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Your legal rights and independent schools: a guide for parents

View profile for Peter Ellicott
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When you send your child to a private school, you make a huge financial commitment and in return you expect to see high standards of tuition, facilities, and pastoral care. 

This year has seen a number of prominent schools in the news due to claims of assault and harassment, and also because of complaints by parents over the level of service received during the pandemic and the related fee discounts that have been offered. 

So what are your rights if you become embroiled in a dispute with an independent school? Peter Ellicott, a solicitor in the dispute resolution team with Bailey & Cogger in Kent examines some of the most common dispute triggers and outlines your options.  

Disputes between parents and private schools typically fall into three categories.

Complaints regarding tuition or exam results, which may include:

  • the quality of teaching;
  • the absence of appropriate special educational needs (SEN) provision;
  • the adequacy of online teaching during school closures; or
  • the grading of Common Entrance, GCSE and A Level assessments where these have been undertaken by teachers in lieu of formally recognised exams.

Complaints about pastoral care, such as:

  • perceived disability, gender, or race discrimination;
  • bullying or harassment by staff or other pupils, including via social media;
  • incidents of physical abuse, including violent assault and rape;
  • incidents of alleged negligence, including where an accident has occurred on school premises or during a school trip and a child has suffered a personal injury;
  • the misuse of drugs or alcohol on school premises or during a school event;
  • failure to tackle known incidents of self-harming; or
  • failure to provide appropriate support to safeguard a pupil’s mental health.

Complaints relating to pupil exclusion or withdrawal, including:

  • the imposition of a period of pupil suspension;
  • the reasonableness of a decision to effect a pupil expulsion; or
  • parental liability to pay a term’s fees where a child is removed from a school without the required prior notice being given.

As a result of Covid, there is an increasing number of disputes arising about the lack of candor being shown by some schools when asked about cost savings made during the pandemic and how this has been reflected in any fee discounts that have been offered.

The duty of care owed by private schools

All schools are under an obligation to safeguard the physical and emotional wellbeing of the pupils entrusted to their care.  This means that they are obliged to take reasonable steps to prevent foreseeable injuries from arising, be that a fall from playground equipment or the development of a mental health problem due to bullying at school.

Where a school fails to comply with the legal duties imposed on them, then it may be possible for a parent or child to demand the payment of compensation to reflect any harm caused.  It may also be possible for a claim to be made under any specialist insurance that they school may have arranged.

How to make a complaint about an independent school

All independent schools are required to have a written complaints procedure, which should be made available to parents, and which explains the process that the school will follow to try to resolve matters. While the procedure adopted by each school may differ slightly, most schools will follow a three-step process along the following lines:

  • level 1 – an informal complaint to your child’s form tutor, subject teacher, department head or year head;
  • level 2 – a formal written complaint to the school’s headmaster or headmistress, or to the Chair of the Board of Governors where it is the head of school that you wish to complain about;
  • level 3 – a review of your complaint by a specially constituted and independent Complaints Panel, whose decision will usually be the final word on the matter from the school’s perspective.

Dissatisfied about the handling of a complaint

If you have exhausted your school’s internal complaints procedure and still remain dissatisfied, then your next step should be to consult a lawyer who can help you to review what has happened and advise you on your legal rights if you want to take matters further.

Unlike state schools, you cannot simply rely on the local authority, the Department for Education or Ofsted to intervene in order to try to get matters sorted.  Instead, you need to look at:  

  • the terms of the contract that you signed up to when your child joined the school, which will set out what the school agreed to do and your respective rights and obligations in the event that something goes wrong or an issue arises;  
  • the rules and regulations that apply to and govern independent schools;
  • whether the nature of your complaint makes it appropriate for you to refer your concerns to the Department for Education (which will be rare), the Independent Schools Inspectorate or – in serious cases involving allegedly criminal behaviour – the police; and  
  • legal duties around standards of care and levels of service that you may be able to rely on.

How our lawyers can help

By seeking legal advice, you can quickly ascertain whether a breach of contract may have occurred and if so the possible rights of redress you may have. This may include insisting that the school agree to take some specified course of action, that they provide a full or partial refund of fees, or that they agree to pay reasonable compensation where appropriate. 

A lawyer can also advise on whether there may have been a breach of any statutory or common law rules, such as those around personal injury.

Your lawyer will help you to:  

  • better explain your concerns and what you are asking the school to do to address them;
  • encourage representatives of the school to meet you to discuss possible means by which your complaint can be resolved without the need for matters to be escalated;
  • enter correspondence with the school’s lawyers to discuss the relative strengths and weaknesses of your respective cases;
  • support you and the school in attending an independent mediation where it is felt that this may be helpful;
  • facilitate your child’s reintegration to the school where they have been excluded and it is agreed that they can return, or alternatively make arrangements for their transfer to a new school where this is the best course of action; and
  • provide representation if you decide to instigate legal proceedings or press for the bringing of criminal charges. 

To find out more, please contact Peter Ellicott in the dispute resolution team on 01732 353305 or email peter.ellicott@bailey-cogger.com.  Bailey & Cogger has offices in Tonbridge, Gravesend, Maidstone, Chatham and Tenterden.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.