Exclusions: the new guidance and regulations explained
This Education Law Update article is from December 2006. To receive the latest issue, subscribe here.
Schools should take note of new reporting and training requirements, as well as changes to appeal panel representation rights, says Ingrid Sutherland
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: 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 Part 2: removing pupils from school site, decision to exclude Heads are advised to ensure that they: 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 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: 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 Part 4: responsibilities of the governing body Part 5: appeal panels 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. Part 6: police involvement and criminal proceedings 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: 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: Practical examples Finally the guidance gives practical examples of how some schools and local authorities are identifying: 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
This has been changed to read that pupils should be allowed, and encouraged, to give their version of events.
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.
and arrangements should be documented to remove any possibility of this being construed as an illegal exclusion.
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.
Exclusion reporting requirements for schools with more than three-term years are now covered.
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).
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.
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).
The head and governor members should be from the same phase and type (e.g. primary, secondary or special) as the excluding school.
There are new requirements.
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.
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.
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.
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.
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