Summary of Section 70 of the Education (Scotland) Act 1980
Under section 70 of the Education (Scotland) Act 1980, any interested party can make a complaint to the Scottish Ministers that a responsible body (the managers of a school or education establishment, an education authority or other persons) has failed to discharge a duty imposed on them by, or for the purposes of any enactment relating to education.
Following an investigation of the complaint, the Scottish Ministers may make an order declaring the responsible body to be in default in respect of the duty and requiring them to discharge the duty.
Section 70 also allows the Scottish Ministers to make such an order, following an investigation, without there first having been a complaint made by any interested person. These instances are rare.
The Education (Scotland) Act 2016 amended section 70 of the Education (Scotland) Act 1980 to provide the Scottish Ministers with a regulation-making power to make provision in connection with the procedure to be followed in relation to the section 70 process (including prescribing timescales). This document provides guidance on these timescales and process.
Further amendments were made to section 70 to ensure that no order could be made by the Scottish Ministers under section 70 in respect of Additional Support for Learning matters which are under the jurisdiction of the First-Tier Tribunal for Scotland Health and Education Chamber (" FTT"). As a result, the Scottish Ministers will not consider an issue or reconsider a decision which would be considered by the FTT.
However, the President of the FTT Health and Education Chamber has a power to monitor decisions of the Tribunal and refer matters of non-compliance to Scottish Ministers under the First-tier Tribunal for Scotland Health and Education Chamber (Procedure) Regulations 2017. Where the President becomes aware that a responsible body is not complying with a decision of the Tribunal, the matter could be referred to Scottish Ministers.
The Section 70 (Procedure) (Scotland) Regulations 2017 will be commenced on 10 January 2018 and provide for certain timescales to apply to the process. The regulations addressed a consistent concern that the current process is overly lengthy and does not bring direct benefits. The introduction of statutory timescales allows the process to continue to be robust whilst significantly shortening the time taken to reach a determination.