Your internal complaints procedure is integral to the monitoring and regulation of educational standards in English schools. However, the consideration of complaints which are manifestly unreasonable contributes little to the overall picture of educational standards. It often places an unjustified strain on resources and causes unacceptable stress for staff, who may need support as a consequence.
How can you manage unreasonable complaints and when is it reasonable to refuse access to the complaints procedures altogether?
What is a complaint?
Independent schools in England are governed by the Education (Independent School Standards) Regulations 2014 (“Regulations”) under Section 94 of the Education and Skills Act 2008.
Part 7 of the Regulations deals with complaints handling (the “complaints standard”) and will generally be met where a school has a compliant policy and can demonstrate that it has correctly dealt with complaints falling within the policy scope. The complaints standard deals with procedural and record keeping requirements but does not define what constitutes a complaint. So which complaints are caught by the standard?
Ofsted’s inspection handbooks are silent on the scope of the complaints standard and its guidance for parents simply says that,“the schools complaints procedure will tell you what kinds of complaints the school will deal with, such as bullying or bad behaviour”. The Independent Schools Inspectorate describes a complaint within the regulations as “any matter about which a parent is unhappy and seeks action by the school” (although ISI acknowledges that complaints about exclusion from school do not fall within the complaints standard).
Any attempt by a school to narrow the application of its policy risks excluding complaints falling within the very broad ISI definition and failing to meet the complaints standard on inspection. This is often viewed as an impediment to the management of unreasonable complaints but needn’t be.
Is there any guidance for dealing with unreasonable complaints (or complainants)?
Whilst there isn’t any guidance specifically for independent schools about the management of complaints, the Department for Education’s guidance on complaints handling for maintained schools can help independent schools to understand what a reasonable approach to the ‘unreasonable complaint’ might look like in practice.
The guidance defines unreasonable complainants as,“those who, because of the frequency or nature of their contacts with the school, hinder… consideration of their or other people’s complaints.” It is, however, clear that, whilst an unreasonable complainant can be managed, it is the complaint itself which is primarily relevant.
As there is no prescribed procedure to follow for dealing with unreasonable complaints, you will need to be cautious and consider all of the facts carefully. The guidance sets out a list of factors which are indicative (though not determinative) of unreasonable conduct, including:
-Refusing to articulate a complaint or specify the grounds of a complaint or the outcomes sought, despite offers of assistance
-Raising large numbers of detailed but unimportant questions
-Making unjustified complaints about staff who are trying to deal with the issues
-Changing the basis of the complaint as the investigation proceeds.
Complaints which are more likely to be objectively considered unreasonable include complaints which:
-Cannot be understood (despite offers of assistance from the school)
-Are made maliciously, aggressively and/or using threats, intimidation or violence
-Are manifestly unjustified, inappropriate, or an improper use of formal procedure
-Are in effect an attempt to re-open a concluded procedure.
How can this work in practice?
Some simple changes to your school’s complaints procedure can help to signpost expectations about complainant conduct, outcomes and the circumstances in which an unreasonable complaint may be dismissed. An individualised approach will then be required to respond to the particular complainant.
The guidance suggests that, where possible, you should work with the complainant to facilitate the production of an actionable complaint and help them to understand what outcomes the complaints procedure can offer. So for example, if a parent says: “I am deeply unhappy that my son was not selected for the football first 11. I want this looked into and for the football coach to be sacked,” this complaint potentially falls within the complaints standard, but it is not readily actionable under a complaints procedure given the lack of detail and the nature of the outcome sought. It would, however, be premature to dismiss the complaint as unreasonable at this stage without first seeking to capture and agree the relevant detail and managing the complainant’s expectations. By doing so, you can set suitable parameters for investigation and limit the ability of the complainant to adapt or broaden their complaint as the procedures progress. This collaborative approach may even be ameliorative and/or lead to the withdrawal of the complaint where, for example, a complainant has made a statement in haste which they then regret.
Once your complaints procedure has concluded, you may be faced with complainants who criticise the procedures and/or outcome and seek to re-open the procedure by raising related issues. In such cases, provided you are satisfied that you have followed the policy, the guidance suggests that it will be reasonable to refuse any further consideration of the complaint. Where applicable complainants can be directed to sources of free legal advice and accredited alternative dispute resolution bodies if they wish to take the matter further.
Complaints are commonly combined with information requests and sometimes with threats of litigation. These issues can be difficult to manage alongside a complaint as, whilst they are often closely connected, they can be subject to different procedures and timings (a subject access request under the Data Protection Act 1998 for example). The presence of these sometimes conflicting issues does not necessarily take the complaint outside the scope of the complaints standard or justify dismissal but, again, it is prudent in these cases to help a complainant understand the scope and purpose of the complaints process, and the procedures and timings which will apply to ancillary issues.
Serial information requests can be a particular challenge for schools and may contribute to a broader picture of unreasonable conduct. This might be relevant to determining whether a complaint has been made maliciously or whether, in extreme cases, a complainant’s conduct amounts to harassment. It may be reasonable to impose restrictions on relevant communications between the complainant and your school to ensure a coordinated approach and to relieve the burden on staff but care should be taken. However, you need to ensure that you do not unlawfully refuse a legitimate information request. For example, the grounds upon which personal information can be refused under the Data Protection Act 1998 are extremely limited and it may be necessary to comply with a subject access request irrespective of the status of the complaint and/or conduct of the complainant.
Ultimately dealing with unreasonable complaints and conduct does require careful judgment on the facts of each case but proactive management of this issue through clear policy and effective communication will maintain the integrity of the complaints procedure and relieve a significant burden on staff.
James Garside is an associate at leading education Law Firm VWV.