A raft of small changes add up to important new duties for all parties to the exclusion process. Ingrid Sutherland runs through what you need to know, in part two of this series

This is the second part of our feature on the new exclusions guidance, in force from September 2007. Previously we looked at changes relating to the headteacher’s decision to exclude (parts 1-3 of the guidance). This month we examine responsibilities of governors and independent appeal panels (parts 4-6).

RESPONSIBILITIES OF THE GOVERNING BODY


Reviewing exclusions

If the governing body cannot reinstate, it can still place a copy of its findings on the pupil’s school record. If the excluded pupil is aged 18 or over, s/he must be invited to the governing body hearing. Documents should be circulated at least five days before the hearing (before, it was simply ‘in advance’).

The hearing

  • The governing body should now consider ‘whether on a balance of probabilities the pupil did what s/he is alleged to have done’. The previous guidance did not state this.
  • The parents’ right to make representations to the governing body is not affected by the new requirement that full-time education be provided from the sixth day of exclusion.

Decision If the governing body cannot direct reinstatement because the period of exclusion has expired and the pupil has returned to school, it should annotate his or her school record with its findings. The governing body ‘must’ (was ‘should’) inform the pupil’s home local authority of the decision.

After the hearing

Exclusions can now only be expunged from the pupil’s school record through direction of the courts or rectification of personal data.

In deciding how long to retain school records, schools must comply with freedom of information and data protection legislation. For more details see the Freedom of Information Act pages of teachernet.

Excluded pupils now have no automatic right to enter school premises to take national curriculum tests (in addition to the previous public examinations). Entry is at the governors’ discretion.

INDEPENDENT APPEAL PANELS

  • Combined appeals
    • The guidance is much more detailed, following the 2006 Birmingham judgment, which dealt with combined appeals (click here for more details). 
    • If the issues raised by two or more appeals are the same or connected, the panel may decide to combine the hearings if it considers it expedient to do so. 
    • In such cases the panel must (was ‘should’) consult the parties and in particular check whether any party objects to this approach. The panel must be aware of possible conflicts between the parties involved.
    • The panel has a discretion to combine the appeals or refuse a request for combination, but must take all the relevant considerations into account, including the views expressed by the parties.
    • Words in bold are additions to previous guidance
  • Where appeals are not combined
    • If the panel decides not to combine appeals, or it is impracticable to do so, then to avoid unfairness and inconsistency, it is recommended that the same panel members hear the appeals.
    • A panel that has decided to combine (or not to combine) hearings arising out of the same incident must be prepared to justify the way that it has reached that decision, and should record its reasons for doing so. Such a decision is subject to judicial review.
    • Where a decision is made to hear appeals separately and the same panel members are not available, the panel should take practical steps to ensure that similarities or differences in the cases can be taken into account by different panels considering the cases arising from the incident.
    • Decisions about combining appeals should be taken by the panel, and not by the clerk to the panel or by the local authority that set up the panel.
    • A panel is not required to tell legally represented parties, who do not ask for combining, that appeals may be combined.
Exclusion after the same incident A completely new paragraph confirms that, in particular, where pupils have been permanently excluded as a result of their participation in the same incident, and their participation and mitigation are not substantially different, the appeal panel may consider it appropriate to combine all the appeals arising out of the incident.

This paragraph confusingly says the panel ‘should’ consult the parties (including the governing body as well as the parents and pupil) before deciding to combine appeals.

Composition of appeals panels The phrases: ‘every care must be taken to avoid bias or an appearance of bias’ and ‘prospective panel members should declare any such conflict of interest at the earliest opportunity’ are added in para 116. It is now clearer that the duty to ensure training is provided is on the local authority — which ‘must’, rather than (as formerly) ‘should’ provide it.

Role of the clerk

It is desirable for an independent source of legal advice to be present when the appellant or parent is legally represented. This is also the case if the school is represented.

In advance of the hearing

If either the head teacher or the governing body wishes to bring more representatives (or friends) than one each, the clerk should seek the panel’s agreement in advance, having regard to a reasonable limit on the numbers attending the hearing. There is, therefore, the same requirement on schools as on parents. It is clarified that the role of the alleged victim (if there is one), or his or her representative, at the hearing is that of a witness, and s/he is not able to question any of the parties.

Reaching a decision

There are similar changes to the details about the standard of proof required for heads and for governing bodies, except ‘distinctly’ is not added to the standard of ‘more probable than not’ for more serious allegations. It would appear that this is an error/omission.

The independent appeal panel should also have regard to ‘disability’ equality policies, as well as race equality policies.

Evidence Written evidence should be circulated five school (changed from ‘working’) days before the hearing, and there is no statutory time limit for submitting evidence.

Witnesses should not be present before giving evidence.

The balancing act In 2005, the Wolverhampton and Oxfordshire cases dealt with how independent appeal panels should balance the interests of the excluded pupil against those of the rest of the school community when considering whether to uphold an exclusion and whether to reinstate. The balancing act could lead to different decisions on these two issues.

Paragraph 148 now clarifies this situation by adding the words in bold: ‘In deciding on:

  • whether or not to uphold an exclusion and then
  • whether or not to direct reinstatement if the exclusion is not upheld
  • the panel must balance the interests of the excluded pupil, taking into account the seriousness of the incident leading to the exclusion, the pupil’s past behaviour and the consequences for him or her of the exclusion, against the interests of all the other members of the school community including the risk of undermining the head teacher’s authority and the general climate of discipline within the school.’

The independent appeal panel must indicate in its decision letter if it decides that reinstatement is justified but not practical.

RECORD OF APPEAL PANEL PROCEEDINGS There is slightly clearer wording about this in the new guidance, but it is a missed opportunity to clarify rights and responsibilities relating to these records and to freedom of information. The draft school admission appeals code, consulted upon in late 2006 (the final version of which is likely to be published and come into force in January 2008), has useful guidance on this. Referring to records of admission appeal hearings, it states that notes and records of proceedings taken by the clerk are the property of the appeal panel. Whilst these are not normally available to the parties after the hearing, they must be prepared and retained on the basis that they may be required to be disclosed, for example:

  • following requests from the local government ombudsman as part of his or her investigation of a complaint about the conduct of an appeal; or
  • where information is required as part of court proceedings, for example, where a panel’s decision is challenged by judicial review.

Freedom of Information Act Admission appeals panels (as well as exclusion independent appeal panels), as tribunals under the direct supervision of the council on tribunals, are not subject to the Freedom of Information Act 2000. Where the notes are held for administrative purposes by an admission authority that is subject to the Freedom of Information Act (for example, where a local authority’s legal department retains the notes on file, or the notes are retained in a school office — this would be similar for appeal panel notes) there is no obligation for the authority to comply with a request for copies of the notes. In this situation, either:

  • the authority will be holding the notes on behalf of
  • the panel, in which case the notes will not be held by
  • the authority for the purposes of the Freedom of Information Act 2000; or
  • the notes will fall within the exemption applying to court or tribunal records.

Where a request has been made under the Data Protection Act for access to personal data contained in the records of proceedings, whether that data should be disclosed will depend on a number of factors including the identity of the person making the request, the nature and individual circumstances of the appeal, the way in which the data is held and the interests of any third parties identified in the data.
Appeal panels or clerks may therefore wish to obtain their own legal advice before responding to such a request.

After the hearing The guidance now correctly states that a panel ‘must’ (not ‘should’) give reasons for its decision and adds: ‘If a school’s exclusion policy was at variance with the Department’s guidance, and the appeal panel considered it appropriate to give the local policy more weight, it must in its decision letter explain why’, in line with the judgement in the Birmingham case. A head ‘may legally’ (was ‘should’) remove a pupil’s name from the school roll the day after the conclusion of the appeal.

Judicial review after appeal

The test for judicial review is that a decision be unlawful or unreasonable, but the useful explanation of what ‘unreasonable’ means (‘in the narrow legal sense of ‘unreasonable’, i.e. irrational or perverse’), has been omitted from the new guidance.

POLICE INVOLVEMENT AND CRIMINAL PROCEEDINGS

Head teacher’s decision to exclude and consideration of circumstances by goverors

The standard of proof is now clarified (words in bold are additions): ‘… distinctly more likely that the pupil committed the alleged offence, then the head teacher may proceed to take a decision on exclusion. The head teacher should apply the normal principles having regard to the school’s behaviour policy, and consider whether exclusion is a proportionate response. ‘Normally we would expect the head teacher to exclude the pupil at that stage if it would be appropriate to do so, for example if he represented a danger to other persons at the school. ‘It may be advisable, where the evidence is not clear cut or is still coming to light, to make alternative provision, or where it is clear on balance of probabilities that the pupil committed the disciplinary offence, but the full circumstances and the seriousness have not yet been established, first to exclude the pupil for a fixed period.’ And in para 167 ‘which includes applying the balance of probabilities standard of proof’ is added to the governing body decision test.

Appeal hearings in parallel with criminal proceedings

Governing bodies now ‘must’ carry out their notification duties after making a decision (rather than ‘should’). Adjournment: local authorities’ new Day 6 duty (to provide full-time education from the sixth day of exclusion) means that if the panel adjourns, ‘the local authority will already have taken (was should take) steps to ensure the pupil is provided with suitable full-time education, and it must continue to do so  (was ‘pupil’s continuing education’) pending the hearing.’

MODEL LETTERS

These have all been placed in Part 7 and amended to conform to new law and guidance.

MISCELLANEOUS

The old Part 7 from the September 2006 version (local authority responsibility to provide full-time education and reintegrate permanently excluded pupils) is available as a separate web-based document.

MONEY TO FOLLOW PERMANENTLY EXCLUDED PUPILS

This is in Part 8 and is only available in the web-based version of the guidance. There are changes to some of the text and calculations, mainly to take account of the new Day 6 provision requirements. The ‘relevant day’ (for when the excluding school loses money) from 1 September 2007 is ‘the sixth school day following the head teacher’s decision to exclude the pupil permanently’. Before 1 September 2007, it was the date on which an independent appeal panel decided not to direct reinstatement, or, if there was no appeal, on the day after the last date on which an appeal might have been made or on the day (if earlier) that the relevant person told the local authority that s/he did not intend to appeal. The guidance also clarifies that if a pupil is reinstated by the governing body/independent appeal panel, a proportion of the funding deducted from the school’s budget for that pupil will have to be reallocated to the school.

CONCLUSION

Although the changes appear to be minor, the revised guidance confers new duties on all parties to the exclusion process. It is essential that school staff take into account the changes when making these difficult decisions.

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

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