Discipline: changes to the law reflect tough times for staff

Just in case you thought you had at last caught up with changes to the law and guidance governing school discipline, be warned, the next plank of changes is about to land on your desk with a resounding thud.

There will be major changes to the law on school discipline. These come into effect between April and September 2007. This article will look broadly at the changes, and point you to sources of further information. In future articles, when the changes are finalised and have come into force, we will be providing more detailed guides.

• NEW LAW ON DISCIPLINE

Legislation on behaviour policies and related areas came into force on 1 April. This legislation appears in sections 88-96 of the Education and Inspections Act 2006.

The new law follows a report by the practitioners' group on school behaviour and discipline. As a result of this report, the Government set out its commitments for improving school discipline — in the White Paper, Higher Standards, Better Education for All.

The 2006 Act carries forward those commitments, including the establishment of a statutory power to enforce school discipline, and more specific measures relating to excluded pupils and to parental responsibility for the behaviour of children.

The school behaviour policy

• Governors’ responsibilities

Section 88 (section numbers given from here on refer to the Education and Inspections Act 2006) defines the responsibilities of the governing body for establishing the principles behind a behaviour policy.

Written statement of principles

Governors must make and review a written statement of general principles to guide the head teacher in determining measures to promote good behaviour.

The governors must have regard to national guidance. This covers all maintained schools (community; foundation; voluntary; community special; foundation special; maintained nursery), pupil referral units and non-maintained special schools.

• Head teacher’s responsibilities

Section 89 says that the head teacher must establish and maintain a behaviour policy for the school that:

• promotes self-discipline, respect for others and proper regard for authority
• prevents bullying
• ensures that tasks are completed
• leads to an acceptable standard of behaviour by pupils

The head must determine the behaviour policy with a view to 'securing that pupils complete any tasks reasonably assigned to them in connection with their education'.

The head must follow the governing body's statement of principles and have regard to any guidance they give. The head must also decide what standard of behaviour will be acceptable — in so far as this is not set out by the governing body

Off the school site
The head can include in the policy measures to regulate the behaviour of pupils when they are off the school site, or not under the control of a staff member. Such a situation arises, for example, on the journey to and from school, or at work experience placements.

In writing — and publicised
The head teacher must set out the behaviour policy in a written document and publicise it by making it generally known to staff, pupils and parents. In particular, the head teacher should bring it to their attention at least once a year.

REVISED GUIDANCE ON BEHAVIOUR POLICIES AND USE OF FORCE
This revised guidance was issued for informal consultation between December 2006 and February 2007, to accompany the above changes in the 2006 Act, the final version of which should have been issued in time for when the new law came into force in April.

The guidance is meant to be the centrepiece of a suite of new and updated guidance on behaviour-related issues. It is intended to be a source of reference for schools on legal powers and duties, with a focus on explaining what these mean in practical terms.

It is designed to be web-based, but hard copies are available to schools on request (so maybe not such a loud thud after all).

What’s in it?
The draft version explains the rights and responsibilities of schools, pupils and parents to ensure an orderly climate of learning. It then gives statutory guidance for governors (that is, to which they must have regard) on their duties in relation to the school behaviour policy, and non-statutory guidance for head teachers and other school staff on:

• developing and communicating their policy
• what the power to discipline means
• regulating pupils' conduct and disciplining them for misbehaviour outside school premises
• promoting and rewarding good behaviour
• punishing poor behaviour (the use of disciplinary sanctions)
• detention
• confiscation (including retention and disposal) of inappropriate items
• taking account of special educational needs, disability and circumstances of other vulnerable pupils

Each section clearly describes what the law provides for and then gives further information on what the law means for schools in practical terms.
The use of force is a complex area.

It is important that schools read any final guidance document in conjunction with existing guidance such as DfES/0242/2002 — this is the guidance on using restrictive physical interventions with children and adults who display extreme behaviour in association with learning disability or autistic spectrum disorder.

EXCLUSIONS GUIDANCE AND DRAFT REGULATIONS
These revised versions have been issued for public consultation between February and 18 May 2007, to be published in July for implementation from September 2007. They mainly reflect the changes in the 2006 Act.

You can view the consultation at: www.dfes.gov.uk/consultations/conResults.cfm?consultationId=1458 

Proposed changes

• when deciding to exclude a pupil the head teacher should ensure that a record be kept of his or her actions and of those of other staff (paragraph 21 f)
• further guidance on breach of school rules on appearance (paragraph 24 e)
• revised guidance on what actions a school should take following a fixed-period exclusion (paragraphs 35-37)
• new material on reintegration interviews (paragraphs 38-40)
• changes to the guidance on what actions should be taken following a permanent exclusion (paragraphs 47-48)
• revised guidance on behaviour parenting orders and contracts (paragraphs 41-43)
• revised guidance on looked-after children (paragraphs 63-66)
• revised model letters
• new guidance for exclusions panels on combined hearings and factors to consider when deciding whether or not to uphold an exclusion (paragraphs 109,110,145,146)

REVISED GUIDANCE ON PARENTING CONTRACTS AND PENALTY NOTICES
This is a limited consultation between February and 18 May 2007, the final document to be published in July for implementation from September 2007, alongside the revised exclusions guidance. 

New law will allow:

• schools and local authorities to offer parenting contracts as an earlier intervention — before excluding a pupil
• schools to apply for behaviour-related parenting orders
• schools to apply for parenting orders where a pupil has 'seriously misbehaved', regardless of whether s/he has been excluded
• penalty notices to be available for parents of pupils who are found during the first five days of an exclusion in a public place during school hours, without reasonable justification

The revised guidance will replace and revise existing guidance (DfES/1790/2005). See: www.dfes.gov.uk/behaviourandattendance/guidance/Penalty%20Notices/Guidance.cfm

DRAFT GUIDANCE ON SCREENING OR SEARCHING FOR WEAPONS
This has been issued for consultation between February and 15 May 2007, as the power in section 45 of the Violent Crime Reduction Act 2006 is due to come into force on 31 May. The guidance is due to be published at the same time.

Head teachers will be able to screen pupils, and will soon have a power to search (without consent) pupils whom they suspect are carrying a knife or other weapon. They will also be able to authorise school staff to undertake such a search.

The draft guidance advises on all aspects of screening and searching pupils, including:

• authorisation/consents
• human rights issues
• staff training
• what is 'reasonable suspicion' (which allows a search to take place)
• special educational needs' considerations
• liaison with the police and insurance providers

Non-contact screening
It also has information and advice on the power to undertake non-contact screening of pupils with electronic arch or wand. You can see it at: www.dfes.gov.uk/consultations/conDetails.cfm?consultationId=1443

FAIR AND CORRECT?
It is hoped that the guidance on how to use the additional powers being given to schools to ensure good behaviour and discipline will assist schools to apply the new law correctly and fairly.

WHAT’S NEW
The Act includes specific new provisions on detentions (replacing section 550B of the Education Act 1996) and on items confiscated from pupils.
The Act also re-enacts other existing legal provisions on:

• the responsibilities of governing bodies for discipline
• determination by the head teacher of a behaviour policy (section 61 of the School Standards and Framework Act 1998)
• physical restraint of pupils (section 550A of the 1996 Act)

Governors are required, before making or revising the statement of principles, to consult:

• the head teacher
• registered pupils
• parents of registered pupils
• anyone working at the school with whom they consider consultation appropriate

Penalties
Section 90 defines 'disciplinary penalty' as a penalty imposed on a pupil by any school at which education is provided for him or her, where his or her conduct (including off school premises) falls below the standard that could reasonably be expected because (for example) s/he fails to follow a school rule or an instruction given by a member of staff.

When can you impose penalty?
Section 91 specifies conditions that make lawful the imposition of a disciplinary penalty (other than exclusion) on a pupil, such as:

• that the penalty does not breach any statutory requirement or prohibition (e.g. in sex or race discrimination legislation)
• that the penalty is reasonable in all the circumstances (e.g. that the punishment is proportionate and that any relevant personal characteristics of the pupil have been taken into account)
• that the decision to impose the penalty must be made by a member of the school staff

Detention
Section 92 specifies conditions that make the detention of a pupil outside school sessions lawful.

For a detention during a break on the same day (e.g. at lunchtime), the head must have made the school's policy on detention outside school sessions known within school and to parents.

For evening or weekend detention, the pupil must be below 18, the detention must be on a 'permitted day of detention' (a school day, a Saturday or Sunday during term or an INSET day) and the pupil's parent must have been given at least 24 hours' notice.

In considering the reasonableness of the imposition of a detention, regard must also be had to whether the pupil’s parent can make suitable travelling arrangements.

Use of force
Section 93 enables a member of staff to use reasonable force to prevent a pupil from committing an offence, causing personal injury, damaging property or doing something that prejudices discipline at the school,
re-enacting s550A of the Education Act 1996 with minor changes.

Confiscation
Section 94 protects staff against civil or criminal liability where a lawfully confiscated item is retained or disposed of.

This section does not apply where an item is seized under s550AA of the Education Act 1996 (as inserted by the Violent Crime Reduction Act 2006 dealing with the seizure of knives, blades or offensive weapons or any other thing which there are reasonable grounds for suspecting is evidence in relation to an offence, found in the course of a search of pupil).

The draft version sets out the legal situation (section 93 of the 2006 Act above) and explains:

• what schools should do in terms of policies and procedures
• who is authorised to use force
• staff training issues
• when force can be used
• what constitutes 'reasonable force'
• special considerations for pupils with special educational needs and disabilities
• reporting and recording incidents
• post-incident support
• how to deal with complaints

The consultation deals mainly with the new 'Day 6' provisions. These include a new legal duty on schools (for fixed-period exclusions) and on local authorities (for permanent exclusions) to provide 'suitable full-time education' from the sixth day of an exclusion.

There is a linked new duty on parents to be responsible for the whereabouts of their excluded child for the first five days of any exclusion. Parents must also attend mandatory reintegration interviews on the completion of a fixed period of exclusion.

Ingrid Sutherland is a solicitor, giving advice and training for the Advisory Centre for Education

FIND OUT MORE
Learning Behaviour — report of the practitioners' group on school behaviour and discipline www.dfes.gov.uk/behaviourandattendance/about/learning_behaviour.cfm, Oct 05
The Education and Inspections Act 2006 and its explanatory notes is at:  www.opsi.gov.uk/acts/acts2006a.htm
Good practice on behaviour improvement: www.dfes.gov.uk/behaviourimprovement

Guidance on the use of force
The revised guidance on the use of reasonable force is separate and will replace the old DfES circular 10/98.

This article first appeared in Education Law Update - May 2007