Complaints, and how to deal with them, can be a tricky area for schools to navigate and is something we are increasingly being asked to advise on. However, if you get the right complaints procedure in place and follow it closely, the process will be much easier.
The legal framework
The starting point is the legal framework. Maintained schools need to refer to the Education Act 2002, which states (section 29(1)) they must have and publish a complaints procedure. Independent schools and academies should refer to the Education (Independent School Standards) Regulations 2014, which states they must have a procedure in place and sets out requirements for this. The Department for Education (DfE) strongly recommends that it’s published.
DfE has issued useful guidance on how to deal with complaints, for all different types of schools. This guidance is written in plain English and is easily accessible. We would always recommend referring to this guidance (as well as your procedure) in the first instance or if you are unsure on how to deal with a particular aspect of a complaint.
The complaints procedure
DfE distinguishes between a concern (an expression of worry or doubt over an issue for which reassurances are sought) and a complaint (an expression or statement of dissatisfaction about actions taken or lack of action).
It is always recommended that you try and deal with any complaint informally. However, if this is not possible then you’ll need to follow your formal complaints procedure.
A well-drafted, non-adversarial, complaints procedure can support the school’s handling of the matter following a complaint being made.
A complaint can be raised in any way. Certain complaints will fall outside of the procedure and would be dealt with under separate policies such as whistleblowing or admissions or exclusions and the procedure should make this clear. In maintained schools anyone can complain under the complaints procedure, whist in an independent school or academy the procedure only needs to cover parents or carers of pupils at the school. That said, academies are still expected to deal with complaints from others respectfully and expediently. If third parties are using your premises/facilities make sure they have their own complaints procedure in place if they offer community facilities or services.
Your complaints procedure should be clear, fairly short and written in plain English, so that when it needs to be used there is no confusion on how it should be followed. There’s no need for the policy to be overly elaborate. If there is a need to deviate from the policy for any reason then this should be explained in correspondence and where possible the agreement of the complainant obtained. This is often the case in relation to timescales as the matter should be dealt with quickly and efficiently.
Confidentiality is extremely important and should always be considered when drafting your policy. Where a complaint relates to a member of staff, for example, this could lead to disciplinary action. If this is the case then this should not be disclosed to the complainant and your policy should make it clear that any information which is part of an internal (confidential) disciplinary process, will not be disclosed to the complainant during the complaints procedure. In this situation, the employer must be mindful of their duty of confidentiality and care as an employer and the relationship of trust and confidence with the employee. This is often a careful balancing act.
It is also worth limiting the information disclosed to the board or governing body in order that as many people as possible remain impartial in case they are needed to form a panel to hear the complaint later in the process. As the process will require an investigation stage which is full and fair and later an appeal to a panel it is worth considering whether training on the various aspects of the process for trustees/governors would be beneficial.
There could be instances where a complaint is made against a member of staff, a governor or trustee, the headteacher or the entire governing body, making it more challenging to know who would hear the complaint or appeal. The process in each case should be set out in the complaints procedure.
Lastly, it is key when drafting and following the complaints procedure to take a common-sense approach. You need to ask the complainant at the earliest possible stage, how they would like their complaint to be resolved. This helps you save time, gauge emotion early, create meaningful dialogue, and find alternatives from the outset.
The guidance is clear that the complainant must have the opportunity to complete the complaints procedure in full.
When a school needs to deal with a particularly tricky complaint, their complaints procedure comes under increased scrutiny and will be challenged and tested by the complainant. In these cases, it is important to deal with matters sympathetically yet robustly.
Schools must be especially careful when the person who is bringing the complaint has a protected characteristic in respect of which adjustments to the procedure may need to be made. Similarly, if the subject matter of the complaint includes an issue of potential discrimination you may want to take legal advice as these complainants may have additional rights to bring claims.
The serial complaint or unreasonable complainant
Anyone can raise a new complaint at any time and the school must act reasonably and deal with the issue. However, if the same issue is being raised and the procedure has already been exhausted the school may be able to stop responding.
The DfE guidance is very clear that the application of a ‘serial or persistent’ marking should be against the subject of the complaint itself rather than the complainant. The guidance states that schools are only able to stop responding to a serial complaint when the person is making the same point repeatedly, and the school has already taken every reasonable step to address the concerns and has given a clear statement of its position and its options. The case to stop responding is stronger where correspondence is aggressive or abusive, insulting, or intended to cause disruption.
A school can’t stop responding just because they believe the complaint is vexatious. The DfE’s guidance around this draws a very high threshold using language such as obsessive, unrealistic, harassing, prolific or unmeritorious and as such, each case should be reviewed on a case by case basis before considering the next steps. There are tools available to schools such as limiting points of contact and banning individuals from site and more information is available on the DfE website.
If a school suspects that the person behind a serial complaint has mental health issues which are causing their behaviour there could be a potential discrimination risk, and advice should be sought.
Parents using schools in matrimonial disputes
It’s common to see parents who are dealing with a matrimonial issue, using the school as a forum to deal with certain issues. Complaints can easily arise when emotions are high. The school should try to avoid being drawn into such issues and refer to any relevant court orders. If in doubt seek advice.
It is not uncommon for schools to receive complaints on the same subject from a number of people not connected to the school. DfE suggests that a complaints procedure should address this, Options can include template responses to all complainants or a single response on the school website.
The Complaints Process
The first formal stage will usually involve the school appointing an investigator to carry out a full and fair investigation. They’ll need to quickly understand the scope of the investigation and decide if a face-to-face meeting is required with the complainant at an early stage.
It’s key to keep a written record of all meetings and interviews carried out during the investigation stage and throughout the process. A formal investigation report collating this information is useful. It’s always advisable to keep a record even when you’ve failed to contact the complainant as it shows your proactive approach if a regulatory body was to review the complaints process.
Formal written response
Following the investigatory stage, a formal written response will need to be issued detailing the actions taken to investigate, as well as a full explanation of the decision and the reasons behind it. The details of any actions taken to resolve the complaint need to be clearly set out and the complainant provided the opportunity to appeal the decision. The minutes of the meeting will need to be provided and redacted as appropriate.
Think carefully about the language used so as not to unnecessarily antagonise the complainant.
Independent Panel / Meeting
All procedures should then offer an appeal stage.
Maintained schools are required to have a panel of three governors who are independent of the complaint. In contrast, independent schools and academies must appoint a panel of three board members, one of whom must be entirely independent of not just the complaint, but the organisation itself. This is to ensure external scrutiny and challenge. The complainant can request a different panel if they feel there is a conflict of interest or risk of bias.
The complainant should be allowed a companion at the meeting; however, DfE is clear in the guidance that ordinarily neither party should be legally represented. At the meeting, both parties should have the opportunity to state their case to the panel and present evidence.
The aim of the panel is reconciliation and to put right what has gone wrong. The complaints procedure should be clear as to their remit.
The committee can uphold the complaint in whole or in part or dismiss the complaint in whole or in part.
It’s important that the outcome is recorded in writing and issued to the complainant and the school. It should set out the escalation options and include a copy of the minutes. Records must be kept of the complaint including the issues raised, findings and recommendations, the correspondence, minutes and actions taken as a result.
Complaints to third parties
If a complainant remains dissatisfied, they have the right to complain. For a maintained school a complaint can be made to the DfE and for academy trusts to the ESFA. Save for limited circumstances they can only do this once the internal process has been completed. The Dfe and ESFA cannot overturn the decision but will check that the legal framework and the school’s procedure has been complied with hence the importance of referring to and following your complaints procedure throughout. They may, in the event of a breach recommend improvements, issue a notice to improve or could share details of failings with the local authority, Ofsted or the LADO.
In order to best protect itself, the school should have a clear policy that is compliant with the legal requirements and best practices, should deal with issues quickly and in accordance with the procedure, and should document in contemporaneous correspondence the reasons for any deviation from it.