Education Act 1989

  • repealed
  • Education Act 1989: repealed, on 1 August 2020, by section 669(3)(b) of the Education and Training Act 2020 (2020 No 38).
10 Right of reconsideration

(1)

Subject to paragraphs (p) and (q) of subsection (6), any person’s parent may, in accordance with this section, require the reconsideration of—

(a)

any direction under subsection (1) of section 9 relating to the person; or

(b)

if the person is not an international student, the Secretary’s refusal to come to an agreement under that subsection relating to the person.

(2)

A requirement under subsection (1) shall be made to the Secretary in writing within 1 month of the direction or refusal concerned.

(3)

Subject to subsection (5), where a requirement under subsection (1) is made in respect of a direction given by the Secretary,—

(a)

the direction shall not take effect—

(i)

until the Secretary has reconsidered and confirmed it; or

(ii)

where a requirement is made under subsection (4)(c), until that requirement has been considered by an arbitrator and the parent concerned has been told of the arbitrator’s decision; and

(b)

no offence is committed under section 9(3) for so long as the direction has not taken effect.

(4)

Where a requirement is made under subsection (1), the following provisions apply:

(a)

if the requirement relates to a direction, the Secretary shall reconsider it and then—

(i)

confirm it, or cancel it and issue another, or cancel it and refuse to issue another, as seems appropriate; and

(ii)

notify the parent concerned in writing of the result of the reconsideration and the reasons for it:

(b)

if the requirement relates to a refusal, the Secretary shall reconsider whether or not the matter concerned should be agreed, and then—

(i)

agree or refuse to agree to the matter with the parent concerned, as seems appropriate; and

(ii)

notify the parent concerned in writing of the result of the reconsideration and the reasons for it:

(c)

a parent who is dissatisfied with the result of the reconsideration may, by notice in writing to the Secretary, require the result to be sent to an arbitrator.

(5)

Where—

(a)

a requirement has been made under subsection (4)(c) in respect of the result of the reconsideration by the Secretary of a direction under section 9(1); and

(b)

1 month after the Secretary notified the parent concerned of the name of a person to represent the Secretary in the appointment of an arbitrator, the Secretary’s representative and a nominee of the parent have not appointed an arbitrator,—

the direction shall forthwith take effect, and section 9(2) shall have effect accordingly.

(6)

Where a parent makes a requirement under subsection (4)(c), the following provisions apply:

(a)

the Secretary shall forthwith give the parent the names of 3 people:

(b)

each person shall, in the opinion of the Secretary, have experience in or expert knowledge of special education, but shall not be an employee of the Ministry, or an employee or trustee of a board:

(c)

within 14 days of being given the names, the parent shall tell the Secretary—

(i)

which one of the people is acceptable; or

(ii)

that none of them is acceptable, and the name of some other person who is:

(d)

if within 14 days of being given the names the parent tells the Secretary that one of the people is acceptable, the person concerned shall be the arbitrator:

(e)

if within 14 days of being given the names the parent does not comply with paragraph (c), the Secretary shall choose one of the 3 people to be the arbitrator:

(f)

if within 14 days of being given the names the parent tells the Secretary that none of the people is acceptable, and the name of some other person who is, the Secretary shall forthwith accept or reject the other person:

(g)

if the Secretary accepts the other person, the other person shall be the arbitrator:

(h)

if the Secretary rejects the other person, the Secretary shall forthwith tell the other person the name of a person to act as the Secretary’s agent in choosing an arbitrator; and the other person and the Secretary’s agent shall, as soon as is possible, choose the arbitrator:

(i)

once it is known who the arbitrator is, the Secretary shall give the arbitrator a copy of all the relevant documents:

(j)

the arbitrator shall give the parent notice in writing that—

(i)

the arbitrator has been appointed; and

(ii)

the parent may make written submissions:

(k)

on getting written submissions from the parent or 21 days after notifying the parent (whichever comes first), the arbitrator shall tell the parent and the Secretary when and where the arbitrator will hear the matter:

(l)

the parent (or a nominee), a representative of the parent, the Secretary (or a nominee), and a representative of the Secretary may take part in the hearing, and may require the child or other person concerned to be produced:

(m)

except as provided in this subsection, the arbitrator shall decide how the hearing proceeds:

(ma)

if, at the hearing, the parent of the person concerned produces evidence about the person that was not available to the Secretary when the Secretary reconsidered the relevant direction or refusal to come to an agreement under section 9(1),—

(i)

the arbitrator may not consider that evidence and must refer the case back to the Secretary:

(ii)

the Secretary must reconsider the decision that was the subject of the arbitration, and subsection (4) applies to the Secretary’s decision under this subparagraph with any necessary modifications:

(n)

subject to paragraph (ma), after the hearing the arbitrator shall either confirm the Secretary’s decision or direct the Secretary to make some decision that the Secretary could have made but did not:

(o)

the Secretary shall comply with any order made:

(p)

a parent has no right to require the reconsideration or reference to an arbitrator of a decision the Secretary has made pursuant to an arbitrator’s direction:

(q)

if the arbitrator confirms a decision of the Secretary to refuse to come to an agreement under section 9(1), no parent has a right to require the reconsideration or reference to an arbitrator of a further refusal made in respect of the same child or person within 12 months of the confirmation of the decision.

(7)

Subsections (1) to (6) come into force on 1 January 1990.

Section 10(1)(b): amended, on 30 August 2011, by section 12 of the Education Amendment Act 2011 (2011 No 66).

Section 10(3)(b): amended, on 23 July 1990, by section 5 of the Education Amendment Act 1990 (1990 No 60).

Section 10(6)(b): amended, on 28 February 2002, pursuant to section 95(1) of the Education Standards Act 2001 (2001 No 88).

Section 10(6)(ma): inserted, on 19 December 1998, by section 4(1) of the Education Amendment Act (No 2) 1998 (1998 No 118).

Section 10(6)(n): amended, on 19 December 1998, by section 4(2) of the Education Amendment Act (No 2) 1998 (1998 No 118).

Section 10 compare note: repealed, on 20 May 2010, by section 7 of the Education Amendment Act 2010 (2010 No 25).