Your Head has received an email from a disgruntled parent. He is unhappy about disruption to his daughter's maths lessons following staff absence and what they consider to be inadequate cover arrangements in her GCSE year. They are demanding a refund of fees.
Has the school's legal position changed since the Consumer Rights Act 2015 was introduced last October?
Independent schools in England are required to comply with the complaints handling requirements contained in Part 7 (standard 33) of the Schedule to the Education (Independent Schools Standards) (England) Regulations 2014. Failure to do so may result in a finding of non-compliance on inspection and expose a school to the risk of a damages claim for breach of contract. Schools must have a written Complaints Policy with three stages: informal, formal and independent review.
The regulatory standard does not distinguish between "concerns" and "complaints" and there was some confusion about what constituted a complaint triggering the operation of the school's policy. However this has now been clarified by the Independent Schools Inspectorate (ISI) which states:
"Any matter about which a parent of a pupil is unhappy and seeks action by the school is now a complaint, and in the scope of the procedure, whatever the school labels it as."
N.B: A parent is not defined and the entitlement to access the procedure should not therefore be limited to contracting parties.
There was also some uncertainty about the extent to which prospective parents (ie pre-contract) and parents of former pupils are entitled to access a school's internal procedure. Complaints procedures do not apply to parents of prospective pupils unless the policy categorically says that it does. ISI have now made it clear (in the 2016 handbook) that they consider such procedures apply to past pupils only "if the complaint was initially raised when the pupil was still registered".
Options for challenge
Parents have always had a range of options open to them if they are unhappy with the service provided, all of which are likely to be time consuming and have significant potential cost implications for the school.
Invoking the school's complaints procedure, or inviting the school to investigate the issue under this procedure, even if it does not strictly apply
Seeking further information about the issue, whether informally, by disclosure in litigation or by way of subject access request under the DPA
Commencing legal action to require a court or tribunal to investigate the issue, determine whether there has been a breach and if so order appropriate remedies (which may include damages)
Sharing their view of the issue with others, whether connected with the school or not, in person, print or by social media
Encouraging external scrutiny by relevant statutory agencies and regulators.
However, additional remedies have now been introduced for the benefit of consumers.
Most parental concerns, whether phrased as complaints or disputes, stand the best chance of resolution if they are acknowledged quickly and courteously, lead to information-gathering and an investigation of some sort to identify the merits of the case, followed by a conclusion which is communicated with appropriate redress
The Consumer Rights Act 2015
Before the CRA, a consumer's principal legal remedy lay in breach of contract. Breach of contract gave rise to a possible claim for damages (usually for any financial loss consequent upon the breach). A "repudiatory" breach also entitled an innocent party to treat themselves as discharged from further obligations under the contract (for example to provide a term's notice of withdrawal).
The CRA introduced additional statutory remedies for breach of consumer contracts, namely:
Repeat performance - if a school is in breach of its obligation to perform a service with reasonable skill and care, a parent will have a new statutory right to repeat performance; or
Reduction in price - if repeat performance is impossible or not done properly.
The law is unclear as to whether these new remedies apply only to consumer contracts formed after 1 October 2015, or to breaches of any consumer contracts after that date. We are awaiting judicial guidance on this and in the meantime would recommend flexibility in decision-making if such remedies are pursued for post-1 October 2015 breaches.
Such remedies are not without control. A CRA Explanatory Note states that:
"a reduction in price of an appropriate amount will normally mean that the price is reduced by the difference between the value of the service the consumer paid for (the full price) and the value of the service as provided (the benefit which the consumer has derived from the service). A full refund might be justified if, for example, the consumer has derived no benefit from the service".
There is still no automatic right to a refund, and parents may find it difficult to demonstrate that either they have derived no benefit at all from a contract for education or to quantify any claimed reduction in fees.
Most parental concerns, whether phrased as complaints or disputes, stand the best chance of resolution if they are acknowledged quickly and courteously, lead to information-gathering and an investigation of some sort to identify the merits of the case, followed by a conclusion which is communicated with appropriate redress.
Organisations are also encouraged to consider complaints and disputes regularly and to review their practices in the light of findings made, to inform quality outcomes and best practice.
When faced with a complaint or dispute, a school's objective will generally be to resolve it quickly and efficiently, whilst protecting the interests of its stakeholders. Achieving this will in part depend on being able to identify and address the parent's objectives to their satisfaction, which may be facilitated by a broader approach to complaints handling than that envisaged by a sequential policy and procedure.
It can be helpful to liaise with a parent when an issue is raised, to discuss the various options available to them and the school and to manage expectations about timescale and outcome. Parents generally perceive that their issue is being taken seriously and this can form an important base for an effective resolution process. Such discussions are also mandated by the Courts once litigation is in contemplation - parties then have a duty to consider resolving the dispute by means other than court action and failure to consider this in a meaningful way is likely to attract adverse costs if litigation follows.
We advocate flexibility in approach - and policies and procedures which enable schools to consider issues on their particular facts and to take commercial decisions where appropriate. Of course, once a parent has decided on a preferred course of action, that must generally be progressed in order to achieve regulatory compliance, but this does not prevent wider discussions. The challenge for schools - and particularly for those in governance and leadership positions - is to keep in mind the school's objectives and the strategy for achieving them without getting stuck in entrenched positions as the dispute progresses.
For example, if a parent demands a refund at the outset (ie before their complaint has been investigated), it is unlikely to be appropriate to concede this without further investigation, both into whether the school accepts there has been a breach of contract as alleged and whether this remedy is available to them on the facts. If, however, it is clear that a school has made a mistake, it may be better to concede this and offer recompense early.
Organisations are encouraged to consider complaints and disputes regularly and to review their practices in the light of findings made, to inform quality outcomes and best practice
In the heat of disagreement, which can rapidly become personal, it is difficult to maintain a clear sight of where the best interests of all parties, including any pupils affected, lie. The Head is usually best-placed to broker resolution with parents, but their involvement could create conflict with their usual role in determining formal complaints.
An alternative is to encourage one of the school's governors (perhaps the Chair or the Chair of the committee responsible for complaints) to review the school's wider objectives and strategy in the handling of complaints and disputes; and to consider the implications of the CRA on existing policies and procedures. However, governor involvement in individual disputes runs contrary to their strategic rather than operational role within the school - and of course sufficient governors must be kept independent in case a panel review is required.
Regardless of who you decide is best placed to perform this role, we suggest that complaints are subjected to an analytical review by an individual with appropriate seniority to consider issues such:
The nature and history of the issue
The parent's stated objective(s) and the need for regulatory compliance
The number of others affected
Timing of discussions - sufficient information must be available but discussions are encouraged before parties become entrenched
The effect on the pupil (and how it is recorded on their file)
The impact on staff involved in the issue and its investigation
If the school is charitable, the fact that any payments must be justifiable (ex gratia payments being prohibited).
Details of the Ombudsman Service appear on the Trading Standards website, but schools are not obliged to use them.
So, what should the school do in my earlier example? We would recommend that it investigates the allegation carefully and proportionately in view of the fact that there could be a cohort of pupils needing support and post-exam services and parents bringing complaints or claims. The issue should be reported to insurers as a circumstance which could give rise to a claim if the school's policy wording requires that.
In terms of remedy, it is arguable that the new CRA remedies do not apply. However if a breach was upheld (and of course we have no evidence of this), the parent would be entitled to claim damages for any financial loss he can prove he suffered as a result and it will make little practical difference to the school whether that is framed as damages or a refund of fees (unless this impacts the insurance position).
Should you have any queries on the issues raised in this article, contact Tabitha Cave from Veale Wasbrough Vizards' Regulatory Compliance team on email@example.com or 0117 314 5381