New exclusion rules (part 1): the head teacher's decision

2007 saw some important changes to the law on pupil behaviour and school discipline. We looked in some detail at these in our May and June issues (Education Law Update 70 and 71). The changes, in summary, were:

• new law on behaviour policies (in force from April). This appears in sections 88-96 of the Education and Inspections Act 2006
• revised guidance on behaviour policies
• revised guidance on use of force
• revised guidance on parenting contracts and penalty notices
• revised exclusions guidance.

 This is the first part of a two-part feature on the new exclusions guidance. Here we look at the main changes heads must be aware of for exclusion decisions made after 1 September 2007. The second part covers considerations for governors and independent appeal panels.

Applicability

Any exclusion decision made before September 2007 would have been covered by old guidance. Any governing body or independent appeal panel considering such a decision should be aware, then, that the head teacher will have based his or her decision on the old guidance. The governors and independent appeal panel will, of course, use the new guidance for their decision.

Uniform and appearance

A pupil can now be required to leave the school site, other than by exclusion, to remedy breaches of the school's rules on appearance or uniform. This counts as an 'authorised absence'.

• the school must first contact the parent and recorded the absence
• the school must consider the child's age and vulnerability, and the parent's availability
• the absence should be for no longer than is necessary, otherwise it may count as an unofficial exclusion

The decision to exclude

A decision to exclude for a fixed period should be taken on a balance of probabilities, only in response to breaches of the school's behaviour policy, including persistent disruptive behaviour, where these are not serious enough to warrant permanent exclusion, and where lesser sanctions such as detention are inappropriate.

• fixed-period exclusions should be for the shortest time necessary. Where such exclusions are not deterring poor behaviour, the school should consider other strategies
• only a head teacher can exclude, but other exclusion-related activities may be delegated

The pupil should be invited to state his or her case at all stages of the exclusion process, where appropriate, and with parental permission.

Record-keeping

The head should keep a written record of action taken (and copies of written records made by other members of staff), including any interview with the pupil. Witness statements must be dated, and should be signed, wherever possible.

Standard of proof

The basic standard is the civil standard of a 'balance of probabilities', which means that the pupil is more likely than not to have done what is alleged.
But the more serious the alleged offence, the better the evidence to substantiate the decision to exclude must be. This leads to a distinctly more likely than not standard (where the head may have to consider evidence of a pupil's past behaviour, if relevant to the seriousness of the present allegation).

Child protection issues

Heads must be sure to take child protection issues into account. When excluding a child, they must ensure that (bearing in mind age and vulnerability) a parent or carer is at home — and that the child is not placed at risk by, for example, being left to wander the streets.

Unauthorised exclusion

Be careful not merely to send a child home. The new duty for local authorities to identify pupils not receiving education will mean that the local authority must challenge the school for this illegal practice.

Removal in exceptional circumstances

Where a head removes a pupil from school by arranging for him or her to be educated elsewhere, this should be continued for no longer than is absolutely necessary.

Removal on medical grounds

Para 32 of the guidance has now been corrected from 'removal on health and safety grounds' to 'removal on medical grounds'. Schools must record this as 'authorised absence'.

Health and safety considerations, including a risk assessment, can contribute to a school's case for exclusion, but cannot in themselves be grounds for exclusion, which can only be for disciplinary reasons.

Similarly, pupils cannot be sent home on health and safety grounds for their own protection because they are being bullied.

Fixed-period exclusions

Records of a pupil’s fixed-period exclusions should be transferred to his or her new school promptly.

A fixed-period exclusion does not have to be continuous, so if a pupil is attending school three days a week, and an FE college the other two, and receives a five-day exclusion from school, this could be served for three days in one week and two the next.

Lunchtime exclusions

Lunchtime exclusions do not count towards the school's duty to make Day 6 provision. Taking into account the child's age and vulnerability, the head should ensure that a parent or carer has been contacted and is available to arrange collection and supervision of the pupil during the lunchtime exclusion.
Lunchtime exclusions should not be used for a prolonged period — the suggested maximum is a week.

Day 6 provision

The school's obligation to provide education continues after a fixed-period exclusion. Parents are not responsible for making educational provision for their excluded child, but must co-operate with the school.

If an exclusion lasts six school days or longer, the school must arrange suitable full-time education from and including the sixth school day — ‘Day 6 provision’.

There is a new duty on parents , during the initial five days of an exclusion, to ensure that their child is not present in a public place during normal school hours without reasonable justification. The parent can be given a penalty notice and face prosecution if s/he does not pay it.

A head, when considering an exclusion that would result in Day 6 provision, should plan:

• to make suitable full-time provision available to the pupil from the required time
• to ensure that work is set and marked during the first five school days of exclusion
• to ensure that the parent is fully informed of his or her rights and responsibilities during the first five days
• how the time might be used to tackle the pupil's problems
• what support will help the pupil reintegrate, including reintegration interview arrangements

Parenting contacts

A school can not require a parent to sign a parenting contract as a condition of a child being reinstated. Signing can not be a condition for being admitted to a school, or for not being excluded from it.

If a parent refuses or fails to engage with the school or local authority in attempting to improve the child's behaviour and 'the requisite standard of misbehaviour is met' (behaviour that has or could have resulted in exclusion), the school or local authority may consider applying to a magistrates' court for a parenting order.

Procedure AFTER permanent exclusion

The local authority's duty during the first five days (not 'school' days) of a permanent exclusion is to assess the pupil's needs (including any SEN) and how to meet them.

The local authority should arrange a meeting with the parents to discuss the options within the first week of the exclusion, as from the sixth school day, the local authority must ensure that suitable full-time education is provided.

A parenting contract or order is a possibility before the pupil's behaviour deteriorates to the point where exclusion is the only appropriate response.

Behaviour outside school

A school's behaviour policy may now regulate pupils' behaviour where the pupils are neither on school premises nor in the charge of school staff, where it is reasonable to do so.

The school's policy should provide for the circumstances where the school may discipline pupils for bad behaviour outside school.

The old guidance stated that behaviour outside school on school business 'is' subject to the policy. It now states that it 'may be' subject — a subtle, but possibly important change. Heads should thus be careful to justify any decision to exclude for behaviour outside school.

Administrative changes

• There are new legal requirements for what heads must notify parents about, such as reintegration interviews and Day 6 provision (see paras 73-84).
• From October there will be a database on Teachernet of all exclusion officers in England, with their email addresses.
• Attendance code D (dual registration) replaces code N
• (absent: reason not known), for those excluded pupils attending alternative provision, as an alternative to code B (education off-site).

Planning and resources

The revised guidance is substantially the same as its former version, but some of the changes have major planning and resource implications for busy heads.
Schools must check their standard exclusion letters against model exclusion letters at the end of the revised guidance to ensure that they contain all the correct information, given the new duties imposed.

Reintegration interviews and provision for excluded pupils
The revised guidance does not apply to independent schools, city technology colleges, city colleges for the technology of the arts, sixth form colleges and academies (although via their funding agreements, academies must have exclusion procedures consistent with those in the guidance).

But the requirement for schools to arrange reintegration interviews and provision for excluded pupils from the sixth day of exclusion (see facing page) does apply to academies, city technology colleges and city colleges for the technology of the arts — as these arrangements apply to 'relevant schools', which include them.

Exclusion of vulnerable groups

Disability
The section on disabled pupils has been expanded to include a more detailed definition of 'disability' — and the questions that heads must consider when deciding whether to exclude a pupil who may be disabled have been made clearer.

Race relations
Local authorities will wish to monitor their schools' exclusion data to see if schools' policies are having a disproportionately adverse effect on pupils from particular racial groups.
If it is apparent that there is a pattern of higher exclusion among a particular racial group, then the school should draw up an action plan to tackle the behaviour of pupils in that group — and any other predisposing factors, such as staff perceptions of pupil behaviour, that may be giving rise to this pattern.

Looked-after children
The section on looked-after children has been redrafted to stress the importance of raising the educational attainment of this particularly vulnerable group. Exclusion of children in care should be an 'absolute last resort'.

Schools are expected to proactively support, and cooperate with, foster carers and the local authority in doing everything possible to avoid excluding a looked-after child.

There is mention of new initiatives such as virtual school heads and revising the national minimum standards for residential children's homes, and guidance to assist governors in this area.

Children in care
Schools should ensure that children in care attending appeal hearings 'have a voice and that they feel they are being listened to'. The hearing should take place in an atmosphere where they feel comfortable and able to speak openly.

Even where the local authority does not have parental responsibility (i.e. where the child is accommodated under section 20 of the Children Act 1989 but is not the subject of a care order), the child's social worker should be involved at the earliest opportunity where exclusion is a possibility.

To ensure that there is minimal disruption to the education of a child in care, where s/he is excluded, schools and local authorities, as appropriate, should arrange alternative provision from the first day of the exclusion. This is not a mandatory requirement.

Reintegration interviews
The head must arrange an interview with parents during or after:

• any fixed-period exclusion of a primary pupil
• a six-day (or more) fixed-period exclusion of a secondary pupil

The pupil should normally attend all or part of the interview, which should be conducted by the head or a senior member of staff.

• its purpose is to assist the reintegration of the pupil and promote improved behaviour
• there are time limits within which the interview must be held and it must be on school premises
• a parent's failure to attend will be one factor taken into account by a  court when deciding whether to impose a parenting order
• schools must keep records of a failure to attend a reintegration interview, and of any explanation the parent gives for such failure
• if the school can not arrange an interview on time, or the parents do not attend, this is not a reason for extending the exclusion.

The notice of a reintegration interview can be combined with one informing the parent of the exclusion or of the alternative educational provision during exclusion.

Find out more

Sept 07 revised exclusions guidance is available on the teachernet exclusion area

LA responsibility to provide full-time education and reintegrate pupils

Sixth day of exclusion guidance for schools, including PRUs

School discipline and pupil behaviour policies guidance

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