What is an appeal?
An appeal is a formal action you can take in certain situations if you disagree with decisions made about your child's education by your local authority.
You may wish to consider carefully whether to make an appeal or not. It can be a time-consuming and stressful process. You also need to be sure that you have appropriate grounds on which to make an appeal, otherwise your time will be wasted. Before you appeal it makes sense to have raised all your concerns with an appropriate senior officer from your local authority. Doing this can open the way to useful discussion and negotiation, which, in turn, may lead to difficulties being resolved outwith the formal appeals process.
Educational appeals are regulated by the Education (Scotland) Act 1980 as amended.
Who can make an appeal?
1. Any parent/guardian who disagrees with the local authority in certain circumstances (see below).
2. Any young person aged sixteen years old or older, has a right to represent themselves, although they may be happy for their parent to act on their behalf.
3. A child can appeal against an exclusion from school.
What you can appeal about
You can appeal if:
1. your placing request for a school (not a nursery) has been refused. However, there are various reasons why an education authority can turn down your placing request
2. you disagree with the school named by the local authority in Part VI of the Record of Needs. It is important that before you appeal against the local authority's named placement you should have made a placing request;
3. you are unhappy with the summary of your child's or young person's impairments in Part IIIB noted in the Record of Needs;
4. you are unhappy with the statement of special educational needs arising from those impairments noted in Part IV of the Record of Needs;
5. the local authority has decided not to open a Record of Needs, or to discontinue a Record;
6. the local authority has decided to open a Record of Needs, or to continue a Record for a child under 16 years old;
7. if your child has been formally excluded;
8. the new Standards in Scotland Schools etc Act also gives a young person who has been excluded the right to appeal themselves.
When appeals cannot be made
You can not appeal against any other aspect of educational provision. However, if you do disagree with what the professionals are suggesting but are unable to appeal, there are still steps you can take. For instance, you can:
1. speak to the professional involved to see if you can resolve the disagreement informally;
2. make a complaint to the local authority;
3. make a complaint to the Local Government Ombudsman in cases of maladministration or mismanagement;
4. take legal advice or court action.
For more help and guidance on the appeals procedure contact Enquire on 0845 123 2303
How to make an appeal - what happens next
Write a letter to the local authority explaining that you want to appeal against their decision, ideally within 28 days (although appeals may be heard later than this time if there is a good reason). You should be notified of your right to appeal by the local authority. They should acknowledge your request for an appeal within about a week of receiving your letter.
The Appeal Committee will arrange a 'hearing' to consider your appeal. It may take about two weeks for the local authority to set a time and place for the hearing. The hearing must be held within 28 days after the Committee receive your letter of appeal, unless many appeals are being held at the same time.
Preparing for an appeal
a. Write down your reasons for making an appeal.
b. Collect any evidence to prove the local authority's decision has been unjustified and evidence to back up your argument.
c. Try to obtain the local authority's policies or guidelines if possible. They should have a policy on special educational needs provision and other policies may exist eg. on inclusion or support for children with social emotional and behavioural difficulties. If policies are under development it is important to note these too.
d. Look at relevant legislation and guidance to local authorities to check the authority is upholding the law. Keep a copy of relevant sections. You can use quotes from these documents when you are writing letters.
e. If you can, find out what has happened in similar cases locally or elsewhere. You may find out more by joining a local parent's group.
f. Find people that can support you prepare for the hearing and attend the hearing with you. If your child has a Record of Needs, the Named Person noted on the Record could fulfil this role.
Organisations exist that may be able to provide more specific advice regarding your case. Some organisations can help represent you. For more information on who these organisations are you can contact Enquire on 0845 123 2303
Who considers the appeal?
If the appeal is to be considered by the Scottish Ministers, the local authority will send it to them.
The Ministers will appoint one or more advisors who will ask for your views, including your reasons for appealing, and those of your child, if appropriate. The advisor(s) may wish to speak to you and your child, and to visit your child's school. The advisor(s) will prepare a report which will be sent to you and the local authority for comment. Comments on the report will be considered by the Ministers before they reach a decision.
Members of the Appeal Committee
The Education Authority Appeal Committee is made up of no more than seven people. Some members will have experience in education. There should be at least one member who has experience in special educational needs. Members must not be involved in a school relevant to your appeal.
Hearings - what happens?
You can attend the hearing and take up to three people with you. If you are unable to attend or do not feel confident at speaking, one of these people can speak on your behalf. The local authority may also involve other people to speak in support of their decision.
In some situations the hearing may consider more than one case, eg. if more than one appeal has been made for the same school. In this situation, the facts, which are relevant to all cases, are looked at together eg. staffing and accommodation at the school, how the requests were considered and decisions arrived at. If this is so, then it may take longer than 28 days to hear your appeal. Additionally, if some parents want to appeal after the date of your hearing has been set, the Committee may postpone your hearing and fix a later date to hear all the appeals together.
Before the Hearing:
You can choose whether or not you wish to put your case in writing. If you do you will need to notify the local authority of anything they are unaware of that you wish to use in your case. All written evidence should be submitted at least ten days before the hearing. The local authority, too, has to submit any written evidence at least ten days before the hearing.
You will be given the reason for the local authority decision, any papers to be considered by the Committee and details of the procedure to be followed.
During the Hearing:
Both parties should enter and leave together. Introductions should be made.
a. The local authority's case is presented first.
b. Parents may ask questions of the officer presenting the local authority's case.
c. The Committee may ask questions of the officer presenting the case.
The parents present their case and the local authority officer of the Committee may ask questions. If your case has already been presented in writing, you need not add any more to it on the day if you wish.
a. The local authority officer sums up for the local authority.
b. The parents sum up their case.
c. Both parties leave to allow the Committee to reach a decision.
d. Parents will be advised of how they will be told of the decision. The Committee must give their decision and reasons for it in writing within 14 days of the end of the hearing.
Powers of Appeal Committee (placing requests)
The Appeal Committee may:
1. uphold the decision of the authority; or
2. overrule the decision of the authority, upholding your appeal. NB - if the Committee has granted a place in a special school AND the authority have decided not to open a Record of Needs, the Committee can require a local authority to reconsider their decision not to Record the child.
In making a decision the Committee may ask the Scottish Ministers for their views.
Appeals to the Sheriff Court
If the Appeal Committee upholds the decision of the local authority, you do, in certain circumstances, have a further right of appeal to the Sheriff Court. To do this, a 'summary application' is made to the Sheriff who covers the area in which the relevant school is located. Contact the Sheriff Clerk after receiving the decision from the Appeal Committee and ask for the appropriate form on which to make an appeal. Again, appeals should be submitted within
28 days of hearing the Committee's decision. The Sheriff will decide if there are good reasons to hear the appeal before going ahead. The appeal should be held within 28 days of receiving your summary application.
You will be required to pay a court fee. You may wish to seek legal advice and assistance or legal aid.
The Sheriff will only uphold the decision of the local authority if he is satisfied that they are within their rights to do so. In all other situations, the appeal will be granted.
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