Carol Anderson: Time right for education commissioner

The Education Act 1989 is being reviewed, so now seems an ideal time to address the lack of a specialist complaints review and resolution body for schools.

Establishing an education commissioner, like the Health and Disability Commissioner, would ensure consistency in resolving complaints and relieve pressure on other bodies that are currently being asked to address issues outside their remit.

The lack of any free, independent and flexible complaints resolution system standing between the school board and the courts, or the Education Council's disciplinary bodies, creates problems for parents and schools. Currently, parents work through the school's complaints procedure until they get to the board of trustees. However, if parents are dissatisfied with the board's response, there is no clear path to resolve their complaint.

It is not uncommon for parents to contact the Ministry of Education, the Education Review Office (ERO), the ombudsman, the police, and just for good measure, the media, either in rapid succession or all at once, in the hope that one of these organisations will "hold the school to account". Some feel they have no alternative but to go to the courts.

Neither the ministry nor the ERO are investigation bodies for individual complainants. The ministry may advise a school on how to manage an ongoing complaint. However, if it recommends that the board obtain an independent investigation, the school usually bears the cost.

The Ombudsman's Office has a heavy workload and is limited by its empowering act, so it cannot always deal with complaints as quickly or as flexibly as is needed for schools. The police are not equipped for dealing with parental complaints where a crime has not been committed. However, each organisation has to respond to the complaint, which means the school may be dealing with inquiries from multiple organisations.

This is anxiety-inducing and time-consuming for principals and boards, and frustrating for parents. Significant delays where the ombudsman or the courts are used can have a serious ongoing effect on a child's education. Into this mix comes the new Education Council, which will likely become another forum for complainants to target.

In the interests of student safety, the council has been given wide powers to investigate complaints against teachers. However, the council is a professional standards body, so its focus is on teacher conduct and competence. It is not a general complaint investigation and resolution body for the education sector.

This may not be immediately apparent to the public, as the council's online complaint form makes it easy for parents to file a complaint of any kind against a teacher or principal, sometimes without even raising the issue with the school first. Accordingly, there is a risk the council will have to deploy significant resource dealing with complaints from frustrated parents which essentially fall outside its remit. In contrast, there is a marked difference between how patient complaints about a health practitioner are handled under the Health and Disability Commissioner Act 1994.

Like the Education Council's disciplinary bodies, the professional disciplinary bodies of the Medical Council (for doctors) and the Nursing Council (for nurses) accept direct complaints from patients. However, the complainant is automatically referred back to the Health and Disability Commissioner in the first instance. It is usually only after a complaint has been fully investigated by the commissioner that the Medical Council or Nursing Council will consider it.

The purpose of the commissioner's act is to promote and protect the rights of consumers of health and disability services, and to facilitate the "fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights". The act allows for a flexible approach to complaints, and recognises that a formal investigation is not always required.

Complainants may be offered the services of a "patient advocate".

In many circumstances, an advocate to negotiate the education system would be very helpful for parents. A further advantage of the Office of the Health and Disability Commissioner is that it applies consistent standards and processes to complaint resolution across the health sector. It is difficult to understand why there is such a well-developed independent complaints investigation body in the health sector and none in the education sector.

Parent complainants are not routinely referred to the ombudsman as health sector complainants are referred to the commissioner, and the ombudsman does not have the commissioner's flexibility. Further, the commissioner's services are free to complainants and providers, whereas school boards have to pay to resolve difficult complaints with the same degree of independence. This is not affordable for small schools.

So, as complaints increase and complainants become more persistent, the time is right to establish a complaints resolution body similar to the Health and Disability Commissioner in the education sector.

Carol Anderson is a public and education law associate in the public and employment law firm Chen Palmer. She also works as an independent investigator in schools.
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