Apprenticeships, Skills, Children and Learning Bill

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Apprenticeships, Skills, Children and Learning Bill

Apprenticeships, Skills, Children and Learning Bill
Part 10 — Schools
Chapter 2 — Complaints: England
116

(6)
Regulations prescribing a period for the purposes of section 197(6)(d) may
prescribe circumstances in which a Local Commissioner may determine that a
person who has not been a registered pupil at the school within the prescribed
period is to be treated as a “pupil” for the purposes of that section.
(7)
In this Chapter “Local Commissioner” has the meaning given by section 23 of
5
the Local Government Act 1974 (c. 7).
199
Time-limit etc for making complaint
(1)
The requirements referred to in section 198(1) are that the complaint is made—
(a)
in writing; and
(b)
within 12 months beginning with the day the complainant first had
10
notice of the matter complained of;

but this is subject to subsection (2).
(2)
A Local Commissioner may disapply either or both of the requirements in
subsection (1) in relation to a particular complainant.
200
Procedure in respect of investigations
15
(1)
A Local Commissioner who proposes to investigate a complaint to which this
Chapter applies must give the following an opportunity to comment on the
matter—
(a)
the respondent;
(b)
any other person who is alleged in the complaint to have done or
20
authorised the act which would be the subject of the investigation;
(c)
any person who otherwise appears to the Local Commissioner to have
done or authorised the act.
(2)
Every investigation under this Chapter is to be conducted in private.
(3)
Subject to subsection (2), the procedure for conducting an investigation is to be
25
such as the Local Commissioner considers appropriate in the circumstances of
the case.
(4)
The Local Commissioner may, in particular—
(a)
obtain information from such persons and in such manner as the Local
Commissioner thinks fit;
30
(b)
make such inquiries as the Local Commissioner thinks fit; and
(c)
determine whether any person may be represented (by counsel,
solicitor or otherwise) in the investigation.
(5)
The Local Commissioner may, if the Local Commissioner thinks fit, pay to the
complainant, and to any other person who attends or provides information for
35
the purposes of an investigation under this Chapter—
(a)
sums in respect of the expenses properly incurred by them;
(b)
allowances by way of compensation for the loss of their time.
(6)
In this Chapter a reference to the “respondent” is a reference to the governing
body or head teacher about whose act a complaint to which this Chapter
40
applies was made.

Apprenticeships, Skills, Children and Learning Bill
Part 10 — Schools
Chapter 2 — Complaints: England
117

201
Investigations: further provisions
(1)
For the purposes of an investigation under this Chapter a Local Commissioner
may require the following persons to provide information or produce
documents relevant to the investigation—
(a)
the respondent;
5
(b)
any other person who in the Local Commissioner’s opinion is able to
provide any such information or produce any such documents.
(2)
For the purposes of an investigation under this Chapter a Local Commissioner
has the same powers as the High Court in respect of—
(a)
the attendance and examination of witnesses; and
10
(b)
the production of documents.
(3)
To assist in any investigation, a Local Commissioner may obtain advice from
any person who in the Local Commissioner’s opinion is qualified to give it.
(4)
A Local Commissioner may pay to a person giving advice such fees or
allowances as the Local Commissioner may determine.
15
(5)
A Local Commissioner may appoint and pay a mediator or other appropriate
person to assist in the conduct of an investigation under this Chapter.
(6)
Any person appointed under subsection (5) is deemed to be an officer of the
Commission for Local Administration in England in carrying out functions
under that appointment.
20
(7)
No person may be compelled for the purposes of an investigation under this
Chapter to give any evidence or produce any document which the person
could not be compelled to give or produce in civil proceedings before the High
Court.
(8)
If any person, without lawful excuse—
25
(a)
obstructs a Local Commissioner in the performance of the Local
Commissioner’s functions under this Chapter;
(b)
obstructs a person discharging or assisting in the discharge of those
functions; or
(c)
is guilty of an act in relation to an investigation under this Chapter
30
which, if that investigation were a proceeding in the High Court, would
constitute contempt of court,

the Local Commissioner may certify the offence to the High Court.
(9)
Where an offence is certified under subsection (8), the High Court may inquire
into the matter and, after hearing any witnesses who may be produced against
35
or on behalf of the person charged (“D”), and after hearing any statement that
may be offered in D’s defence, deal with D in any manner in which the High
Court could deal with a person who had committed the offence in relation to
the High Court.
202
Statements about investigations
40
(1)
A Local Commissioner must prepare a written statement in accordance with
subsections (2) to (4) if the Local Commissioner—
(a)
decides not to investigate a matter under this Chapter;
(b)
decides to discontinue an investigation; or
(c)
completes an investigation.
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Apprenticeships, Skills, Children and Learning Bill
Part 10 — Schools
Chapter 2 — Complaints: England
118

(2)
In a case falling within subsection (1)(a) or (b), the statement must set out the
Local Commissioner’s reasons for the decision.
(3)
In a case falling within subsection (1)(c), the statement must—
(a)
set out the Local Commissioner’s conclusions on the investigation; and
(b)
include any recommendations the Local Commissioner considers it
5
appropriate to make.
(4)
The recommendations the Local Commissioner may make are
recommendations with respect to action which, in the Local Commissioner’s
opinion, the governing body should take—
(a)
to remedy any injustice sustained by the complainant in consequence
10
of the act which was the subject of the investigation; and
(b)
to prevent injustice being caused in the future in consequence of a
similar act.
(5)
The Local Commissioner must send a copy of a statement prepared under this
section to—
15
(a)
the complainant (or, if the complainant is the pupil and the Local
Commissioner thinks it appropriate, a parent of the complainant);
(b)
the respondent; and
(c)
the governing body, if the respondent is the head teacher.
(6)
If, on consideration of the statement, it appears to the governing body that a
20
payment should be made to or in respect of a person who has suffered injustice
in consequence of the act which was the subject of the investigation, the
governing body may make such a payment.
(7)
The statement must identify the school concerned.
(8)
The statement must not—
25
(a)
mention the name of any person; or
(b)
contain any particulars which, in the opinion of the Local
Commissioner, are likely to identify any person and can be omitted
without impairing the effectiveness of the statement.
(9)
But, after taking into account the public interest as well as the interests of that
30
person, the complainant and other persons, the Local Commissioner may
mention the name of a person, or include in the statement any particulars
which are likely to identify the person, if the Local Commissioner considers it
necessary to do so.
(10)
Nothing in subsection (8) prevents a statement mentioning the name of, or
35
containing particulars which are likely to identify, the head teacher of the
school concerned.
203
Adverse findings notices
(1)
This section applies where a governing body receives a statement prepared
under section 202 which contains recommendations.
40
(2)
The governing body must—
(a)
consider the statement; and
(b)
notify the Local Commissioner, within the notification period, of the
action which the governing body has taken or proposes to take.

Apprenticeships, Skills, Children and Learning Bill
Part 10 — Schools
Chapter 2 — Complaints: England
119

(3)
The Local Commissioner may by notice require the governing body to arrange
for an adverse findings notice to be published in accordance with subsections
(4) and (5) if the Local Commissioner—
(a)
does not receive the notification mentioned in subsection (2)(b) within
the notification period or is satisfied before the end of that period that
5
the governing body has decided to take no action;
(b)
is not satisfied with the action which the governing body has taken or
proposes to take; or
(c)
does not within the period of one month beginning with the end of the
notification period, or such longer period as the Local Commissioner
10
may agree in writing, receive confirmation that the governing body has
taken action, as proposed, to the satisfaction of the Commissioner.
(4)
An adverse findings notice is a notice, in such form as the governing body and
the Local Commissioner may agree, consisting of—
(a)
details of any action recommended in the statement which the
15
governing body has not taken;
(b)
such supporting material as the Local Commissioner may require;
(c)
if the governing body so requires, an explanation of the reasons for
having taken no action, or for not having taken the action
recommended in the statement.
20
(5)
The adverse findings notice must be published by the governing body in such
a way as the Local Commissioner may direct.
(6)
If the governing body—
(a)
fails to arrange for the publication of the adverse findings notice in
accordance with subsections (4) and (5); or
25
(b)
is unable, within the publication period, to agree with the Local
Commissioner the form of the adverse findings notice to be published,

the Local Commissioner must arrange for an adverse findings notice to be
published in such a way as the Local Commissioner considers appropriate.
(7)
The governing body must reimburse the Local Commissioner on demand any
30
reasonable expenses incurred by the Local Commissioner in performing the
duty under subsection (6).
(8)
In this section—
“notification period” means—
(a)
the period of one month beginning with the date on which the
35
governing body received the statement; or
(b)
such longer period as the Local Commissioner may agree in
writing.
“publication period” means—
(a)
the period of one month beginning with the date on which the
40
governing body received the notice under subsection (3); or
(b)
such longer period as the Local Commissioner may agree in
writing.
204
Publication of statements etc. by Local Commissioner
(1)
A Local Commissioner may—
45
(a)
publish all or part of a statement under section 202; or

Apprenticeships, Skills, Children and Learning Bill
Part 10 — Schools
Chapter 2 — Complaints: England
120

(b)
publish a summary of a matter which is the subject of a statement under
section 202,

if, after taking into account the public interest as well as the interests of the
complainant and of other persons, the Local Commissioner considers it
appropriate to do so.
5
(2)
A Local Commissioner may—
(a)
supply a copy of all or part of a statement or summary mentioned in
subsection (1) to any person who requests it; and
(b)
charge a reasonable fee for doing so.
(3)
Where a Local Commissioner publishes all or part of a statement or summary
10
mentioned in subsection (1), the governing body of the school concerned must,
on demand, reimburse the Local Commissioner the reasonable expenses of
publication.
(4)
Subsections (8) to (10) of section 202 apply to a summary of a matter which is
published, or a copy of which is supplied, under this section as they apply to a
15
statement prepared under that section.
205
Disclosure of information
(1)
Information obtained by a Local Commissioner, or any person discharging or
assisting in the discharge of a function of a Local Commissioner, in the course
of or for the purposes of an investigation under this Chapter must not be
20
disclosed except—
(a)
for the purpose of the investigation and of any statement, adverse
findings notice or summary under section 202, 203 or 204;
(b)
for the purposes of any proceedings for an offence of perjury alleged to
have been committed in the course of an investigation under this
25
Chapter;
(c)
for the purposes of proceedings under section 201(9).
(2)
A Local Commissioner and a person discharging or assisting in the discharge
of a function of a Local Commissioner may not be called upon to give evidence
in any proceedings (other than proceedings within paragraph (b) or (c) of
30
subsection (1)) of matters coming to their knowledge in the course of an
investigation under this Chapter.
206
Permitted disclosures of information by Local Commissioner
(1)
A Local Commissioner may disclose to Her Majesty’s Chief Inspector of
Education, Children’s Services and Skills any information obtained by the
35
Local Commissioner under or for the purposes of this Chapter if the
information appears to the Local Commissioner to relate to a matter in respect
of which the Chief Inspector has functions.
(2)
A Local Commissioner may disclose to the Parliamentary Commissioner for
Administration any information obtained by the Local Commissioner under or
40
for the purposes of this Chapter if the information appears to the Local
Commissioner to relate to a matter in respect of which the Parliamentary
Commissioner has functions.
(3)
A Local Commissioner may disclose to the Information Commissioner any
information obtained by the Local Commissioner under or for the purposes of
45

Apprenticeships, Skills, Children and Learning Bill
Part 10 — Schools
Chapter 2 — Complaints: England
121

this Chapter if the information appears to the Local Commissioner to relate
to—
(a)
a matter in respect of which the Information Commissioner could
exercise any power conferred by—
(i)
Part 5 of the Data Protection Act 1998 (c. 29) (enforcement);
5
(ii)
section 48 of the Freedom of Information Act 2000 (c. 36)
(practice recommendations); or
(iii)
Part 4 of that Act (enforcement); or
(b)
the commission of an offence under—
(i)
any provision of the Data Protection Act 1998 other than
10
paragraph 12 of Schedule 9 (obstruction of execution of
warrant); or
(ii)
section 77 of the Freedom of Information Act 2000 (offence of
altering etc. records with intent to prevent disclosure).
(4)
A Local Commissioner may disclose to a local education authority (within the
15
meaning given by section 12 of the Education Act 1996 (c. 56)) any information
obtained by the Local Commissioner under or for the purposes of this Chapter
if the information appears to the Local Commissioner to relate to a matter in
respect of which the authority has functions.
(5)
A Local Commissioner may disclose to the Secretary of State any information
20
obtained by the Local Commissioner under or for the purposes of this Chapter
if the information appears to the Local Commissioner to relate to the Secretary
of State’s functions under section 211.
(6)
Nothing in section 205(1) applies in relation to the disclosure of information in
accordance with this section.
25
207
Law of defamation
(1)
For the purposes of the law of defamation the following are absolutely
privileged—
(a)
the publication of any matter in communications between a governing
body and a Local Commissioner, or any person discharging or assisting
30
in the discharge of a function of a Local Commissioner, for the purposes
of this Chapter;
(b)
the publication of any matter by a Local Commissioner or by any
person discharging or assisting in the discharge of a function of a Local
Commissioner, in communicating for the purposes of this Chapter with
35
a person mentioned in subsection (2);
(c)
the publication of any matter in preparing, making and sending a
statement in accordance with section 202;
(d)
the publication of any matter by inclusion in an adverse findings notice
published in accordance with section 203(3), (4) and (5) or (6);
40
(e)
the publication of any matter by inclusion in a statement or summary
published or supplied under section 204;
(f)
the publication of any matter contained in a report by a Local
Commissioner which has been made available to the public, being
publication by inclusion in a report made or published under section
45
210.
(2)
The persons mentioned in subsection (1)(b) are—
(a)
the governing body;

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Part 10 — Schools
Chapter 2 — Complaints: England
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(b)
the complainant (or, if the complainant is the pupil, a parent of the
complainant);
(c)
Her Majesty’s Chief Inspector of Education, Children’s Services and
Skills;
(d)
the Parliamentary Commissioner for Administration;
5
(e)
a local education authority (within the meaning given by section 12 of
the Education Act 1996 (c. 56));
(f)
the Secretary of State.
208
Consultation with Parliamentary Commissioner for Administration
(1)
Subsection (2) applies if, at any stage in the course of an investigation under
10
this Chapter, a Local Commissioner forms the opinion that the matters which
are the subject of the investigation include a matter which could be the subject
of an investigation by the Parliamentary Commissioner for Administration in
accordance with the Parliamentary Commissioner Act 1967 (c. 13) (“the 1967
Act”).
15
(2)
The Local Commissioner—
(a)
must consult the Parliamentary Commissioner for Administration
about the matter; and
(b)
where a complaint was made about the matter must, if the Local
Commissioner considers it necessary, inform the complainant of the
20
steps necessary to initiate a complaint under the 1967 Act.
(3)
Consultation under subsection (2)(a) in relation to a matter under investigation
under this Chapter may be about anything relating to the matter, including—
(a)
the conduct of any investigation into the matter; and
(b)
the form, content and publication of any report or statement of the
25
result of such an investigation.
(4)
Subsection (5) applies if, at any stage in the course of conducting an
investigation under the 1967 Act, the Parliamentary Commissioner for
Administration forms the opinion that the complaint relates partly to a matter
which could be the subject of an investigation under this Chapter.
30
(5)
The Parliamentary Commissioner for Administration—
(a)
must consult the appropriate Local Commissioner about the complaint;
and
(b)
where the Parliamentary Commissioner considers it necessary, must
inform the person initiating the complaint of the steps necessary to
35
initiate a complaint under this Chapter.
(6)
Where a Local Commissioner is consulted about a complaint under the 1967
Act by virtue of subsection (5), subsection (3) applies (with the necessary
modifications) as it applies in relation to consultations held by virtue of
subsection (2).
40
(7)
Section 11(2) of the 1967 Act (secrecy) does not apply in relation to the
disclosure of information in the course of consultations held in accordance
with this section.