The happy medium

As fee-payers, parents are apt to find reasons for complaint, sometimes unreasonably so. That does not mean that schools should not take them seriously, however. John Deakin reports on the potential consequences

Since 2003, Regulation 7 to the Schedule of the Education (Independent School Standards) (England) or (Wales) Regulations 2003 has required independent schools to publish a written complaints procedure in a prescribed format setting out:
• an informal stage;
• a formal stage; and
• hearing of the complaint by a panel.

Regulation 6 requires the school to make available, usually on its website, to parents of pupils and of prospective pupils, a copy of the procedure. The school is also required to make available details of the number of formal complaints received during the preceding academic year and the stage at which they were resolved. Additionally, Standard 5 of the National Minimum Standards for Boarding Schools requires an appropriate policy on responding to complaints from boarders and parents and how they may refer the complaint to Ofsted. A similar provision is also found in the statutory framework for the Early Years Foundation Stage.

The standards set out in the regulations, standards and framework are those against which independent schools are inspected. Most schools are fully aware of their requirements under these regulations. However, for those few that may still be a little uncertain of what is required, the ISI handbook (January 2010 edition) on pages 50 and 51 contains some particularly helpful guidance notes to help schools in meeting the standards.

It is useful to note that ISI, Ofsted and Estyn have been keen to see specific timescales in procedures for dealing with various aspects of a complaint. Schools may still avoid complaints running into holiday periods by making specific reference to “school days” or “working days” in their procedures.

Dealing with complaints
Putting regulatory and compliance issues to one side, a common problem is that of schools failing to recognise when a complaint is made. Neither legislation nor regulations define a complaint and there is little case law that specifically helps with this point. The most succinct definition of complaint is that found in Chambers English Dictionary as follows: “Complaint – an expression of grief or dissatisfaction.”

It is important for schools to recognise this definition. If not expressed in your school’s terms and conditions, there will be implied terms that the educational services contracted for will be delivered:
• with reasonable skill and care;
• to at least the standard required by law; and
• educational services will include a proper handling of complaints.

The majority of parental complaints will begin as informal expressions of dissatisfaction with an aspect of the child’s education or pastoral care. It is therefore important that staff at all levels throughout the school are alive to the school’s policy and procedures for dealing with a complaint. It can be all too easy to consider a parent as “irksome”, “whingeing” or “a pain”.

It is also easy for that parent, if so minded, to push a seemingly trivial complaint through the mandatory informal and formal stages to a panel hearing. The 2003 regulations provide a single criterion for elevating a complaint, namely: “Where parents are not satisfied with the response to the complaint [at the current stage].”

If a member of staff fails to recognise a complaint when made, or the school fails to follow its procedure, it may present the parents with a potential claim for breach of contract. If the alleged breach is of a fundamental term of the contract, it may be open to the parents to consider themselves discharged from their obligations under it. They may also seek to claim damages for any losses resulting directly from the alleged breach.

Growing numbers
Perhaps of greater concern to schools is the steady increase in the number of complaints made to DCSF, ISI, Ofsted or Estyn by parents. Under Part 10 of the Education Act 2002, DCSF has the power to order at any time the inspection of an independent school registered in England or Wales. This power is being exercised in cases where DCSF consider that the complaint raises issues of potential non-compliance with standards.

Schools are being visited by inspectors, often without notice, the inspectors have a statutory right to enter the school and the right to inspect or take copies of records or documents required for that inspection. It is an offence, punishable by a fine, to intentionally obstruct the inspectors.

These inspection visits are focused on documentation relevant to the complaint. For example, a parental complaint to one of the regulating authorities that a school has not or is not dealing effectively with a complaint of bullying may result in the inspection of the school’s anti-bullying policy, behaviour and discipline policy, child protection policy and safeguarding procedures, including perhaps the single centralised register of staff appointments, appropriate use of ICT policy, the complaints procedure itself and any record of the number of formal complaints during the current and preceding academic year.

On conclusion of the inspection, an advice note is prepared for DCSF. If the advice note highlights areas of non-compliance with standards, DCSF has the power to issue the school with a notice of non-compliance.

Any school that has received such a notice will be aware that it is couched in stark terms, often requiring the school to draw up an action plan for remedying the non-compliance within a tight timescale. The action plan may be amended and must be approved by DCSF, again within a relatively short timescale. It is usually stated on the notice of non-compliance that a failure to produce an action plan or a failure to meet the standards on re-inspection may result in the school’s removal from the register of independent schools. It is a criminal offence for a proprietor to operate an unregistered independent school. If found guilty, that person may be punished by a fine or by a term of imprisonment of up to six months. Re-inspection is likely to focus on the school’s implementation of its action plan. However, where there are numerous areas of non-compliance, the re-inspection may not be different from a full inspection of the school.

Practical steps
To minimise the risk of your school finding itself in a potential “doomsday scenario” or to avoid a parental complaint escalating into something much larger, there are some straightforward practical steps schools can take:
• ensure that the school has a compliant and up-to-date policy and procedures for handling complaints and that these are consistent with its terms and conditions and other policy documents;
• make sure that all staff are able to identify a complaint and are aware of the correct procedures to follow on receipt of a complaint;
• treat all complaints with due respect. Often parents just need to feel that they are being heard;
• if the complaint arises from a dispute over fees, consider whether the pursuit of those fees should be suspended until the conclusion of the complaints procedure; and
• provide the parents with the opportunity to exhaust the school’s complaints procedure (unless their behaviour becomes unreasonable to a point at which the procedure cannot properly continue).

Finally, schools should consider taking proper advice at the earliest opportunity to avoid the possibility of starting a complaints procedure on the wrong foot. Above all, in handling parental concerns or complaints, schools should be clear, fair, thorough and be seen to be so.

John Deakin is an associate at Veale Wasbrough Vizards. John can be contacted at jdeakin@vwv.co.uk or on 0117 3145335. 

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