advisor before signature. In the case of a student or unrepresented member of staff, the University or other higher education institution is encouraged to consider making available a modest sum for the other party to spend on this advice (as is usual in the case of settlements of Employment Tribunal cases).'
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Disability discrimination
From September 2002 it has been possible to use the Disability Conciliation Service (DCS) as an alternative to SENDIST or the county or sheriff court for resolving complaints about disability discrimination by schools. The DCS provides free, independent conciliation of disputes arising under Part III (related to goods and services) and under Part IV (related to education) of the Disability Discrimination Act 1995. You must be referred to the scheme by the Disability Rights Commission.

It can also be used instead of county or sheriff court for disputes involving disability discrimination by higher and further education institutions.
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July 2006