Katie Michelon reminds us of the law in the area of exclusions and examines some recent developments around ‘unofficial exclusions’ and schools’ powers to direct pupils to receive behavioural provision away from mainstream education

What is the most recent guidance on exclusions for schools?
Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units (2008), which came into force on 1 September 2008, is the most recent guidance. The DCSF issued this revision to the 2007 version to take exclusion from pupil referral units (PRUs) into account.

Do I need to comply with the 2008 guidance?
By law, headteachers, teachers in charge of PRUs, governing bodies, local authorities and Independent Appeal Panels (IAPs) must have regard to the guidance when making decisions on exclusions and carrying out the exclusions procedure. There would need to be a very good reason for departing from the guidance.

What does the 2008 guidance cover?
The 2008 guidance covers exclusions in quite a broad sense. As well as addressing when it is appropriate to exclude a pupil and the procedure for doing so, it provides detail on removing pupils from a school site; the procedure for dealing with appeals and IAPs; how to cooperate with parents; the responsibilities of the governing body (or in a PRU, the management committee), and the requirement that money follows the pupil after exclusion.

The 2008 guidance also refers to the Back on Track white paper which sets out the government’s strategy for improving alternative provision for pupils, including those at risk of exclusion. Therefore, interwoven with the procedural and legal requirements is the message that early intervention is essential to address emerging behaviour problems and minimise the need for permanent exclusion.

Aside from this guidance, have there been other developments in exclusion law lately that I should be aware of?
There have been numerous cases since the new guidance was issued, covering aspects such as exclusion for one-off serious incidents of violence against a member of staff, the relevant standard of proof, the application of human rights to a hearing before an IAP and disability discrimination. Additionally, there has been commentary on what have come to be known as ‘unofficial’ or ‘informal’ exclusions.

What is an ‘unofficial’ exclusion?
An unofficial exclusion is where a pupil is sent home for disciplinary reasons by a member of staff who has not followed the procedures necessary for a formal exclusion. It includes pupils being sent home for short periods of time, for example if a head teacher thinks that a pupil needs some ‘cooling-off’ time following a particular incident. Very often, unofficial exclusions occur because staff are required to make quick decisions following behavioural incidents and also because of pressure from parents on headteachers not to exclude their child.

The 2008 guidance states that this practice is illegal; there is no basis in law for headteachers or staff to do this, even if the pupils’ parent/carer is in agreement. Whenever a pupil is sent home for disciplinary reasons it must formally be recorded as an exclusion, regardless of the period of time for which the pupil is away from school.

Are there any circumstances in which a head can remove a pupil from school without having to exclude?
The 2008 guidance does acknowledge that there may be exceptional circumstances where a pupil needs to be removed from a school site but exclusion is not appropriate. In such circumstances the governing body’s power (which may be delegated to the head) under section 29(3) of the Education Act 2002 may be used. Under this provision, the head is able to arrange for a pupil to be educated elsewhere without it amounting to an exclusion. However, it must be kept under review and be for as short a period as possible. The guidance encourages schools to use the power to exclude where possible rather than the power under section 29(3).

As pupils who need to be sent off-site usually have disciplinary problems, can this power be used to direct pupils off-site to receive training to improve their behaviour?
There has been commentary within the education sector recently about the number of pupils who are being directed away from mainstream education and sent on behaviour improvement courses. Section 29(3) should not be used to make pupils attend behaviour improvement courses. However, the Education and Skills Act 2008 will amend section 29 to specifically enable pupils to be sent off-site for educational provision/training to improve their behaviour.

How will the new power operate?
There has been criticism that the new power will be used by schools as another tool to ban difficult pupils from the classroom because headteachers are either unwilling or unable to exclude. However, section 154 of the Education and Skills Act also enables the Secretary of State to make regulations restricting schools’ exercise of this power. These regulations (the Education (Educational Provision for Improving Behaviour) (England) Regulations 2010) are due to come into force in September and should include details regarding the information that a governing body must provide when they require a pupil to attend off-site provision, the number of days for which such a requirement can be imposed and an obligation to review the requirement for the pupil to attend off-site provision (including the timing of reviews and who should be invited to attend review meetings).

A consultation on the proposed regulations (Consultation on Regulations and Guidance on School Governing Bodies’ Power to Refer Pupils to Off-site Provision to Receive Education or Training to Improve their Behaviour) was launched in December and will close in March.

Schools should be wary of resting on their laurels in the area of exclusions. The 2008 guidance remains relevant and should be followed as stringently as possible. In addition to case law on the existing law, the new power under the Education and Skills Act provides school with another means of addressing behavioural issues, thereby hopefully avoiding the need to permanently exclude in some cases, as encouraged by Back on Track. However, where a school is contemplating removing a pupil from school, it should carefully consider the powers that it has to do so to avoid an unofficial and unlawful exclusion.

This e-bulletin issue was first published in February 2010

About the author: Katie Michelon is a lawyer at Browne Jacobson. To find out more about the legal services Browne Jacobson provides in the education sector and to visit their website, please follow this link www.brownejacobson.com.