England and Wales are home to some of the world’s most celebrated independent schools. They provide life-changing opportunities and are seen by many as a passport to success.
Fee-paying schools have distinctive cultures, which may be drawn from hundreds of years of history or illustrious former staff and students.
But when something goes wrong, families can feel very alone. This is particularly so when allegations of misconduct are made against students. Challenging a venerable and well-resourced institution can be daunting. Matters can become emotionally charged. Where the aim is for the child to return to the school, it is especially important to try to maintain good relations no matter how profound the disagreements.
Private schools are not subject to the same supervision and regulation as state schools. This can make it difficult to know where to turn when a student is accused of misconduct or otherwise asked to leave.
There are options, however:
- The Department for Education requires independent schools to meet minimum standards when handling complaints, including recourse to a panel hearing.
- The relationship between the parents and a fee-paying school is governed by contract law, which expressly or impliedly will require the school to act fairly.
- The Equality Act 2010 applies to private schools as well as state schools, and claims can be brought on behalf of children with protected characteristics.
The school’s complaints procedure
Independent schools are required by law to have a published complaints procedure. A school’s complaints procedure can be used to challenge a decision to exclude or otherwise sanction a student.
The complaints procedure will set timescales for complaints to be resolved, and will feature a three-stage process:
- An informal stage where a complaint need not be in writing.
- A formal stage where parents should set out the complaint in writing.
- If parents are not satisfied with their response to the written complaint, a panel hearing.
Schools are required to provide parents with details of their policies on behaviour and exclusions. It should be clear from these policies what the expected standards of behaviour and performance are, and when exclusion or removal from the school will be considered appropriate. Schools are expected to have regard to these policies when dealing with student misconduct and potential exclusions.
It is important to bring complaints promptly, and within any time limits set out in the school’s policy.
Panel hearings
A challenge against a decision to exclude a student will often go straight to stage three of the complaints process i.e. a panel hearing.
A panel hearing is an opportunity for parents to set out their complaint and their arguments as to why the school’s decision should not stand. The panel must include at least one member who is independent from the management and running of the school.
Legal representation
School complaints policies often state that parents cannot be legally represented at a panel hearing. However this is not the end of the story: in the case of AB v University of XYZ [2020] EWHC 2978 (QB) the High Court made clear that where a student faces a very serious allegation, natural justice means they must have an opportunity to be legally represented. As the name of the case indicates, this was a case concerning a university student, however the principles as they apply to independent schools are similar.
Even when a parent does not wish or is not able to bring a legal representative to a panel hearing, legal assistance can be invaluable. A barrister can draft written submissions as well as advising on procedure, case preparation, whether to call any evidence, and general tactics.
Equality Act 2010
Independent schools are subject to the Equality Act 2010. They must not discriminate against any student based on their protected characteristic or on their relationship to another person with a protected characteristic, such as a parent. This applies not only to disabilities but also to race, religion, and other characteristics protected by the Equality Act 2010. An Equality Act 2010 claim can be brought on a freestanding basis or can be relied on in a more general challenge to a school’s decision.
Contract law
A parent who pays fees in exchange for their child’s education is a party to a contract. If a decision to exclude a student is not taken properly, the school is likely to be in breach of contract. The contract itself will form the basis of the challenge, but general principles of natural justice will also apply and may even override the express wording of the contract. Depending on the value, a claim for breach of contract will need to be brought either in the County Court or the High Court.
How can a barrister help?
A barrister can help families to understand their rights and options. It does not have to mean an escalation in tensions. Early legal assistance can help parents achieve a fair and just outcome, and to get their child back into education as soon as possible. To speak to a member of our clerking team, please click here for full details.
Amy Woolfson is a barrister with experience in guiding families through student misconduct allegations, securing excellent results whilst keeping conflict to a minimum. Amy has extensive experience of professional discipline and regulatory cases. She acts for regulators and regulated persons in cases concerning criminal convictions, lack of competence, and misconduct – including serious sexual misconduct.
