Exclusions: the new guidance and regulations explained

JUST when you thought you knew the rules on exclusion, everything changes. During the Lords debate on the Education Act 2005, the Government made commitments to strengthen the voice of the child in the exclusions process. After the Steer Committee published its report into behaviour and discipline (October 2005), the Government confirmed that it would implement the recommendations to improve behaviour in school.

Finally, the Lords, in their judgement in Abdul Hakim Ali (See June 2006 ELU for more on this case), said that the law might be inadequate where there has not been a disciplinary offence but where a precautionary exclusion is necessary.

This article explains what has changed in exclusions law as a result, and outlines new guidance on unofficial exclusions.

NEW DOCUMENTS

These documents, which amend or replace existing regulations and guidance, came into force in September:

• The Education (Pupil Exclusions and Appeals) (Miscellaneous Amendments) (England) Regulations 2006
  (SI 2006/2189)
• Improving Behaviour and Attendance: Guidance on Exclusion from Schools and PRUs, Sept 2006
  (02017-2006BKT-EN)
• Effective practice for local authorities and schools in managing and reducing incidents of unofficial exclusion

AMENDMENT REGULATIONS (2006)

These amend existing regulations on:

• reporting requirements for heads of schools with more than three terms a year
• training requirements for appeal panel members and clerks
• changes to, and clarification of, representation rights at appeals

PRACTICAL IMPLICATIONS

Reporting: At present schools and PRUs must report to governors and LA within one day: permanent exclusions; fixed-period exclusions totalling more than five days in a term; and exclusions that mean a pupil misses a public exam.

In addition, schools with three terms a year must report fixed-period exclusions totalling five or fewer school days to their governors and LA once a term (three times a year). Now, schools with more than three terms a year, must report these shorter exclusions at least as often as three-term schools.

Training: new training requirements apply to governors and heads who sit on independent appeal panels. Panel members and clerks must get sufficient training (at least half a day) to understand: exclusions regulations and guidance; role of clerk and chair; race, disability discrimination and equality law; human rights law; procedural fairness and natural justice rules. Existing panel members and clerks can act pending training, but must ultimately meet training requirements.

Right to appear and be represented: It is now clearer who has rights at appeal hearings. A right of representation for heads is added. Parents and pupils of 18 or over, heads, governors and LAs can appear, make oral and written representations and be represented. Parents and pupils over 18, and heads, can be accompanied by a friend as an alternative.

REVISED STATUTORY GUIDANCE

Heads should be aware of the following main changes to the October 2004 exclusions guidance:

Part 1:  positive behaviour and early intervention

• Managing behaviour in schools
• ‘Consideration by special educational needs coordinator with colleagues of possible interventions within the school’ is added as a possible additional measure to minimise the number of pupils at risk of exclusion.
• Alternatives to exclusion
• The wording is changed from ‘internal seclusion’ to ‘internal exclusion’.

Part 2: removing pupils from school site, decision to exclude

• Factors to consider before making a decision to exclude
  This has been changed to read that pupils should be allowed, and encouraged, to give their version of events.
• Unofficial exclusions 
  There is a stronger emphasis on the illegality of sending pupils home to ‘cool off’, and on the need to follow formal procedures when excluding. There is no minimum length of exclusion. When pupils are sent home on disciplinary grounds even for short periods, this must be formally recorded as an exclusion.

Heads are advised to ensure that they:

• meet their legal duty of care towards pupils
• provide appropriate supervision whilst on site
• ensure parents are formally notified if a pupil must be removed from site
• take child protection issues into account
• do not contravene pupils’ human right to education

Removal of pupils from school in exceptional circumstances 

This section now deals only with cases where a pupil is accused of committing a serious criminal offence outside the head’s jurisdiction (e.g. during a weekend, school holiday, or off-site), where the head considers it appropriate to remove the pupil from the site, but there may be insufficient evidence to warrant exclusion.

The head still has a choice: either to authorise leave of absence for a fixed period with parental agreement, or to arrange for the pupil to be educated elsewhere. But guidance on what to do where there is police involvement for an incident on school premises, is now placed in paragraph 141.

An explanation is also added that if there is sufficient evidence to allow a head to consider excluding, then that is what s/he should do. If heads use the exceptional power to remove rather than exclude, their actions
and arrangements should be documented to remove any possibility of this being construed as an illegal exclusion.

If subsequent exclusion is a possibility, heads should make parents aware of this at the outset as it is more difficult to exclude for a past event as time passes.

Exclusion from pupil referral units

This confirms the right of teachers in charge of PRUs to exclude, and gives additional considerations when dealing with this sort of exclusion.

Disabled pupils

This section states that discrimination could arise if a pupil were excluded because of behaviour ‘related to’ a disability. In other words, the test is not as restrictive as before, when the behaviour had to be ‘caused by’ the disability.

More information is given about disability discrimination and the questions to be asked when considering exclusion of a pupil who may be disabled:

• Is the pupil disabled?
• Is the exclusion related to the disability?
• Would another pupil to whom the reason did not apply be treated in the same way?
• Can the exclusion be justified?

There is reference to training resources and practical examples.

Looked-after children  

Schools must treat sensitively all children ‘looked after’ by their LA (not just those in care, subject to a court order). They should encourage them to give their version of events, as support for them may not be ‘robust’.

Part 3: exclusion procedure: role of head teacher

• Informing parents
  If the pupil is 18 or over the head must notify him or her in a letter, stating how s/he may be involved in the governors’ review of the exclusion.
• Informing governing body and local authority
  Exclusion reporting requirements for schools with more than three-term years are now covered.  
• Marking attendance registers following exclusion
  There is information about attendance register marks (E: absent, no alternative provision; B: education off-site; N: absent, reason not known); and about removal of a pupil from the school roll under the pupil registration regulations (SI 2006/1751).

Part 4: responsibilities of the governing body

• Reviewing exclusions
  An excluded pupil under the age of 18 should be allowed, and encouraged, to attend the hearing and to speak on his or her own behalf, if the parent agrees. Documents should be sent to the excluded pupil if s/he is to attend the governors’ meeting.
• Procedure at governors meeting
  The governing body should allow, and encourage, the pupil to attend the meeting and speak, if the parent agrees (it was ‘requests this’ — so it appears that the burden to ask for this is no longer on the parent).

Part 5: appeal panels

• Composition of appeal panels
  The head and governor members should be from the same phase and type (e.g. primary, secondary or special) as the excluding school.
• Guidance on training for clerks and panel members
  There are new requirements.
• In advance of the hearing 
  This section reflects the changed regulations on representation rights at the hearing, including the right for parties to be legally represented (it is expected that the head and governing body would normally be jointly represented); and for the excluded child to be encouraged to attend the hearing if the parent agrees. The section now says that the clerk should circulate evidence at least five working days before the hearing. S/he must also circulate any disability discrimination claim and a locally prepared summary of the exclusions guidance.
• Reaching a decision
  Where a panel accepts that the pupil committed the offence in question, it must consider whether the response is proportionate (not, as previously, ‘right’). The panel must also be satisfied that the disciplinary process has been carried out without procedural irregularities of a kind that affect the fairness of the procedure or the governors’ findings.

Once satisfied on these points, it would be unusual for the panel to vary the governing body’s decision. The panel should not reinstate the pupil without good reason. There is no longer any mention here of the option not to reinstate where this is not practical — but the option remains.

• After the hearing
  The panel must give clear information about the behaviour for which the pupil has been excluded, so that parties can understand why the decision was made. Where the panel overturns an exclusion but does not direct reinstatement, it must explain why.

Part 6: police involvement and criminal proceedings

• Head’s decision to exclude
  If a head, having considered the evidence, decides that on a balance of probabilities, the pupil is likely to have committed the alleged offence, then normally the head may exclude the pupil if s/he represents a danger to others at school. If the evidence is not clear-cut, or still coming to light, the head teacher may exclude the pupil for a fixed period pending clarification.

UNOFFICIAL EXCLUSION

New guidance, Effective practice for local authorities and schools in managing and reducing incidents of unofficial exclusion (download from: www.dfes.gov.uk/exclusions/guidance/index.cfm) confirms that there is no legal basis for heads to send a pupil home for a disciplinary matter without following required legal procedures — even with the agreement of parents or carers.

This is not statutory guidance, it is recommended good practice. If schools do not follow it, they will not necessarily have to justify this. But do remember that para 22 of the statutory guidance (02017-2006BKT-EN), says: ‘Informal or unofficial exclusions are illegal’.

The guidance says that it would be ‘unofficial practice’ to send pupils home for:

• disciplinary reasons — without following the required formal exclusions procedures, or
• for indefinite periods (long or short) — which can result in the pupil not returning to school at all

Isn’t it an internal management issue?

Exclusion is not an internal management issue: it concerns the rights of the individual child and could expose the school to legal challenge.

Examples of unofficial exclusion include: pupils sent home or kept at home for ‘cooling off’, or whilst awaiting a reintegration interview; encouraging parents to home-educate; advising parents that if a pupil returns after a fixed-period exclusion s/he will be permanently excluded; asking disruptive pupils to stay off school for a particular reason — e.g. during an Ofsted inspection or for extended study leave.

In such cases, the school must not record pupils as ‘authorised absent’ or ‘attending’. It must not take them off the school roll unless they have another school place to go to. See revised pupil registration regulations (SI 2006/1751) for a list of grounds for removing a pupil from the school roll — www.opsi.gov.uk/si/si2006/20061751.htm

Key principles

The guidance gives local authorities and schools four key principles for effective management of exclusions:

1. senior LA strategic involvement
2. clear positive messages from schools (e.g. in behaviour policy and the school prospectus)
3. workforce training and support in managing disruptive behaviour
4. agreed, formal, well-defined processes and record-keepingwhen unofficial exclusions are taking place: formal lines of communication with other agencies and the voluntary sector to ensure sharing of information about children out of school; analysis of individual school data and follow-up of worrying patterns (there are new requirements for schools to report deletions from their school roll to the local authority in the 2006 pupil registration regulations, above); helping the public to inform the local authority of possible unofficial exclusion (confidential phone lines); examination of school exclusion records and the reasons for persistent non-attendance by Ofsted; truancy sweeps identifying unofficially excluded pupils and passing their details to the local authority

Practical examples

Finally the guidance gives practical examples of how some schools and local authorities are identifying:

•  
• how to stop unofficial exclusion: training for school governors and managers and meetings with the education welfare service; letters to schools from senior education officer; formal feedback on findings from data or register checks; heads challenging and supporting their peers, and drawing up an action plan.

IS THE LAW WORKING?

The Government’s aim to ensure that no child is missing from education will be hindered if there are unofficially excluded pupils. Many heads resent government interference in disciplinary matters, seeing it as an internal management issue — but only where decisions on pupil welfare are properly recorded can it be seen how well law and guidance is working.

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

FIND OUT MORE

The Education (Pupil Exclusions and Appeals (Misc. Amendments) (England) Regs 2006 (SI 2006/2189): www.opsi.gov.uk/si/si2006/20062189.htm

Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units, Sept 06 (02017-2006BKT-EN): www.teachernet.gov.uk/wholeschool/behaviour/exclusion/guidance

Effective practice for local authorities and schools in managing and reducing incidents of unofficial exclusion: www.dfes.gov.uk/exclusions/guidance/index.cfm

This article first appeared in Education Law Update - December 2006