States of Jersey Complaints Board: findings – complaint against a decision of the Minister for Education, Sport and Culture.

STATES OF JERSEY

STATES OF JERSEY COMPLAINTS BOARD: FINDINGS –

COMPLAINT AGAINST A DECISION OF THE MINISTER FOR EDUCATION, SPORT AND CULTURE

Presented to the States on 13th August 2012 by the Privileges and Procedures Committee

STATES GREFFE

2012   Price code: B  R.102

REPORT

Foreword

In accordance with Article 9(9) of the Administrative Decisions (Review) (Jersey) Law 1982,  the  Privileges  and  Procedures  Committee  presents  the  findings  of  the Complaints Board constituted under the above Law to consider a complaint against the Minister for Education, Sport and Culture regarding the transfer of a child to Haute Vallée School rather than the preferred parental option of Les Quennevais School.

Connétable A.S. Crowcroft of St. Helier , Chairman, Privileges and Procedures Committee.

STATES OF JERSEY COMPLAINTS BOARD 26th July 2012

Findings of the Complaints Board constituted under

the Administrative Decisions (Review) (Jersey) Law 1982

to consider a complaint by Mr. and Mrs. B.

against a decision of the Minister for Education, Sport and Culture to transfer their son to Haute Vallée School rather than the preferred parental option of Les Quennevais School

1. Present – Board Members

Advocate R. Renouf , Chairman Mr. F. Dearie

Mr. R. Bonney

Complainant

Mr. and Mrs. B. On behalf of the Minister

Mr J. Harris , Assistant Director, Policy and Planning Mr. J. Westwater, Head of Planning and Projects Mr. P. Horsfall, Education, Sport and Culture

States Greffe

Mrs. L. Hart , Assistant Greffier of the States In attendance as observers

Mr. P.D. McGrath – new Panel member Mr. G. Marett – new Panel member

The hearing was held in private at 3.30 p.m. on 26th July 2012 in Le Capelain Room, States Building.

2. Summary of the dispute

2.1  The  Board  was  convened  to  hear  a  complaint  by  Mr.  and  Mrs. B  (the complainants) against a decision of the Minister for Education, Sport and Culture to transfer their son to Haute Vallée School rather than the preferred parental option of Les Quennevais School.

3. Summary of the Complainants' case

1. The Chairman formally welcomed both parties to the meeting and outlined the terms of Article 9 of the Administrative Decisions (Review) (Jersey) Law 1982, against which the complaint would be considered. He advised that, having  reviewed  the  summary  of  the  complaint,  the  Board  needed  to be apprised of the details of the case, in order that it could consider the matter fully.
2. Mr. B advised the Board that he and his family had moved to the Island in October 2008. This had proven quite stressful for his then 8 year-old son J, who had been very unsettled at his new school, La Moye. It had taken a considerable time for the child to establish secure friendships, which it was acknowledged were essential for any child's learning and development. Mr. B wished to emphasize from the outset that the family were concerned about the potential negative impact of the secondary transfer on J. His established circle of friends were all moving to Les Quennevais and he did not know anyone at Haute Vallée and would be faced with the same situation he had struggled through when he first arrived in Jersey.
3. The complainants  did  not  have  an  issue  with  the  quality  of  educational provision at Haute Vallée, which they were certain was of equivalent standard to Les Quennevais, but they wished to avoid a repetition of the difficulties that J had faced in 2008 – 2009. They wanted him to attend the same secondary school  as  all  his  established  group  of  friends  to ease  the  transition  to secondary school. Mr. B advised that he and his wife had been uncomfortable with the way in which the Appeals Panel meeting had been conducted. They considered it strange that the meeting was chaired by Deputy R.G. Bryans of St. Helier , former Chair of the Board of Governors of Haute Vallée School; and they alleged that reference was made to their j' category status. Mrs. B interjected that the Panel had asked why the family had moved out of the catchment area for Les Quennevais School, and when she had explained that they had been renting as j' category residents, she claimed that one of the Panel had said that it therefore wouldn't matter' which school J went to, as it would not be for the long term. Mr. B advised that they had not seen the relevance  of  their  residential  status  to their  appeal  and  considered  the reference made to it to have been inappropriate.
4. Mr. B highlighted the 2 letters sent by J's class teacher and the Headteacher of La Moye School in support of the appeal. Both teaching professionals had acknowledged the importance of J remaining with his secure circle of friends and recommended that it would not be in his best interests to move to a new school without this cohort.
5. Mr. B explained that when the family had moved out of the catchment area they had not intended to circumvent the system – they had been unaware that the change of address would impact upon J's place at Les Quennevais as they believed that, as he attended a feeder primary, his place at that school was secure. Mr. B added that the family had been honest with the Department, and it had been an oversight that La Moye had not been informed of the family's change of address. Mr. B emphasized that the main thrust of their complaint was that they wished to minimise the impact of the transition to secondary

school upon J and to avoid a resurgence of the behavioural issues which they had encountered when he last moved school. The family had not anticipated J's vulnerability when they moved to Jersey, and La Moye had provided a great deal of support during this period. J had not been assessed as having special educational needs, but there had been behavioural problems and his attainments  levels  had  dropped  significantly.  La Moye,  over  a  period  of months, had addressed the difficulties and turned the situation around, and J had  made  long-term  friends  and  his  confidence  had  grown.  The  family feared that moving to a school where he was isolated and knew no-one would impact upon his confidence, and his frustration would be manifested in a downturn in behaviour which would impact negatively on his ability to learn.

6. It was noted that the Department had adopted a Policy whereby appeals were based upon 6 key criteria in order of importance. The complainants considered that J fitted criteria 3 (attending a feeder school) and 6 (supported by a good educational reason for attending a non-catchment school). J's middle sister had attended Les Quennevais (criteria 2 – siblings in years 7 – 10) but was now at Hautlieu, and his eldest sister lived at La Moye. The family were currently leasing a property on Victoria Avenue for a year, having been unable to find a suitable property in St. Brelade , but they had every intention of returning to St. Brelade as all J's after-school activities were based there and so were all his friends.
7. Mr. B stated that he and his wife had been disappointed that the focus of the Appeals Panel meeting had been on the strengths of Haute Vallée, rather than J's situation. The complainants had found this emphasis, made mainly by the Chairman of that meeting, Deputy R.G. Bryans of St. Helier , to be somewhat perplexing, as they had already advised the Panel that the school was not the issue. The complainants explained that, as they were relatively new to the Island they had no knowledge of the school or its reputation, in fact they hadn't  even  known  where  it was  situated.  Mrs. B  had  regarded   Deputy Bryan's repeated references to the fact that that his children had attended the school as irrelevant. It was only after she had made her complaint to the Administrative  Appeals  Board  that  someone  had  told  her  of  his  former position as a Governor of the school.
8. The Board questioned the travel arrangements for J's attendance at secondary school, and was advised that he would probably catch the bus and be collected by his eldest sister if there were after-school activities. The Board challenged the notion of J's perceived vulnerability given that he was deemed sufficiently confident to catch a bus alone. Mr. B countered that the family had considered J to be a robust child and had not anticipated any problems when they moved to Jersey. He was a spirited and popular boy and they had assumed that the transition would be fine. However, J had proven to be more sensitive than they had expected and the move had been quite traumatic.
9. Mrs. B advised that since he had been told about the change to his secondary school, J had not been himself' and clearly the issue was on his mind all the time. Mrs. B advised that he had become so overwrought before the transition days that he had suffered an asthma attack in the morning of the first day. He had attended the Thursday afternoon and all day Friday, but had returned home very upset and anxious, maintaining that everyone had been strangers

and he had recognised no-one. The complainants expressed reservations about the claims made by the transition teacher from Haute Vallée that J's attitude towards the forthcoming move was very positive' as they suspected that he had merely told her what she had wanted to hear'.

10. The complainants re-iterated that when they had first arrived in Jersey and J had started at La Moye knowing no-one, his behaviour had been disruptive, both at school and at home, and it had taken many months for him to make friends and feel secure. The family were petrified that these difficulties would resurface  at  Haute  Vallée  and  would  have  a  detrimental  effect  on  his educational experience.

4. Summary of the Minister's case

1. The Board heard from Mr. J. Westwater, Head of Policy and Planning, who had attended the Appeals Panel meeting in an advisory capacity, but had not been  part of the  decision-making  process.  He  advised  the  Board  that the Department  had  never  suspected  that  the  complainants  had  tried  to intentionally circumvent the system, and he confirmed that their failure to inform the primary school of their change of address was not a pertinent issue. Mr. Westwater explained the secondary school allocation process, and advised that the Educational Support Team looked at any sensitive cases and made recommendations to the Department, which were usually accepted and acted upon.  In  all  other  cases  the  decision  was  based  upon  residency  in the catchment area. Parents were able to indicate a preferred alternative and such requests  were  gauged  against  the  aforementioned  6 criteria,  in order  of importance, until the school reached its maximum capacity. Everyone denied their first choice was offered the chance to appeal. In many instances the schools  were  filled  just  by  students  who  met  criteria  1  and  2  (living  in catchment area/having a statement of special educational needs and having siblings in years 7 – 10). There had been 62 requests for out-of-catchment places for the 4 Island secondary schools, and 40 had been allocated places at their chosen school, having met criteria 1 and 2. The remaining 22 were offered meetings with the Appeals Panel and 15 had accepted this offer. Of these  15,  6  had  claimed  that  the  children  concerned  were  sensitive,  had emotional difficulties and were fragile, and 6 appeals had been supported by letters from their respective primary schools, although Mr. Westwater advised that  only  one  such  letter  had  been  submitted  by  the  Headteacher  on  an unsolicited basis.
2. In the case of Les Quennevais there had been 8 appeals, but only one had been successful  following  the  presentation  of  compelling  medical  evidence. Mr. J. Harris , Assistant Director, Policy and Planning, added that the child concerned in that case had a physical disability for which Les Quennevais was deemed better able to cater. The Board questioned why this had not been highlighted by the Educational Support Team and was advised that the team had not been involved with the child.

3. Mr. Westwater confirmed that the Appeals Panel had asked the complainants about their employment situation, but he maintained that at no point during the proceedings had any comments been made about their j' category status. Mr. Harris also refuted the allegation that such comments had been made by any member of the Panel. The Board asked whether minutes had been taken at the Appeals Panel meeting and was advised that Mr. Westwater had compiled notes on a summary sheet, but there was no other record of the decision- making process. The Board requested that a copy of this summary sheet be submitted by the Department for its consideration. It was confirmed that all of the  appeals  for  Les Quennevais  School  had  been  considered  at  the  same session. Mr. Westwater advised that the Panel had the authority to increase the maximum capacity at a school if they agreed that an appeal should be upheld. Mr. Harris advised that the Panel was always mindful of the wishes of parents coupled  with  the  availability  of  resources.  In  exceptional  circumstances schools made extra provisions to accommodate additional students. It was noted  that  out  of  the  40 children  initially  allocated  places  out  of  their catchment  areas,  only  4  had  been  for  Les Quennevais,  as  the  school  had reached its capacity. All of the 8 appeals for Les Quennevais met criteria 3 or below, and the Panel had considered J's appeal to be borderline, with no evidence of any serious educational need.
4. The Board questioned how the Department's policy worked in accordance with Article 15 of the Education (Jersey) Law 1999, which stated –

15  Parental right to choose school

1. The parent of a child aged below or of compulsory school age shall have the right to express a preference as to the provided school at which the parent wishes education to be provided for his or her child in the exercise of the Minister's functions.
2. Subject  to paragraph (3),  the  Minister  shall  comply  with  any preference expressed pursuant to paragraph (1).
3. The Minister shall not be required to comply with a preference if to do so would prejudice the provision of efficient education or the efficient use of resources.

5. The Board  was  unsure  how  the  parental  right  to  choose  tallied  with paragraph (3), and to what extent the Minister could show flexibility if there was  an  overriding  resource  implication.  Mr. Westwater  advised  that  each secondary school operated on a staffing ratio of 14:1, and therefore additional students created an imbalance in terms of funding and staffing, at both the school which was over capacity and the one which would be under-utilised. In terms of cost, each student carried £4,500-worth of funding which would have to be re-routed from Haute Vallée to Les Quennevais; and that would be inefficient when the latter school was already fully funded. Mr. Harris stated that the physical capacity for Les Quennevais was 750 and it was difficult for the school to cater for more than that number. He also opined that allowing in just one child over that figure would set a precedent. Mrs. B countered that she was aware of 2 children who had decided not to accept their places at Les Quennevais and she believed this demonstrated that there were still places available. The Board questioned whether a place could have been offered toJ,

regardless of the capacity issue, had the Appeals Panel considered it justified. Mr. Westwater confirmed that this was correct. It was further noted that if a family moved house the day after the start of Year 7, the child's place at that school would be unaffected. Students who had unsuccessfully applied to an out-of-catchment school could join a waiting list, providing they lived in the catchment  area,  and  priority  for  any  place  which  subsequently  became available would be given to students recommended by the Special Needs team, failing which it would be in order of date of application to the list.

6. The Board sought some background to the current policy and how it was applied  in relation  to Article 15  of  the  Education  (Jersey)  Law  1999. Mr. Westwater affirmed that the policy had been in place since before he had joined the Department in 2000 and, whilst it had been updated over the years, there had been no major amendment to the Law. The Department's primary aim was to ensure that the best interests of the child were met. The priority order of the criteria had been set to place residency in the catchment or special needs referrals as paramount.
7. Siblings at the school took greater priority over primary colleagues as it was considered  this  benefited  parents,  avoiding  having  to travel  to different locations  to drop  off  children,  whilst  also  acknowledging  that  siblings provided support to the Year 7 student as part of the family group. The Board questioned  whether  any  consideration  had  been  given  to revising  the allocations policy and moving away from a geographical system, and was advised that the concept of feeder schools becoming the determining factor had been discussed, but no decision had been made as yet. The Department therefore had to adhere to the existing policy in order to guide decisions and ensure efficiency. Guidance was available on the Department's website, which included a digital map showing the catchment boundaries, and advice was given to parents over the phone.
8. The Board  questioned  how  much  importance  had  been  attached  to the 2 supporting letters which the complainants had submitted in connection with their appeal. Mr. Westwater responded that the case presented had not been considered strong. The Board asked whether educational professionals were invited to Appeal Panel meetings to support parents' applications, and it was noted that there was currently no precedent for this. Mr. Harris stipulated that the Panel had not considered J's case to be exceptional and he opined that many  children  experienced  a  degree  of  apprehension  before  moving  to secondary school.
9. The Board was apprised of the good educational reasons' which the Appeals Panel  would  normally  consider  sufficiently  compelling  to qualify  under criteria 6. These included family breakdown and referrals from educational psychologists. J had not been referred to the educational psychology team during his unsettled period at La Moye. Mr. Harris reiterated that all of the secondary schools had equivalent resources, including support mechanisms for induction and the first year of transition from primary. It was the Appeals Panel's view that all children were somewhat daunted by the prospective move to a new school, but J would make new friends at Haute Vallée and would eventually settle in, as he had done at La Moye. Mr. B reminded the

meeting that it had taken almost 18 months for J to settle last time, and the family did not wish to risk repeating this stressful period.

10. The Board sought clarification as to why the views of the Headteacher and class teacher had been disregarded, when they knew the child best, and greater emphasis had been placed on geographical concerns. Mrs. B affirmed that J's Headteacher had written the letter of her own volition as she believed J was vulnerable and that it would be better that he remained with his cohort from La Moye.
11. Mr. Harris confirmed that the views of teaching professionals were taken into consideration,  but  in many  instances  they  did  not  provide  sufficient justification to persuade the Panel. The Department had to ensure that school resources  were  efficiently  administered  and  Mr. Westwater  reiterated  that there was provision at Haute Vallée to manage' any potential problems which J might experience. Mr. B replied that he did not wish for his son to be managed' – he wanted to avoid the situation completely.
12. Mr. Harris wished to stress that the comments attributed to Deputy Bryans in respect of Haute Vallée had been made in order to provide assurance to the complainants  that  the  school  could  meet  J's  needs.   Deputy  Bryans  had resigned as Chair of the Board of Governors of Haute Vallée when he took up his post as Assistant Minister for Education, Sport and Culture, and it was not considered that his former connection with the school affected his judgement when  presiding  at  Appeals  Panel  meetings.  It  was  accepted  that   Deputy Bryans had mentioned the fact that his own children had attended the school during the Appeals Panel meeting, but Mr. Westwater contended that he was simply assuring the complainants that the provision was of a high standard at that school. Mr. Harris claimed that Deputy Bryans had advised applicants of his former status as Chair of the Board of Governors of Haute Vallée School when applicable, as he was aware of the need to assure parents that their appeal was being heard by an impartial Panel. Mrs. B advised that this had not been the case at their meeting, and she reiterated that the Deputy 's former position had only been made known to her some time after the Appeals Panel meeting. Mr. B stated that the Department had acknowledged that the efficient use of resources was a pivotal part of the decision-making process, and he had felt during the Appeals meeting that the Panel had been promoting Haute Vallée,  rather  than  considering  the  concerns  expressed  by  J's  family  and teachers. The Board questioned why, if it was recognised that there could be a perceived conflict, Deputy Bryans could not have been replaced by the other Assistant Minister for Education, Sport and Culture or, indeed, the Minister himself, in order to assuage any doubts of the Panel's impartiality. Mr. Harris refuted the implication that Deputy Bryans had been conflicted and stated that he would have been equally enthusiastic about Le Rocquier or Grainville had they  been  the  school  to which  J  had  been  allocated.  He  opined  that  the Department tried to run the system in the best way possible; to act fairly and appropriately, but it was an emotive issue and difficult to please everyone.
13. Mr. B requested that the guidance in relation to the criteria for appeal be more clearly defined to highlight the priority order. He also asked that in future there be impartial minutes taken at Appeals Panel meetings to provide an independent record of the decision process.

14. The Chairman thanked both parties for attending the meeting and advised that it was a complex case which would require detailed thought. The parties then withdrew from the meeting to enable the Board to consider its findings.

5. The Board's findings

5.1.  The  Board  considered  the  complaint  in  relation  to  the  complainants' contention that the decision made by the Minister could be criticised on any of the following grounds outlined in Article 9 of the Administrative Decisions (Review) (Jersey) Law 1982, as having been –

1. contrary to law;
2. unjust, oppressive or improperly discriminatory, or was in accordance with a provision of any enactment or practice which is or might be unjust, oppressive or improperly discriminatory;
3. based wholly or partly on a mistake of law or fact;
4. could not have been made by a reasonable body of persons after proper consideration of all the facts; or,
5. contrary to the generally accepted principles of natural justice.

2. The Board found that there had been a potential conflict of interest, in that, as a former Chair of the Board of Governors of Haute Vallée School, Deputy Bryans could have allowed his personal opinion of that school to influence the outcome of the meeting. Despite the Department's assertion that appellants had generally been advised of his former position at the beginning of each appeal, the complainants did not seem to have been aware until after the event. The Board was of the opinion that, even if Deputy Bryans' connection with Haute Vallée was mentioned at the start of the meeting, it would have been ill- timed at that stage of the proceedings. The Board considered that the Appeals Panel should have recognised the significance of the Chairman's potential conflict and advised the complainants in advance of the meeting in order that the implications of his involvement could be fully absorbed and an alternative Chairperson found if requested. The Board expressed the view that it would have been difficult for parents, faced with a Panel of persons experienced in Departmental procedures and anxious to achieve certainty for their child, to challenge  the  constitution  of  that  Panel.  As  the  complainants'  Appeals meeting progressed, the Chairman demonstrated a lack of impartiality through his  promotion  of  Haute  Vallée,  to the  extent  that  the  complainants  had considered that the focus of the meeting had been hijacked' as a showcase for that school rather than the needs of their son. Having the former Chair of the Board  of  Governors  on  the  Panel,  irrespective  of  the  efforts  to maintain impartiality, created a perception of bias and it could therefore be argued that paragraph (b)  or  indeed  (e)  of  Article 9  of  the  Administrative  Decisions (Review) (Jersey) Law 1982, could be applied.

3. It appeared that greater importance was attached to the views of the Special Needs Team rather than the submissions made by the teaching professionals who knew the child best. The fact that J had not been statemented or referred to an  educational  psychologist  had  appeared  to detract  from  the  actual difficulties  he  had  experienced  integrating  at  La Moye.  The  Board  was astonished that the views of those who dealt with J on a daily basis had been disregarded ostensibly. The Board did not consider that the Department had given  due  and  proper  consideration  to the  supporting  letters  from  the Headteacher and class teacher at La Moye, both of which stated that the best interests of J would be served by allowing him to attend Les Quennevais. The Board  considered  that  these  statements  should  have  been  pursued  more vigorously by the Department before a final decision was made, particularly when the Department had affirmed that its primary aim was to ensure that the best interests of the child were met. The Board acknowledged that there was an  onus  on  parents  bringing  appeals  to ensure  that  sufficient  material  to support their claim was placed before the Panel. However, the Board was mindful that parents were not necessarily used to the formalities involved and in such cases, where there was a genuine discussion to be had in relation to the best interests of a child, the Department should endeavour to involve everyone concerned,  including  the  child's  Headteacher  and  class  teacher.  It  could therefore  be  argued  that  paragraph (d)  of  Article 9  of  the  Administrative Decisions (Review) (Jersey) Law 1982, could be applied.
4. The Board was mindful that Article 15 of the Education (Jersey) Law 1999 enabled the capacity of a school to be exceeded if a compelling case had been made, provided that this did not prejudice the provision of efficient education or the efficient use of resources'. The Board recognised that the efficient provision of education and use of resources could be called into question if, ultimately, J faced prolonged difficulties settling into the new school, a drop in his attainment levels and his behaviour impacted negatively upon other children and disrupted the learning environment.
5. The Board  expressed  concern  that  the  current  policy,  which  deferred  to resources and funding as an overriding decisive factor, might not allow for proper  consideration  of  the  best  interests  of  individual  children,  as  the Department could be predisposed to reject any applications which resulted in an imbalance of resources in one school over another.
6. The Board considered that the Appeals Panel meeting had not been properly constituted  due  to  the  Chairman's  potential  conflict  of  interest.  It  also considered that insufficient importance had been placed upon the letters sent by  teaching  professionals  in support  of  the  case.  The complainants  were entitled to an impartially constituted Appeals Panel meeting and this had not been provided. Furthermore, the current policy placed a greater significance on resource efficiencies rather than parental choice, which implied that any appeal would be thwarted once a school had reached capacity. In view of the fact that the Appeals Panel meeting was a quasi-judicial process, the Board was of opinion that the summary notes which were produced did not provide a sufficiently robust record of the decision-making process, and recommended that in future, full and impartial minutes of the meetings should be prepared.

7. The Board, having carefully reviewed the decision made by the Minister for Education, Sport and Culture, concluded, in accordance with Article 9(2)(b) and (e) of the Administrative Decisions (Review) (Jersey) Law 1982, that the failure of the Minister to provide an impartial hearing to the complainants was unjust and contrary to the generally accepted principles of natural justice. The Board also concluded that the failure to give due and proper consideration to J's best interests, including the supporting views of his headteacher and class teacher, gave rise to a risk that the decision could not have been made by a reasonable body of persons after proper consideration of the facts, contrary to Article 9(2)(d) of the Law.

8. The Board acknowledges and appreciates the difficulties faced by the Minister and the Department in ensuring an efficient education provision and use of resources  whilst  balancing  the  wishes  of  parents.  However,  the  Board considers  that  the  policy  applied  to the  allocation  of  out-of-catchment secondary places should primarily uphold the principle of parental choice enshrined in the Education (Jersey) Law 1999, particularly where that choice had been made in the best interests of the child.

9. The Board, mindful that the new school year is imminent, invites the Minister to reconsider the complainants' application and to liaise with the Department to review more fully what is in J's best interests, giving due and proper consideration to the views expressed within the documents submitted by his current school and noting the complainants' expressed intention to move back within the catchment area within the year at termination of their present lease. The Board requests that the Minister responds within a period of 3 weeks from the date of this report, outlining the steps taken to reconsider the matter and the result of that reconsideration.

Signed and dated by:  .....................................................................................

Advocate R. Renouf , Chairman

 .....................................................................................

Mr. F. Dearie

 .....................................................................................

Mr. R. Bonney