Richard Bruton (Dublin Bay North, Fine Gael) | Oireachtas source

I move amendment No. 3:

In page 4, between lines 28 and 29, to insert the following:

“Appeals

7. (1) The Act of 1998 is amended by the substitution of the following section for section 29:"Appeals

29. (1) Where a board or a person acting on behalf of a board—

(a) permanently excludes a student from a school,

(b) suspends a student from attendance at a school for a period or periods totalling not less than 20 school days in a school year, or

(c) refuses to admit a student to a school, where the decision to refuse admission is due to—

(i) the school, or a special class in the school, being oversubscribed, or

(ii) a reason other than the school, or a special class in the school, being oversubscribed,

the parent of the student, or in the case of a student who has reached the age of 18 years, the student, may, within such period as may be determined in procedures under section 29B, and following the conclusion of any review under section 29C or any appeal procedures provided by the school in accordance with this Act, appeal a decision in accordance with this section and sections 29A to 29F.

(2) In this section and sections 29A to 29F—

‘board’ includes a committee established under section 44(1) or 44(7) of the Education and Training Boards Act 2013;

‘oversubscribed’ has the same meaning as it has in Part X (inserted by section 7 of the Education (Admission to Schools) Act 2017);

‘student’ includes a person in relation to whom an application for admission to a school has been made and that person or his or her parents may appeal against a decision to refuse to admit him or her in the same manner as a student or his or her parents may appeal a decision under this section.”.

(2) The Act of 1998 is amended by the insertion of the following sections after section 29:

“Establishment of appeals panels and appeals committees

29A. (1) The Minister shall, from time to time, establish one or more panels of suitable persons (in this section referred to as an ‘appeals panel’) to consider appeals under section 29.

(2) A member of an appeals panel—

(a) shall be appointed to the panel for such period as the Minister may determine,

(b) shall be paid such fees and expenses as the Minister, with the consent of the Minister for Public Expenditure and Reform, may from time to time determine,

(c) may at any time be removed from the panel by the Minister for stated reasons, and

(d) shall be independent and impartial in carrying out his or her functions.

(3) Where the Minister receives a notice of appeal under section 29, he or she shall establish a committee of 3 members of an appeals panel to consider the appeal concerned (in this section and sections 29B to 29F referred to as an ‘appeals committee’).

(4) The Minister shall nominate one member of an appeals committee to be the chairperson of the committee for the purposes of the appeal concerned and, in the case of an equal division of votes, the chairperson shall have a second or casting vote.

(5) The Minister may furnish such support of an administrative nature to an appeals committee as the Minister considers necessary to enable the appeals committee to perform its functions.

(6) An appeals committee shall act in accordance with procedures determined under section 29B.

Procedures in relation to appeals

29B. (1) The Minister may, from time to time, having regard to the principles of inclusion, equality of access to and participation in education, efficiency, effectiveness, clarity and fairness for applicants and schools and following consultation with bodies representative of patrons, national associations of parents, recognised school management organisations and recognised trade unions and staff associations representing teachers, determine procedures for the purpose of sections 29 to 29F and such procedures may provide for all or any of the following:

(a) the period within which an appeals committee shall determine an appeal and, in that regard, the Minister may—

(i) determine different periods during which an appeal under paragraph (a), (b) or (c)(ii) of section 29(1) shall be heard and determined, and an appeal under section 29(1)(c)(i) shall be determined, and

(ii) determine periods during the year which shall not be included for the purposes of the calculation of a period under subparagraph (i);

(b) the manner by which an appeals committee shall determine an appeal, including in the case of an appeal under section 29(1)(a), (b) or (c)(ii), procedures regarding the holding of an oral hearing and the examination by the appeals committee of parties to the appeal;

(c) the form and manner in which the Child and Family Agency and the National Council for Special Education may make submissions at an oral hearing in an appeal under section 29(1)(a), (b) or (c)(ii);

(d) the form and manner in which an appeal shall be brought, including the period during which an appeal shall be brought;

(e) in the case of an appeal under section 29(1)(a), (b) or (c)(ii)—

(i) the fixing and notification of the date, time and location of an oral hearing, and

(ii) the circumstances in which an adjournment of an oral hearing may be granted;

(f) that an appeals committee may by notice in writing require an applicant, board, or other relevant person or body to furnish to the committee the information specified in the notice within the period specified in that notice;

(g) the period during which and manner by which an appeals committee shall notify the Minister of its decision and the reasons for its decision;

(h) information which shall be submitted to an appeals committee by an applicant when making an appeal under section 29(1)(c)(i) or

(ii) which shall include—

(i) a copy of the application for admission,

(ii) a copy of the decision to refuse admission,

(iii) where a request has been made under section 29C, a copy of that request and a copy of any statement received from the board under subsection (5) of that section, and

(iv) the grounds of the appeal;

(i) information which shall be submitted by a board to an appeals committee where an appeal has been made under section 29(1)(c)(i) or (ii) which shall include the school’s admission policy and the school’s annual admission notice;

(j) such other consequential or ancillary matter as the Minister

considers appropriate.(2) An appeals committee, an applicant and a board shall comply with

procedures determined by the Minister under this section.

Review by board of decision to refuse admission

29C. (1) Subject to subsection (2) and prior to making an appeal under section 29(1)(c), an applicant—(a) shall, in the case of an appeal under section 29(1)(c)(i), and

(b) may, in the case of an appeal under section 29(1)(c)(ii), within such period as may be determined by the Minister, request in writing a review by the board of the decision to refuse admission.(2) A request under subsection (1) shall—(a) be based on the implementation by the school of its admission policy and the content of its annual admission notice, and

(b) set out the grounds of the request.(3) Where, following a request under subsection (1)—(a) the request for a review has not been made within the period determined by the Minister, or

(b) where the request results from the refusal to admit a student to the school because the school, or a special class in the school, was oversubscribed and—

(i) the applicant is relying on information that was not made available in the application for admission, or

(ii) the board considers that the grounds relied upon in the application for review did not have a material effect on the outcome of the application for admission,

the board shall notify the applicant that it is not in a position to review the decision to refuse admission and the reasons therefore.(4) Subject to subsection (3), a board shall, following a request under subsection (1), within such period as may be determined by the Minister, review its decision to refuse admission having regard to the grounds set out in the request for review.

(5) Following a review under subsection (4) the board shall issue the applicant with—(a) a statement confirming that there was no failure or error in making the decision to refuse admission, or

(b) a statement confirming—

(i) that a failure or error occurred in making the decision to refuse admission, and

(ii) whether or not such failure or error had a material effect on the outcome of the application.

(6) Where a board issues a statement under subsection (5)(b) and the failure or error concerned had a material effect on the outcome of the application for admission, the board shall rectify that failure or error by—(a) admitting the student to the school or special class concerned, or

(b) adjusting the ranking of the student on the waiting list.(7) In this section and section 29E ‘waiting list’ means the waiting list provided for in the admission policy of the school concerned.

Appeals under section 29(1)(a), (b) and (c)(ii)

29D. (1) An appeals committee shall, in accordance with procedures

determined by the Minister under section 29B, hold an oral hearing for

the purposes of an appeal under section 29(1)(a), (b) or (c)(ii).

(2) For the purposes of an appeal under section 29(1)(a), (b) or (c)(ii)—(a) oral hearings shall be conducted with the minimum of formality consistent with giving all parties a fair hearing, and

(b) an appeals committee may, where it is of the opinion that reaching agreement on the matters the subject of the appeal is practicable in +the circumstances, provide such assistance to the parties to reach agreement as the committee considers appropriate.(3) For the purposes of an oral hearing under this section—(a) the Child and Family Agency, or

(b) in the case of a child with special educational needs, the National Council for Special Education, may make such submissions, if any, to an appeals committee as it or they consider or considers appropriate.(4) In hearing and determining an appeal under section 29 against a decision to which subsection (1)(a) or (b) of that section relates an appeals committee shall have regard to—(a) the nature, scale and persistence of any behaviour alleged to have given rise to, or contributed to, the decision made by or on behalf of the board and whether or not such behaviour is confined to specific classes in the school concerned,

(b) the merit of any explanation offered by the student in relation to his or her behaviour,(c) the reasonableness of any efforts made by the school to enable the student to participate in and benefit from education and whether or not all reasonable efforts have been fully exhausted and any response by the student to any efforts made by the school to enable the student to participate in and benefit from education,

(d) the educational interests of the student concerned and the desirability of enabling him or her to participate in and benefit from education with his or her peers,

(e) the educational interests of, and the effective provision of education for, other students of the school and the maintenance of a classroom and school environment which is supportive of learning amongst all students in the school and ensures continuity of instruction provided to students,

(f) any evidence that the behaviour of the student has impacted on the safety, health and welfare of teachers, staff or other students of the school,

(g) the school’s code of behaviour under section 23 of the Act of 2000 and other relevant policies of the school, and(i) in the case of the code of behaviour, whether it complies with section 23 of the Act of 2000 and any guidelines issued under subsection (3) of that section, and

(ii) in the case of any other relevant policies, the extent to which each of them is implemented and is in compliance with—

(I) any enactment that imposes duties on schools or their boards,

(II) any relevant guidelines or policies of the Minister,

(h) the duties on schools or their boards imposed by or under any enactment,

(i) any guidelines issued by the Child and Family Agency under section 22(7) of the Act of 2000,

(j) in the case of an appeal brought by a parent or a student, any submissions made by the National Council for Special Education or the Child and Family Agency, and

(k) such other matters as the appeals committee considers relevant.(5) Nothing in subsection (4) affects the obligation of an appeals committee to allow an appeal under section 29(1)(a) if the parent of the student or the student, as the case may be, shows that subsection (1) or (4) of section 24 of the Act of 2000 has not been complied with in relation to that exclusion.

(6) Following an oral hearing under this section an appeals committee

shall—(a) come to its conclusion having examined and considered the evidence and materials made available to it, and

(b) make a preliminary decision in relation to the appeal.(7) An appeals committee shall, by notice in writing, notify the Minister, the applicant, the board and, where the Child and Family Agency or the National Council for Special Education made submissions at the oral hearing, the Agency or the Council of its preliminary decision under subsection (6), the reasons for its preliminary decision and, where it proposes to allow an appeal, its proposed direction to the board.

(8) An applicant, the board, and where the Child and Family Agency or the National Council for Special Education made submissions at the oral hearing in accordance with procedures under section 29B, the Agency or the Council may, make observations to the appeals committee in relation to its preliminary decision and any proposed direction.

(9) An appeals committee shall, having considered any observations made under subsection (8), make its final decision.

(10) Subject to subsection (9), an appeals committee shall, in its final decision—(a) allow the appeal, or

(b) disallow the appeal.(11) An appeals committee, in its final decision, shall—(a) where it allows an appeal under section 29(1)(a), include a direction to the board to readmit the student and remove the expulsion from the record of the student,

(b) where it allows an appeal under section 29(1)(b), include a direction to the board to readmit the student and remove the suspension from the record of the student, and

(c) where it allows an appeal under section 29(1)(c)(ii), include a

direction to the board to admit the student.(12) An appeals committee shall, by notice in writing, inform the Minister of its final decision and the reasons for its final decision and, where it allows an appeal, shall forward to the Minister a copy of any direction included in its final decision.

(13) The Minister shall, as soon as practicable after he or she receives a notice under subsection (12), forward to the applicant, the board and, where the Child and Family Agency or the National Council for Special Education made submissions at the oral hearing, the Agency or the Council—(a) a copy of the final decision of the appeals committee and the reasons for its decision, and

(b) where the appeals committee has allowed an appeal, a copy of the direction included in the final decision of the appeals committee.(14) A board shall comply with a direction under subsection (11).

(15) In this section, ‘Act of 2000’ means the Education (Welfare) Act 2000.

Appeals under section 29(1)(c)(i)

29E. (1) An appeals committee shall, in accordance with procedures determined by the Minister under section 29B, examine and determine an appeal under section 29(1)(c)(i) without an oral hearing and, when doing so, shall rely on the same evidence and materials as were available to and relied upon by the board when it made its decision to refuse admission.(2) Following the determination of an appeal under section 29(1)(c)(i), an appeals committee shall make a decision to—

(a) allow the appeal, or

(b) disallow the appeal.

(3) Where an appeals committee allows an appeal under section 29(1)(c)

(i) its decision shall include a direction to the board to—

(a) admit the student, or

(b) adjust the ranking of the student on the waiting list.(4) An appeals committee shall—

(a) by notice in writing, inform the Minister of a decision under subsection (2), and the reasons for the decision, and

(b) where it allows an appeal, forward to the Minister a copy of the direction issued under subsection (3).

(5) The Minister shall, as soon as practicable after he or she receives a

notice under subsection (4) forward to the applicant and the board—

(a) a copy of the decision of the appeals committee under subsection (2) and the reasons for its decision, and

(b) where the appeals committee has allowed an appeal, a copy of the

direction of the appeals committee under subsection (3).

(6) A board shall comply with a direction under subsection (3).Miscellaneous provisions in relation to appeals under section 29

29F. (1) An appeals committee shall refuse to hear or determine, or refuse to continue to hear or determine, an appeal under section 29 where—(a) it is of the opinion that the appeal is vexatious, frivolous, an abuse of process or without substance or foundation,

(b) in relation to an appeal under section 29(1)(a), (b) or (c)(ii) it is satisfied, having regard to the grounds of the appeal and any attempts to facilitate agreement between the parties and any subsequent steps taken by the parties that, in the particular circumstances, the appeal should not be considered or further considered,

(c) an appeal has not been made within the period specified in procedures under section 29B,

(d) an applicant has failed to provide information requested in accordance with procedures under section 29B,

(e) in relation to an appeal under section 29(1)(c)(i) or (ii), the grounds for an appeal relate to section 3 or 7 of the Equal Status Act 2000, or

(f) in relation to an appeal under section 29(1)(c)(i)—

(i) an appeals committee is of the opinion that the grounds relied upon by the applicant did not have a material effect on the outcome of the application for admission,

(ii) an appeal is based on information that was not made available in the application for admission, or

(iii) the applicant did not request a review by the board of the decision to refuse admission.

(2) Subject to subsection (1), where an issue relating to a decision to refuse a student admission to a school or permanently exclude a student from a school would be capable of being the subject of—

(a) an appeal under section 29, and

(b) a designation under section 67 (inserted by section 7 of the Education (Admission to Schools) Act 2017),

then an appeal under section 29 and a designation under section 67 may not, in respect of the same student, be made at the same time.(3) Where an appeal under section 29 has been unsuccessful in respect of a student, nothing in subsection (2) shall preclude a designation being made under section 67 in respect of the same student.

(4) An appeals committee may draw such inferences as it considers appropriate as a result of any failure of a party to an appeal to provide any information required or requested in accordance with procedures under section 29B.

(5) (a) A direction under section 29D(11) or 29E(3) in relation to an appeal under section 29(1)(c)(i) or (ii) shall not provide that the provisions of a school’s admission policy be amended or disregarded.

(b) Nothing in paragraph (a) shall be construed as precluding an appeals committee, where it considers it appropriate to do so, from commenting in the reasons for its decision on the lack of clarity of a school’s admission policy.”.

(3) The amendments effected by subsections (1) and (2) shall not apply to an appeal to the Secretary General under section 29 of the Act of 1998 made before the commencement of this section and section 29 shall continue to apply in relation to such appeals as if the amendments concerned had not been made.”.

This group of amendments involve the replacement of section 29 of the Education Act 1998 to make the entire appeals process fit for purpose and less cumbersome for parents. It is based on the experience of the Department, which has dealt with more than 5,000 appeals and these are improvements that will make the system work better for both parents and schools. There is a number of amendments. An amendment removes a section that never was activated, it was a class of cases that could be brought by appeal, which has never been used. It was a general power for the Minister to add new categories to which section 29 should be applied. We have been advised by the Attorney General that it should be removed and we think it is better to deal with this through a students' charter rather than adding to provisions in section 29.

The second set of amendments is to distinguish between two separate types of appeals. One are appeals where a school is not over-subscribed, and where an appeal against expulsion, suspension or refusal occurs in such a situation, there will be an oral hearing. The appeals will be dealt with fully de novo, so the appeals committee will come to its own conclusion, having examined and considered the evidence and materials available to it. We are providing for a fast track for this process as it does not have to go to the board of management of the school first. We are providing for a preliminary decision and the opportunity to appeal before it is confirmed.

This is trying to deal with the situation in a different way. It is different from the second category, so we are distinguishing between under-subscribed and over-subscribed schools. In an over-subscribed school, where there is a refusal to admit a pupil, the appeals will be on the record. That means the appeal committee will rely on the same evidence and materials as were available to be relied upon by the board of management when it made its decision to refuse admission.In that case we will require that the board has reviewed the refusal first before it can go to the appeal, unlike the case of a non over-subscribed school. It is only if the grounds offered in the appeal would materially affect the decision that the appeal will be heard. There is additional hoops to ensure that the appeal process is not being used unnecessarily. A third element of the group of amendments is that the new section 29 removes the requirement for parents of students in an Education and Training Board's schools to appeal in the first instance to an ETB committee, before taking a section 29 appeal. That was in the old legislation, but it is a loop that is unnecessary and is being removed.

There are some other elements. The new section 29 includes a number of provisions to improve the day-to-day operation of the process. These include removing the requirement for an inspector to be on every appeals committee and setting out the number of days of suspension before an appeal can be made. The number of days of suspension is being set at 20 days. This has been agreed with parents' groups and is based on practice that has evolved. We are removing the current mandatory requirement for appeals to be heard within 30 days from date of receipt and instead we are providing that procedures set out the timeframes for making and determining appeals and for providing notification of the outcome of any such appeals and that different periods can be provided for different categories of appeal. Again, the intention is that none would go beyond 30 days but it would allow for different periods of time and that they would be set by regulation.

There is a provision that an appeals committee may refuse to determine an appeal in certain circumstances. One is if it is vexatious, frivolous or an abuse of process while another is where the appeals committee has attempted to have a facilitation, there have been attempts to facilitate parties or subsequent steps have been taken by the parties and, in particular circumstances, the committee feels the appeal should not be considered further, that is, where there has been an effort to try to find a solution, that has been exhausted and there is no point in a further appeal and it cannot be proceeded with. If an appeal has not been made within the timeframe determined, for example, and if it is late, it can be refused.

There is a provision whereby the appeals committee can rule that a child must be admitted but it is not within its remit to recommend a change in the admissions policy of the school. However, it can comment on the lack of clarity of the school's admission policy. Section 29 is not trying the admissions policy of the school itself. The admissions policy must comply with this Bill.

The other significant element here is the introduction of compellability so that where an appeal has been allowed, the school must admit the student, readmit the student or adjust the ranking of the student on the waiting list. Those are the sort of provisions that are being set out in this amending section.