Complex legal guidance on exclusion and reintegration has been updated to take Pupil Referral Units (PRUs) into account. Ingrid Sutherland thinks the detail is worth reviewing

The DCSF has introduced revised exclusions guidance, which came into force from 1 September 2008 — ‘Improving behaviour and attendance: guidance on exclusion from schools and Pupil Referral Units 2008’.

It is not a major revision, but as usual, the devil is in the detail. This article will review the main changes that schools need to be aware of.

Pupil referral units

The reason for the revision, just a year after the last major changes, is mainly to update the guidance with new requirements in regulations governing PRUs, which now have management committees that will perform the same functions as schools’ governing bodies in relation to exclusions.

  • Throughout the guidance, ‘head teacher’ now appears as ‘head teacher/teacher in charge’ and ‘governing body’ as ‘governing body/management committee’.

‘Back on track’ White Paper

A reference to ‘Back on Track’, the new strategy for transforming the quality of alternative educational provision for those not able to attend mainstream or special schools is added to the guidance.

The exclusions guidance now says that schools should intervene as early as possible to tackle emerging behaviour problems, including those masking underlying learning difficulties or disabilities, thereby minimising the need for permanent exclusion.

Pupils needs after exclusion

Local authorities need to arrange to assess a pupil’s needs after a permanent exclusion, as previously, but it is now added that this should involve the common assessment framework process, where one has not already been carried out.

Common assessment framework
This is a voluntary process, common to all children’s services, to help identify a child’s needs as early as possible and agree what support is appropriate. Resulting early intervention should help reduce the risk of problems reaching the point where exclusion is necessary.

Assessment may be undertaken as part of a pastoral support programme or at any stage, especially where there have been multiple fixed-period exclusions.

Where a child is receiving support from more than one agency, one practitioner should act as the ‘lead professional’ to co-ordinate support and provide a single point of contact for the child and family.

For more information about CAFs

Pupil participation

In all references to the ‘right’ of children to take part in exclusion and appeal procedures, ‘with parental permission’ has been removed and ‘taking account of their age and understanding’ has been added. Schools will have to be careful to pay this due regard.

Standard of proof

Rather confusingly, changes to this have been made inconsistently. In the September 2007 guidance, para 22 said that when ‘more serious allegations’ were involved, the ‘balance of probabilities’ standard required for the head, governors and independent appeal panel was that it had to be ‘distinctly’ more likely than not that the pupil had ‘committed the offence’.

In the revised guidance, when referring to the head teacher investigating more serious allegations, in determining whether it is more probable that the pupil did what s/he is accused of, it says that it has to be ‘more likely than not’ that the pupil ‘behaved as alleged’; i.e. ‘distinctly’ has been removed and ‘committed the offence’ has been replaced with ‘behaved as alleged’.

For the governing body and management committee meeting, ‘distinctly’ and ‘committed the offence’ remain, and for independent appeal panels, ‘committed the offence’ remains, but not ‘distinctly’. 

It is difficult to know how this will work in practice, except that at each stage of the process, the individual or body will have to have regard to the guidance that is appropriate to them.

Removal of pupils from school site

In addition to the existing power for head teachers to remove pupils from the school site in exceptional circumstances, the guidance explains that from January 2009, subject to parliamentary approval, the Education and Skills Bill will introduce a new power for governing bodies to arrange for pupils to receive educational provision off-site that is intended to improve their behaviour — for example, courses in anger management.

This may be useful for schools, but the power will have to be exercised with caution to avoid a potential disability discrimination claim.

Children with SEN
The paragraph on removal on medical grounds also now states:

‘It is not appropriate to send home children with SEN, with conditions such as ADHD and autism, purely for that reason and schools should arrange a statutory annual or interim/emergency review if they feel they are no longer able to meet a child’s needs. The child should not be sent home in anticipation of such a review’.

The guidance states that permanently excluded pupils with SEN statements must receive suitable full-time provision like any other excluded pupils. In some cases, a pupil’s statement will specify fewer or more teaching hours than required for her/his key stage, e.g. because of an associated medical condition. In such cases, local authorities should provide the number of hours set out in the statement.

Education during fixed-period exclusions

The guidance states: ‘For a maintained school, but not for a PRU’ the obligation to provide education continues and must be met during a fixed-period exclusion. This is correct with regard to PRUs, as this duty falls on their local authority. But it should state ‘relevant’ schools, as in law, these include academies, and they are covered by this requirement as well as maintained schools.

It also now states that, in addition to provision being made via reciprocal arrangements between schools, excluding schools can use PRUs, other external providers and e-learning. Such provision does not have to be made for pupils in the final year of compulsory education who have already taken (or missed) their public exams.

Linked to this, the guidance has added that ‘well planned ICT provision’ can be effective for excluded pupils, but it is critical that appropriate supervisory arrangements are in place, and it is not appropriate for everyone. Parents are not expected to provide supervision if the school is providing full-time education through ICT from Day 6.

Behaviour Improvement Programme schools

Local authorities no longer have to provide full-time education from the first day for every permanently excluded pupil if the school was in a behaviour improvement programme area. But as they continue to benefit from additional resources, they are strongly encouraged to do so as quickly as possible for vulnerable pupils — and must do so for all pupils from Day 6.

Reintegration and provision for excluded pupils

A definition is now usefully added, but it refers only to recommended minimum hours per week taught time, rather than anything more specific.

Guidance has been added on what reintegration entails and how individual reintegration plans (and what they should contain, including pastoral and educational objectives) should be drawn up within one month of a permanent exclusion being upheld by the governing body.
It clarifies that reintegration refers to longer-term planning for pupils’ reintegration into school or other suitable full-time education and is in addition to the LA’s Day 6 duty.

Permanently excluded pupils need to be in a new school or other long-term provision as quickly as possible for their full education to continue. Often this will follow a period in alternative provision tackling their individual needs and the issues that led to their exclusion, but for some pupils, an early start in a new school is the best solution.

Reintegration needs to be pupil-focused. For older pupils an early start in FE may be a better option.

Disability discrimination

In the light of the June 2008 House of Lords’ judgement in the London Borough of Lewisham v Malcolm, the ‘comparator’ (the person to whom the potentially discriminated disabled child should be compared) has changed to a non-disabled pupil who behaved in the same way as the disabled pupil.

Previously, it was a non-disabled pupil who did not behave in the same way as the disabled pupil,
as it was assumed that the reason for the disabled pupil’s behaviour was related to her or his disability.

This is a contentious judgement as it narrows the likelihood of disability discrimination being found, and brings the UK into potential conflict with EU law. The Government may well take the opportunity to change the law in the Employment Bill, which is now before parliament.

Details of the ‘disability equality duty’, which requires schools to have due regard to the need to promote equality of opportunity for disabled people, are given. These include the need to monitor the exclusion of disabled pupils, and to show in the school disability equality scheme what steps it is taking to deal with any disadvantages.

Complaints

The guidance adds that complaints should be first dealt with locally, directly with those involved, and then by:

  • the governing body or management committee and local authority
  • the ombudsman — where the complaint concerns maladministration of an independent appeal panel
  • the Secretary of State — for an academy appeal panel

The Secretary of State does not have power to substitute his or her judgement for that of the head, teacher in charge, governing body or management committee.

Head teacher’s attendance at appeal hearings

The guidance has added that, where a head teacher has left the school, the independent appeal panel can use its discretion to invite him or her to make representations.

Although this is a practical amendment, there may be issues of fairness in such an appeal, if the person who made the decision to exclude is not present to explain his or her decision and to be questioned.

More than one incident

The September 2007 guidance
stated that ‘if more than one incident of misconduct is alleged, the panel should decide in relation to each one’.

This is now expanded to explain that ‘if the pupil is specifically excluded for more than one incident of misconduct, the panel should decide in relation to each one’.

This distinguishes the situation where a school may provide a list of a pupil’s past behaviour to show ‘persistent disruptive behaviour’, where the panel would not have to make a finding of fact for each alleged incident.

The Bromley Case

Reference is added to this 2007 Court of Appeal case, which affects the way that independent appeal panels consider the option of finding that, although an exclusion was not justified, reinstatement is not a practical way forward.
The panel has to make two separate decisions on whether to:

  • uphold the exclusion
  • direct reinstatement

To do this, it needs to have evidence from the school or PRU as to why the pupil was excluded and as to why reinstatement should not be directed.

It is contrary to the rules of natural justice for the parents to be unaware of the arguments put by the school or PRU against reinstatement and so be unable to tackle them specifically.

If the school or PRU’s reasons for excluding and objecting to reinstatement are the same, and the exclusion is not upheld, then a panel is likely to direct reinstatement.

So any representation from the head or teacher in charge objecting to reinstatement should usually be different from that advanced in support of the decision to permanently exclude.

Freedom of information and data protection

Reference is made to these issues when considering the record of proceedings of an appeal panel. There is a cross reference to additional guidance on these matters in the School Admissions Appeals Code.

Financial arrangements

In the 2007 version of the guidance, information about arrangements
for money to follow permanently excluded pupils was only provided online. It is now included in the hard copy as Part 7.

A good balance

Busy schools may despair that there is yet another version of this complex guidance to get to grips with. But the changes are not major, and strike the right balance between individual rights and those of the school community.

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

Find out more

  • Access the revised exclusions guidance
  • For guidance on exclusion in PRUs:
    • Education (Pupil Exclusions and Appeals) (PRUs) (England) Regulations 2008 (SI08/532)
    • paras 54-56 of Sept 08 guidance for specific guidance on PRU exclusion procedures
  • R v Independent Education Appeal Panel of the LB of Bromley and Governing Body of the Coopers Technology College [2008] ELR 12
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